Compassionate appointments governed by rules at employee's death time; later executive instructions cannot override statutory rules or prejudice due to delay.

ORDER

Per: - Rajinder Singh Dogra, Judicial Member

1. The applicant has filed the present Original Application under Section

19 of the Administrative Tribunals Act, 1985 seeking the following reliefs: -

a) To quash the impugned show cause notice dated 28.5.2018, A-

1, and irrelevant clause of appointment letter of 10th class as per New Rules (RR) at the time of issue of appointment as the same is not applicable being case of applicant is pending 04/10/1996 and came up for consideration 16/10/1999 as certified in the OA No. 395/JK/2009 and applicant is therefore governed by the old RR 1971 and even 2002 applicable prevailing at the time of applying for compassionate grounds i.e. 8th class qualification for the post of peon, Chow, Mazdoor for which applicant applied and claim is pending with the respondent as represented through legal notice dated 14/08/2013 challenging the appointment letter dt 31/12/2012 for which no reply from respondent received till to date.

b) The applicant being rendered 5 years of regular service shall not forced to under go probation period again as the competent authority already lifted the probation period after satisfactorily completion of probation period as per order No. 37/2016 as no rule is enacted by Govt of India to re-induct in probation period when the annual progress report for the last 5 years are very good in the trade work admitted by the respondent and probation period already satisfactory lifted.

c) That this Hon'ble Tribunal may also pass any other order for the grant of relief to the applicant which it may deem fit in the peculiar facts and circumstances of the case.

d) That costs of the application may also be awarded in favour of the applicant.

2. The facts of the case as averred by the applicant in his pleadings, are as follows: -

a) The applicant, Krishan Lal, aged about 44 years, is presently working as Peon (Group ‘C’) in the office of Garrison Engineer (MES) North, Akhnoor. His father, Late Shri Shiv Ram, who was serving as Valveman under the respondents, died in harness on 02.03.1996. On account of the sudden demise of the sole breadwinner, the family was left in indigent circumstances.

b) Immediately thereafter, on 04.10.1996, the applicant applied for compassionate appointment to the post of Peon/Chowkidar/Mazdoor in MES Department. At the time of submission of his application and on the date of death of his father, the Recruitment Rules in force (1971 Rules and later 2002 Rules) prescribed minimum educational qualification of 8th pass for the post of Peon. The applicant possessed the said qualification and was fully eligible.

c) The applicant’s case, however, remained pending with the department. It was considered on 16.10.1999 but no appointment was issued on the ground of non-availability of vacancy and existence of more meritorious claimants. The matter remained under consideration for several years without final decision. Aggrieved by inaction, the applicant approached this Tribunal by filing O.A. No. 395/JK/2009. Vide order dated 18.11.2009, the Tribunal directed the respondents to consider his case for compassionate appointment in accordance with rules.

d) Pursuant thereto, after further delay, the respondents issued appointment letter dated 31.12.2012 appointing the applicant as Peon against compassionate quota. However, the appointment letter contained a condition that the applicant shall acquire minimum educational qualification of 10^th pass within five years from the date of joining, failing which appropriate action would follow. It also placed him under trainee status.

e) The applicant joined service on 05.07.20