Notional seniority granted for compassionate appointment delayed by employer's illegal actions, excluding back wages.

ORDER

Per: - Rajinder Singh Dogra, Judicial Member

1.The SWP No.2489/2016 was transferred from the Hon’ble High Court of Jammu & Kashmir at Jammu and was registered as T.A No.6552/2021 by the Registry of this Tribunal.

2. The present matter was filed before the Hon’ble High Court seeking following relief: - a) Writ of Mandamus: directing the respondents to modify the order of appointment of the petitioner by granting notional/retrospective seniority with effect from the date of his application or from the outer date provided as limitation for applying/gaining eligibility for appointment under SRO 43/94 or at the best from the date when the respondents in pursuance to directions of this Hon'ble Court considered the case for the first time and illegally and arbitrary rejected the same on 29- 11-2001; and may also issue further - b) Writ of Mandamus: Commanding the respondents to grant all consequential service and other benefits to the petitioner retrospectively from the date of his application or from the outer date provided as limitation for applying/gaining eligibility for appointment under SRO 43/94 or at the best from the date when the respondents in pursuance to directions of this Hon'ble Court considered the case for the first time and illegally and arbitrary rejected the same on 29-11-2001; and may also issue.

c) Any other writ, order or direction deemed just and proper in the circumstances of the case in the interest of justice.

3. The facts of the case as pleaded by the petitioner in his pleadings are as follows: -

a) The present Transfer Application arises out of SWP No. 2489/2016, which stood transferred from the Hon’ble High Court of Jammu & Kashmir at Jammu upon constitution of this Tribunal and was registered as T.A. No. 6552/2021.

b) The applicant, Irshad Ahmed Malik, claims appointment on compassionate grounds under the Jammu & Kashmir Compassionate Appointment Rules, 1994 (SRO-43 of 1994), consequent upon the death of his brother, Late Farooq Ahmad Malik, who was working as a Food Inspector in the Medical Department and expired in harness on 23.05.2000 due to cardiac arrest.

c) At the time of death of the deceased employee, the applicant was unemployed and was residing with and dependent upon his deceased brother. The deceased left behind his widow, Mst. Tahira Nazneen, and two minor children aged about 5 and 8 years respectively. Though the widow was herself eligible for compassionate appointment under SRO-43 of 1994, owing to unavoidable domestic circumstances, she voluntarily relinquished her claim and submitted an undertaking that the appointment may instead be granted to the applicant, i.e., the brother of the deceased. Similar no-objection undertakings were also furnished by other family members.

d) The Sub-Divisional Magistrate, Bhaderwah, after due verification, issued a certificate certifying that the total monthly income of the family was merely %2,600/- and that the applicant, widow, and minor children were dependent family members of the deceased. The applicant further undertook to maintain the family of the deceased upon securing government employment.

e) The applicant had passed B.Sc. (Non-Medical) in 1988 and his date of birth, as per Matriculation Certificate, is 02.06.1965.

He, along with the widow, applied for compassionate appointment on 28.06.2000, i.e., well within the limitation period prescribed under SRO-43 of 1994.

f) Despite being fully eligible, the respondents failed to take a final decision on the applicant’s claim, compelling him to approach the Hon’ble High Court by filing SWP No. 1761/2001. The said writ petition was disposed of on 06.08.2001