- (1.) THIS petition has been preferred for seeking quashment of the orders of appointment of respondents -6 and 7 as Sales men in Food and Supplies Department, issued by respondent -5, Deputy Commissioner, Poonch under No. AC/425 -28 dated 29.7.2002 and AC/433 -36 dated 30.7.2002, being arbitrary, illegal and passed by incompetent authority in contravention of SRO 43 of 1994 and in violation of Articles 14 and 16 of the Constitution of India, by a writ of certiorari, in invoking the writ jurisdiction under Article 226 of the Constitution of India read with Section 103 of Constitution of Jammu & Kashmir.
(2.) PETITIONERS father late S. Inder Singh, while serving as Sales man in the Food and Supplies Department died in harness. Thereafter the petitioner was appointed as Weighman -Cum -Chowkidar in the pay scale of Rs. 2550 -3200/ - on compassionate ground under the provisions of SRO 43 of 1994 by an order of respondent -3, Director, Food and Supplies, Jammu vide No. 17 FSJ of 2002 dated 6.3.2002. It is further stated that the appointment of respondents - 6 and 7 has been made on compassionate grounds as Sales men in the grade of Rs. 3050 -4500/ - in the Food & Supplies Department by the respondent -5, Deputy Commissioner, Poonch without any authority and in gross violation of SRO 43 of 1994. It is stated that the orders of compassionate appointment could have been issued only by respondent -2, i.e. Commissioner Secretary to Government (GAD), J & K Govt. and the Deputy Commissioner was not competent. Further contention of the petitioner is that though he was eligible to be appointed on a class - III post of Sales man being qualified with matriculation, but was appointed as Weighman -Cum -Chowkidar. That the orders of appointment in respect of respondents -6 and 7 having been issued by incompetent person being Deputy Commissioner, Poonch in violation of provisions of SRO 43 of 1994 and the same are illegal and untenable in law.
(3.) CONSIDERED the objections and the writ petition is admitted to hearing. Objections filed be the respondents are treated as counter as prayed for. On the consensus of the learned counsel for the parties, the writ petition is taken up for final disposal. The private respondents in their reply submitted that the Dy. Commissioner has been empowered to make the appointment where death of a family member has been caused due to militancy related incident in terms of SRO 211 of 1995. It is further submitted that subsequently vide SRO 88 of 1996, the Deputy Commissioners have also been empowered in terms of Rule 3 of SRO 43 of 1994 to make appointment of a family member of a deceased member of Armed Forces or Para -Military Forces. The petitioner is not eligible for appointment of class -III post being only a matriculate. It is further submitted that since the petitioner has accepted the appointment of Class -IV post without any grievance or protest, he cannot subsequently press his claim for appointment against class -III post based on eligibility.;