N. Paul Vasanthakumar, C.J.
1. This appeal is filed by the appellant against the order dated 17.07.2009 of the learned Single Judge made in SWP no. 120/1999 dismissing the writ petition seeking compassionate appointment.
2. The case of the appellant before the learned Single Judge was that he is dependent of late Ghulam Nabi Banday (Road Supervisor) who died in harness on 24.09.1987. The deceased was having a service tenure of 12 years as permanent service on the date of his untimely death. Due to the untimely death of the father of the appellant, the appellant discontinued his studies in the year 1993 after passing 8th standard and the income of the family was less than Rs. 500/- per month as per the certificate issued by Tehsildar Handwara. The appellant applied for compassionate appointment under SRO 194/283 of 1991 and his application was forwarded to respondent no.4. A communication was sent by the 2nd respondent to the first respondent stating that the post of the deceased employee is still vacant and has been reserved for the writ petitioner. In the meanwhile SRO 43 of 1994 was issued. The 2nd respondent by communication dated 24.01.1997 conveyed the whole case history of the appellant and requested the respondent no.1 that the claim of the writ petitioner may be examined by the administrative department. No action being taken the appellant filed the writ petition which was dismissed by the learned Single Judge by stating the reason that as per SRO 43 of 1994 a candidate has to acquire the qualification within six months from the date of death of the deceased employee and the writ petitioner having studied upto 8standard and matriculation being the minimum qualification for Class IV post, and the writ petitioner having not attained the age of 18 years in the year 1987, the appointment cannot be claimed. As a consequence this appeal has been filed.th
3. The contention of the appellant in this appeal is that at the time of death of his father, he was only 8 years old and his younger brother was 4 years old. The appellant could pass 8th standard examination in the year 1993 and thereafter approached the respondents for appointment on compassionate ground under SRO 283 of 1991 and the said request should have been considered as per the rules existing than. It is stated that respondent no.1 on 26.12.1997 gave a positive direction to the 2nd respondent to appoint the appellant at the earliest, still no appointment order was issued. It is also the contention of the appellant that his claim should be considered as per SRO 283 of 1991 and not as per SRO 43 of 1994. It is stated that a similar issue was considered by a Division Bench of this Court reported in 2013 (2) JKJ 126 (HC) (S. Vikram Singh v. State of JandK and ors) and the learned Single Judge has not followed the said judgment and granted the relief to the appellant.
4. We have heard Mr. M. A. Wani, learned counsel for the appellant and Mr. Q. R. Shams, Dy.A.G for the respondents.
5. The fact that the appellant s father was employed permanently and he died while in service and the fact that appellant was a minor on the date of death of his father and his educational qualification is 8th standard, are not disputed. The fact that application was submitted by the appellant in the year 1993 and recommendations were also made to consider his case, as stated in the affidavit, has not been denied. SRO 43 of 1994 is relied on to reject the claim of the appellant. Which rule is applicable to consider the claim of the appellant as his father died prior to issuance of SRO 43 of 1994, was already considered by the Division Bench of this Court in 2013 (2) JKJ 126 (HC) ( S. Vikram Singh v. State of JandK and ors). In the said judgment it is held that the rule applicable is the rule when cause of action has accrued i.e. the time of death of the Government employee and as per the earlier Rules prior to issuance of SRO 43 of 1994, even a minor is entitled to compassionate appointment on attaining majority and only fact which has to be ascertained is to find out whether the family of the deceased Government employee continues to be in penury and compassionate appointment would mitigate such hardship. In paragraph nos. 15 and 16 of the judgment it is held thus:-
15. The litmus test in all such cases is whether the person claiming benefit of appointment on compassionate grounds continues to be exposed to the hardship that befell him because of the sudden demise of Govt. employee on whom he was dependent. The appellant lost his father when he was one and half years old. The accident that claimed life of his father, left him permanently disabled for rest of his life. Only because the appellant has lived on handouts and leg-ups during his childhood and somehow kept his head above water, must not persuade us to believe that he has survived the worst years and does not face any hardship because of the tragic demise of his father at the time he was a suckling baby. When we assess whether a family or a member thereof that has lost the only breadwinner has been able to tide over the crisis, we should not only be influenced by the fact that the members of the family because of one or the other reason have been able to survive. Death of a dependent of a Govt. servant who has died in harness, is not the test to satisfy ourselves that such dependent has not survived the crisis in which he was plunged because of sudden demise of the Government servant. We have to be compassionate in the matter as the label given to the Rules would suggest and examine whether the dependent of a Government servant who died in harness claiming appointment on compassionate grounds would have been better of had the Government servant not lost his life.
16. In the present case, the appellant before us, was an infant on the date he lost his father. His will power did not allow the tragedy that befell him, to dampen his spirit and blunt his urge to pursue his academic career. He with his 75% permanent disability continues to be exposed to the hardship with which he was visited on death of his father. The appellant therefore is entitled to be considered for appointment on compassionate grounds in terms of Rules occupying the field on the date of death of his father.
6. Hon ble the Supreme Court in the decisions reported in (2007) 9 SCC 571 (State Bank of India and ors v. Jaspal Kaur) and (2009) 7 SCC 295 (Maharani Devi and anr v. Union of India and ors) considered similar issue as to the claim of compassionate appointment of a candidate and the Rule which will apply for considering such claim. Hon ble the Supreme Court held that the effect of subsequent policy decision will not affect the accrued right of a candidate seeking compassionate appointment and the consideration of the claim should be under the Rules which prevailed on the date of death of the Government servant as the right of the legal heir got crystallized on the date of death of the Government servant. It is also to be noted at this juncture that retrospectively amending Rule, fixing strict norms, is also not valid as accrued vested right under the scheme in vogue cannot be taken away as reported in (1997) 6 SCC 623 (Railway Board v. C. R. Rangadhamaiah). If the amended scheme is beneficial to the candidate the same can be considered as held by Hon ble the Supreme Court in the decision reported in (2015) 3 SCC 399 (Vijaya Ukarda Athor (Athawale) v. State of Maharashtra and ors).
7. In the light of the law laid down by Hon ble the Supreme Court as well as by this Court, the order passed by the learned Single Judge is set aside and respondents are directed to consider the claim of the appellant seeking compassionate appointment due to death of his father, based on the Rules which were prevailing at the relevant point of time i.e. date of death of the appellant s father and pass fresh orders within a period of 8 weeks. It is made clear that while passing orders as per than existed rules, it is open for the respondents to consider the financial status of the appellant and his family members as on today.
8. No costs.