JUDGMENT :

Sanjay Dhar, J.

Appellant-writ petitioner has challenged judgment and order dated 05.04.2019 passed by the Writ Court in SWP No.86/2017, whereby, the writ petition, seeking a direction to consider the petitioner’s placement to the position of Forester from the date he was appointed to the position of Forest Guard on compassionate basis, has been dismissed.

2. The case of the appellant-writ petitioner before the Writ Court was that upon death of his father in harness, he was appointed as a Forest Guard vide Forest Order No.128 of 2006 dated 26.06.2006 on compassionate basis in terms of SRO 43 of 1994, the Jammu and Kashmir (Compassionate Appointment) Rules, 1994. It was contended by the writ petitioner that at the relevant time he was holding qualification of 10+2 and, as such, in terms of Rule 3 of SRO 43 of 1994 he was entitled to be appointed on higher post of Forester and not on the post of Forest Guard. It was urged by the writ petitioner that after joining as Forest Guard, pursuant to his appointment vide order dated 26.06.2006, he made a representation before respondent No.2 on 19.07.2007, but the same was not considered by the respondents. The writ petitioner was promoted to the post of Deputy Forester in terms of Forest Order No.281 of 2012 dated 20.10.2012 and thereafter in the year 2016 he again made a representation to the respondents for redressal of his grievance. The same is stated to have been rejected by respondent No.3 in terms of Communication No.CCF(K)Adm/2016/3945-46 dated 21.12.2016.

3. The aforesaid action of the respondents was challenged by the writ petitioner primarily on the ground that because of his higher qualification he was entitled to be appointed as a Forester and that in certain other similarly situated cases appointments to the posts of Forester on compassionate basis have been made by the respondents.

4. The writ petition came to be dismissed by the Writ Court vide impugned judgment dated 05.04.2019 on the grounds that the petitioner has no statutory right for appointment to a higher post and that the petitioner having accepted his appointment to the post of Forest Guard and having remained silent for a number of years, has waived his right to seek appointment to a higher post.

5. The appellant has challenged the aforesaid judgment of the Writ Court on the ground that as per Rule 3(1) of Jammu and Kashmir Compassionate Appointment Rules, 1994 he was entitled to be appointed on a higher post on account of his higher qualification, which fact, according to the appellant, has been ignored by the learned Writ Court. It has been further contended that the writ petitioner has throughout the period of his service agitated his right for being appointed on the higher post by filing representations in the year 2007 as well as in the year 2016, as such, it cannot be stated that he has waived his right to seek appointment to the higher post. It is finally contended that the learned Writ Court while passing the impugned judgment has ignored the ratio laid down by this Court in Vishiv Deep Singh v. State of Jammu and Kashmir and Others 2017(1) SLJ page 110.

6. We have heard learned counsel for the parties and perused the record.

7. Certain facts which emerge from the record and which are not in dispute are required to be noticed. The appellant-writ petitioner was appointed as a Forest Guard on compassionate basis in terms of Forest Order No.128 of 2006 dated 26.06.2006 upon the death of his father. He joined the service and continued to function as such until he was promoted as Deputy Forester in the year 2012. The writ petitioner filed a representation before respondent No.2 urging that he may be given appointment as Forester from the date he was appointed as Forest Guard as similar treatment has been given to certain other persons. The representation was submitted by the writ petitioner in the year 2016 and the same was not entertained by respondent No.3 on the ground that the claim of the wri