The retrospective application of SRO-120, imposing new conditions for compassionate appointments, is unconstitutional as it violates accrued rights established under prior rules.

ORDER

Per: - Shri Rajinder Singh Dogra, Judicial Member The instant Original Application has been filed by the applicants under Section 19 of Administrative Tribunals Act , 1985 making therein the following reliefs: -

“i. Allow the instant application of the applicants along with costs;

ii. Declare SRO-120 dated 05.03.2018 as illegal and unconstitutional to the extent it has been made applicable to the pending/rejected cases on the date of issuance of the said SRO;

iii. Direct the respondents to consider the applicant for appointment against any suitable post in accordance with the Jammu and Kashmir Compassionate Appointment Rules, 1994 as they stood on 27.01.2010 and without taking into account SRO-120 dated 05.03.2018;

iv. Quash the Communication bearing No:DHS/GS-5/NG-8613 dated 04.09.2019 sent by the Deputy Director, Health Services (HQ), Jammu to the Chief Medical Officer, Kathua.”

2. The petitioner, Mr. Sanjeev Kapoor, is the son of deceased, who was employed as a Community Health Officer. On 27.01.2010, his mother tragically passed away while still in service. The petitioner, whose father had already passed away, was financially dependent on his mother. Consequently, upon her death, he applied for compassionate appointment under the provisions of SRO-43 of 1994, a rule designed to provide relief and assistance to the families of deceased government employees by offering employment to their dependents.

3. The petitioner submitted his application for compassionate appointment in accordance with the rules governing such appointments. His application was processed and recommended through various departments, including the Directorate of Health Services and the Principal Secretary of Health and Medical Education Department. However, despite these recommendations, the petitioner’s case was rejected on the grounds that he had exceeded the age limit prescribed under the rules, which is 37 years at the time of the deceased’s passing.

4. The issue of age relaxation was raised, and the petitioner had specifically requested that the upper age limit be relaxed, as had been done in similar cases in the past, where other dependents in similar circumstances were granted relaxation of the upper age limit for compassionate appointment. The petitioner was over-aged by approximately 2 years at the time of his mother’s death, as he was 39 years and 2 months old at that time.

5. Dissatisfied with the denial, the petitioner approached the Hon’ble High Court of Jammu and Kashmir and filed a writ petition seeking judicial review of the decision to reject his compassionate appointment. In his petition, the petitioner argued that similar dependents had been granted relaxation of the upper age limit, and there was no valid reason for denying the same to him. He also emphasized that the rejection of his case had no legal or factual basis, given the precedents set in other similar cases.

6. The writ petition was contested by the respondents, who argued that the petitioner did not meet the requirements under SRO-43 of 1994 due to the age limit issue. However, after hearing the arguments and reviewing the facts, the Hon’ble High Court allowed the petition on 07.09.2018, quashing the earlier rejection communication and directing the respondents to reconsider the petitioner’s case for compassionate appointment, based on the rules and precedents.

7. After the judgment, the petitioner approached the respondents to request the implementation of the court’s order. However, the respondents, instead of complying with the judgment, invoked a new argument under SRO-120 dated 05.03.2018, a subsequent amendment to the compassionate appointment rules. According to this SRO, a condition was introduced that applicants must be unmarried in order to be eligible for compassionate appointment.

8. The petitioner, being married, was now informed by the respondents that he could not be appointed due to his marital status. The respondents contended that SRO-120, as issued on 05.03.201