Ali Mohammad Lone vs D/o Home Ut Of Jammu & Kashmir

ITEM 02 1 TA 1737 OF 2021

CENTRAL ADMINISTRATIVE TRIBUNAL

SRINAGAR BENCH, SRINAGAR
T.A. 1737/2021
Heard and Reserved on: 21-07-2026
Pronouncement of Order on: 27-08-2026
C O R A M
HON’BLE MS. JUSTICE RITU TAGORE, MEMBER(JUDL.)

Ali Mohammad Lone
S/o Ghulam Hassan Lone,
R/o Hardu Schichen,
Tehsil and District Anantnag.
……Applicant
By Advocate :
Mr. G Q Bhat
VERSUS

1.Union Territory of Jammu & Kashmir through
Commissioner/Secretary to Government, Home
Department, Civil Secretariat, Jammu/Srinagar.
2.Director General of Police, J&K.
3.Inspector General of Police, Home Guards/Civil
Defence/Auxiliary Police, J&K..
..….Respondents
By Advocate :-
Mr. Rais Ud Din Ganaie, DAG
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ITEM 02 2 TA 1737 OF 2021

O R D E R (FINAL)

JUSTICE RITU TAGORE, MEMBER [JUDL.]

01. The present Transfer Application arises out of SWP
No.1851/2011, wherein the applicant has laid challenge to
Order No.2561 of 2011 dated 05.08.2011 issued by the
Director General of Police whereby his claim for
appointment on compassionate grounds came to be
rejected. The applicant has also questioned the legality of
PHQ Order No.955 of 2003 dated 06.03.2003, whereby,
according to the respondents, the earlier approval
accorded for his appointment stood cancelled.
Consequential directions have also been sought
commanding the respondents to permit the applicant to
join service in pursuance of PHQ Order No.1974 of 2001
dated 06.06.2001 along with all consequential benefits.
02. The case projected by the applicant is that he belongs to a
family which suffered immense tragedy due to militancy.
It is pleaded that his two elder brothers, who were the only
earning members of the family, were killed by
unidentified gunmen on different occasions, one on
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ITEM 02 3 TA 1737 OF 2021

07.03.1997 and the other on 15.02.2000. Their deaths
allegedly reduced the family to penury, leaving the
applicant as the sole surviving son responsible for
maintaining his aged parents and other family members.
03.
Learned counsel for the applicant submits that keeping in
view the circumstances of the family, the applicant sought
compassionate appointment under SRO-43 of 1994. The
competent authority considered the case and issued PHQ
Order No.1974 of 2001 dated 06.06.2001 whereby
sanction was accorded for appointment of several
candidates as Constables in J&K Auxiliary Police on
compassionate grounds, subject to medical fitness and
CID verification. The applicant figures at Serial No.32 of
the said order.
04.
Learned counsel for the applicant submits that, despite
sanction for appointment having been accorded in favor of
the applicant, the applicant was never permitted to join
service, notwithstanding repeated representations to the
authorities. It is submitted that the applicant thereafter
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ITEM 02 4 TA 1737 OF 2021

instituted Writ petition No 1807/09, to which the
respondents filed their objections and contested the
claims. According to the applicant, the only defence taken
by the respondents therein was that, although sanction had
initially been accorded, vacancies were not available in
the Auxiliary Police and, consequently, the Police
Headquarters had requested consideration of the
candidates in other wings of the Police Department. It is
specifically contended that the respondents did not
disclose before the Hon'ble High Court that the applicant's
appointment had already been cancelled by any order
passed in the year 2003.
05. It is contended that, instead of faithfully complying with
the directions issued by the Hon'ble High Court in SWP
No 1807/09 to adjust/ post the petitioner on the appointed
post so long as the appointment order remained in force,
the respondents rejected the applicant's claim vide Order
No.2561 of 2011 dated 05.08.2011. According to the
applicant, it was only in the said order that the
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ITEM 02 5 TA 1737 OF 2021

respondents, for the first time, referred to PHQ Order
No.955 of 2003 dated 06.03.2003 allegedly cancelling the
earlier approval accorded in favor of the applicant.
06. Learned counsel submits that the alleged cancellation
order dated 06.03.2003 had never been served upon the
applicant nor was he ever informed about its existence.
According to him, the applicant came to know of the said
order only after issuance of the impugned order dated
05.08.2011. It is argued that an order adversely affecting
civil rights cannot operate against a person unless it is
duly communicated to him.
07. Learned counsel further contends that once the
respondents themselves failed to rely upon the alleged
cancellation order while contesting SWP No.1807/2009,
they could not subsequently introduce an altogether new
ground while considering the applicant's case pursuant to
the judgment dated 20.05.2011. According to the
applicant, the impugned order has been passed only to
defeat the effect of the earlier judgment and constitutes an
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ITEM 02 6 TA 1737 OF 2021

afterthought.
08. It is also submitted that the applicant cannot be faulted for
any delay in pursuing his claim. According to the
applicant, he continuously approached the authorities by
way of representations and thereafter remained engaged in
litigation. It is argued that if the respondents themselves
kept the matter pending for years, they cannot now take
advantage of their own inaction to defeat the applicant's
claim. In support of his contentions, learned counsel has
placed reliance upon Malaya Nanda Sethy v. State of
Orissa, Civil Appeal No. 4103 of 2022, reported as
2022 SCC OnLine SC 684, 2022 (II) OLR (SC) 1 and
2022 INSC 617 , to contend that the authorities are under
an obligation to consider and decide the claim for
compassionate appointment in accordance with policy
prevalent at the relevant time, with due promptitude, and
in any event, not beyond a period of six months from the
date of submission of the completed application. Further
reliance has been placed on Zahoor Ahmed Khan v.
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ITEM 02 7 TA 1737 OF 2021

State of J&K and Others, SWP No. 775/2018, decided
on 01.09.2022 to submit that, although Compassionate
appointment constitutes an exception to the general rule of
appointment to public posts through open competitive
selection, such deviation, in furtherance of its laudable
object, is a recognized and lawful mode of appointment to
public service, intended to save the family of a deceased
employee or a civilian killed in militancy–related
activities from destitution and starvation.
09.
Per contra , learned counsel appearing for the respondents
submits that the impugned order has been passed strictly
in compliance with the judgment dated 20.05.2011 after
examining the entire service record and other relevant
documents available with the Police Headquarters.
10.
Learned counsel submits that although the applicant's
name initially appeared in PHQ Order No.1974 of 2001
dated 06.06.2001, vacancies were not available in the
Auxiliary Police. Consequently, according to the
respondents, Police Headquarters modified the earlier
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ITEM 02 8 TA 1737 OF 2021

order and approved the applicant's appointment in J&K
Armed Police vide PHQ Order No.2696 of 2001 dated
02.08.2001.
11. It is the respondents' case that despite such approval, the
applicant failed to report before the concerned authority
for joining duties. Consequently, after considerable lapse
of time, the approval accorded in favour of the applicant
came to be cancelled vide PHQ Order No.955 of 2003
dated 06.03.2003. Therefore, according to the
respondents, by the time the Hon'ble High Court decided
SWP No.1807/2009, no appointment order remained in
force.
12. Learned counsel for the respondents submits that the
directions contained in the judgment dated 20.05.2011
themselves made the relief conditional by observing that
the applicant was to be adjusted only "if the appointment
order is still in force." Since, according to the respondents,
the appointment had already been cancelled in the year
2003, the respondents rightly rejected the applicant's
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ITEM 02 9 TA 1737 OF 2021

claim by the impugned order dated 05.08.2011.
13. Learned counsel further submits that the applicant
approached the authorities after an inordinate delay and
that the challenge to PHQ Order No.955 of 2003 is
hopelessly barred by delay and laches. It is further
contended that, with passage of time, the element of
compassion underlying compassionate appointment no
longer survives. It is contended that, in these
circumstances, the petition, being sans merits, deserves to
be dismissed on this ground alone.
14. I have heard learned counsel for the parties at length and
have carefully perused the pleadings and the material
placed on record.
15. The facts giving rise to the present proceedings are
substantially undisputed. It is not in dispute that PHQ
Order No.1974 of 2001 dated 06.06.2001 included the
applicant amongst the candidates approved for
appointment on compassionate grounds. It is equally not
in dispute that the applicant was never actually appointed
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ITEM 02 10 TA 1737 OF 2021

or permitted to join service. The dispute essentially
centers around the legal effect of the subsequent events
relied upon by the parties.
16. The principal questions which arise for determination are:
(i) whether the respondents could legitimately rely upon
PHQ Order No.955 of 2003 dated 06.03.2003 while
considering the applicant’s case pursuant to the judgment
dated 20.05.2011; (ii) whether the said order was ever
communicated to the applicant; (iii) whether the
respondents were justified in relying upon a ground which
had neither been disclosed nor urged by them in the
earlier round of litigation; and (iv) whether, in
consequence thereof, the impugned Order No.2561 of
2011 dated 05.08.2011 can be sustained in law?
17.
The foundation of the respondents' defence rests upon
PHQ Order No.955 of 2003 dated 06.03.2003, whereby,
according to them, the approval earlier accorded in favour
of the applicant stood cancelled on account of his failure
to report for joining. The impugned order dated
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ITEM 02 11 TA 1737 OF 2021

05.08.2011 proceeds on the premise that once the said
order came into existence, the applicant ceased to possess
any enforceable right under PHQ Order No.1974 of 2001.
It therefore becomes necessary to examine whether the
respondents were legally justified in placing reliance upon
the OrderNo.955 of 2003 dated 06.03.2003.
18. Before adverting to the rival contentions, it would be
appropriate to notice certain admitted facts emerging from
the record. It is not in dispute that the applicant's name
figured at Serial No.32 of PHQ Order No.1974 of 2001
dated 06.06.2001, whereby sanction was accorded for his
appointment as Constable in J&K Auxiliary Police on
compassionate grounds. This order, therefore, clearly
establishes that the applicant had fulfilled the basic
material criteria prescribed under the applicable policy for
appointment on compassionate grounds. It is equally
undisputed that, notwithstanding the aforesaid order, the
applicant was never actually permitted to join pursuant
thereto.
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ITEM 02 12 TA 1737 OF 2021

19. Equally, significant is the fact that, when the applicant
approached the Hon'ble High Court by way of SWP
No.1807/2009, seeking implementation of the
appointment order, the respondents entered contest and
filed their objections opposing the very claim. The
contents of those objections assume considerable
significance in the adjudication of the controversy at hand,
particularly because the grounds now sought to be urged
by the respondents are required to be examined in the
backdrop of the stand specifically pleaded by them at that
stage.
20. In paragraph 3 of the objections filed in SWP
No.1807/2009, the respondents pleaded that although the
applicant figured at Serial No.32 of PHQ Order No.1974
of 2001, vacancies were not available in the Auxiliary
Police and, therefore, Police Headquarters had requested
consideration of the candidates in other wings of the
Police Department. The respondents further stated that
certain candidates had subsequently been considered in
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ITEM 02 13 TA 1737 OF 2021

other wings of the Police Department.
21. Significantly, nowhere in the objections filed before the
Hon'ble High Court did the respondents disclose that the
approval accorded in favor of the applicant had already
been cancelled by PHQ Order No.955 of 2003 dated
06.03.2003. Had such an order in fact constituted the
principal reason disentitling the applicant from
appointment, nothing prevented the respondents from
specifically bringing the same to the notice of the Hon'ble
High Court while contesting SWP No.1807/2009.
22. The respondents thus, had a full and effective opportunity
to disclose and urge every ground available to them in
opposition to the applicant’s claim. The objections filed
by them were neither perfunctory nor merely formal in
nature; rather, they constituted their substantive response
to the applicant’s claim for implementation of the
appointment order issued under the compassionate
appointment policy and were duly considered by the
Hon’ble High Court while adjudicating the matter in the
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ITEM 02 14 TA 1737 OF 2021

writ petition SWP No.1807/2009. In this backdrop, the
existence or otherwise of a cancellation order directly
affected the applicant's entitlement and constituted a
material fact which ought to have been disclosed to the
Court. The respondents, however, chose not to rely upon
the said order and instead defended the matter primarily
on the ground relating to non-availability of vacancies.
23. It was after considering the pleadings of both parties that
the Hon'ble High Court disposed of SWP No.1807/2009
vide judgment dated 20.05.2011 directing the respondents
to adjust/post the applicant on the appointed post, if the
appointment order was still in force as on that date. The
respondents were further directed to pass appropriate
orders within four weeks from the date a copy of the
judgment was served upon them.
24. Pursuant to the aforesaid judgment, the respondents did
not implement the appointment order. Instead, while
passing the impugned order dated 05.08.2011, they relied,
for the first time, upon PHQ Order No.955 of 2003 dated
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ITEM 02 15 TA 1737 OF 2021

06.03.2003. Since the said order had admittedly been
passed in the year 2003 and had not been disclosed before
the Hon’ble High Court while contesting SWP
No.1807/2009, its subsequent reliance upon it assumes
considerable significance. The respondents cannot be
permitted to take advantage of their own failure to
disclose a material fact in the earlier proceedings,
particularly when the communication and legal operation
of the said cancellation order against the applicant have
not been established.
25. This principle is founded not merely upon procedural
propriety but upon the broader doctrine of waiver and
acquiescence Having failed to raise the ground despite
having every opportunity to do so, the respondents must
be taken to have waived their right to urge the same at this
belated stage. To permit them now to resurrect such a
ground would enable them to successively improve their
defence from one round of litigation to another , thereby
rendering the finality of judicial determination wholly
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ITEM 02 16 TA 1737 OF 2021

illusory. The court cannot countenance a situation where a
party, having contested a claim after being afforded full
and adequate opportunity and having had the matter
adjudicated upon, is permitted to circumvent or defeat the
effect of such adjudication by advancing, in a subsequent
proceeding, a ground which was available to it and which
might and ought to have been raised in an earlier
proceeding.
26. Significantly, it is not the case of the respondents that they
were unaware of the cancellation order or that it came to
be passed subsequent to the earlier adjudication. The
alleged cancellation, therefore, cannot be treated as a
subsequent event furnishing an independent basis for
raising a ground which had not been urged earlier.
27.
More importantly, the applicant has consistently pleaded
that the alleged cancellation order was never
communicated to him and that he became aware of its
existence only upon receipt of the impugned order dated
05.08.2011. This assertion has been reiterated not only in
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ITEM 02 17 TA 1737 OF 2021

the writ petition but also in the rejoinder affidavit. The
respondents, on the other hand, have asserted that the
cancellation order was passed by the competent authority.
However, except making a bald assertion regarding the
existence of the order, the respondents have not placed
any material on record to establish that the said order was
ever served upon the applicant or otherwise brought to his
knowledge.
28. Mere existence of an order in departmental records does
not, by itself, establish that the order became operative
against the person whose rights were sought to be affected
thereby. Where an administrative order is relied upon to
visit a person with adverse civil consequences, the
authority must establish that the order was duly
communicated or otherwise brought to the knowledge of
the person concerned, particularly where a subsequent loss
of an accrued right or default on the part of such person is
sought to be founded upon the said order.
29. This aspect assumes particular significance in the facts of
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ITEM 02 18 TA 1737 OF 2021

the present case. The applicant continued making
representations to the authorities even after the alleged
cancellation order. He approached the Hon'ble Home
Minister, thereafter the Hon'ble Chief Minister, and
ultimately instituted SWP No.1807/2009 seeking
implementation of the appointment order. Had the
cancellation order been duly communicated, one would
ordinarily expect the applicant to challenge the same at
the earliest available opportunity. The conduct of the
applicant in continuously seeking implementation of the
original appointment order lends support to his assertion
that he remained unaware of the alleged cancellation.
30. Equally, the conduct of the respondents also does not
inspire confidence. Even while contesting SWP
No.1807/2009, they omitted to disclose the existence of
the cancellation order and continued to defend the matter
principally on the issue of non-availability of vacancies.
This omission cannot be lightly brushed aside, for it
relates to the very foundation upon which the impugned
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ITEM 02 19 TA 1737 OF 2021

order dated 05.08.2011 subsequently came to be passed.
31. The respondents have also attempted to justify the
impugned order by contending that the applicant did not
report before the concerned authority pursuant to the
modified PHQ Order No.2696 of 2001 dated 02.08.2001.
However, the record placed before this Tribunal does not
demonstrate that the modified order itself was ever
communicated to the applicant or that he was informed of
the authority before which he was required to report.
32.
In the absence of any material establishing
communication of the modified order, it would be difficult
to hold that the applicant deliberately failed to report for
duty. A finding of default necessarily presupposes
knowledge of the obligation sought to be enforced. Where
the respondents themselves fail to establish that the
relevant order was communicated, the consequence
flowing therefrom cannot automatically be attributed to
the applicant.
33. The respondents have also raised the plea of delay and
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ITEM 02 20 TA 1737 OF 2021

laches. However, the facts of the present case do not
indicate that the applicant remained indolent or abandoned
his claim. On the contrary, the record reveals a continuous
pursuit of his grievance by way of representations
followed by judicial proceedings. The earlier writ petition
culminated in a judgment dated 20.05.2011 directing
consideration of his claim. The present proceedings arise
directly from the order passed pursuant to the said
judgment. In these circumstances, the delay, if any, cannot
be viewed in isolation from the continuous course of
litigation between the parties.
34. The applicant is now approximately 53 years of age.
Having regard to the considerable passage of time and the
nature of the post in question, actual appointment on
compassionate grounds may no longer be practicable or
permissible under the applicable rules. However, the
respondents cannot rely upon the passage of time, to the
extent attributable to their own failure to act upon the
applicant’s claim, without examining whether any
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ITEM 02 21 TA 1737 OF 2021

consequential or alternative relief is available to the
applicant under the applicable policy governing
compassionate appointment. The respondents shall,
therefore, consider the applicant’s claim in accordance
with the scheme and rules applicable to his case, including
the provisions, if otherwise attracted, relating to monetary
compensation in lieu of compassionate appointment.
35. It is also relevant to notice that the Government has, from
time to time, made provision for monetary compensation
in appropriate cases falling within the compassionate
appointment framework. The respondents have not
demonstrated from the impugned order that the
applicant’s entitlement to any such alternative relief was
examined. The competent authority shall, therefore,
examine whether the provisions of SRO-199 dated
04.07.2008 and Government Order No.893-GAD of 2008
dated 04.07.2008, or any other subsequent policy
provision applicable to the applicant’s case, are attracted
and, if so, determine the applicant’s entitlement strictly in
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ITEM 02 22 TA 1737 OF 2021

accordance with law.
36. The respondents have argued that compassionate
appointment is intended only to provide immediate
financial assistance and that the lapse of considerable time
has rendered the claim infructuous. The proposition, as a
general principle, cannot be disputed. However, the facts
of the present case stand on a different footing. The
applicant had been granted approval for appointment as
early as on 06.06.2001. Thereafter, according to the
applicant, he was neither permitted to join nor informed
about any subsequent modification or cancellation of the
approval. The applicant thereafter continued pursuing his
grievance before the authorities and ultimately before the
Hon'ble High Court. Thus, the delay cannot be attributed
solely to any inaction on the part of the applicant, and the
respondents cannot rely upon the passage of time arising
from their own failure to act as a ground to deny
consideration of such consequential relief as may
otherwise be available to the applicant under the
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ITEM 02 23 TA 1737 OF 2021

applicable scheme.
37. It is a settled principle of administrative law that the
validity of an administrative order must stand or fall on
the reasons contained in the order itself and cannot
subsequently be supplemented by fresh reasons through
affidavits or arguments advanced during the course of
litigation. The impugned order dated 05.08.2011
substantially rests upon the alleged cancellation order
dated 06.03.2003. Since the respondents have failed to
establish that the said order was ever communicated to the
applicant and since the said order was not even disclosed
before the Hon'ble High Court while contesting SWP
No.1807/2009, the foundation upon which the impugned
order rests becomes legally unsustainable.
38.
The respondents cannot be permitted to derive advantage
from their own omission in failing to communicate the
orders relied upon by them. Acceptance of such a
contention would enable an authority to defeat an accrued
claim merely by keeping an adverse order in its own
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ITEM 02 24 TA 1737 OF 2021

records without communicating the same to the affected
person, which would be wholly inconsistent with the
principles of fairness governing administrative action.
39. This Tribunal is conscious that compassionate
appointment cannot be granted as a matter of course and
that no direction for appointment can ordinarily be issued
unless the claimant satisfies the governing scheme. At the
same time, where the authorities themselves have
accorded approval, thereafter failed to communicate
subsequent orders affecting the rights of the beneficiary,
omitted to disclose such material facts before the Court in
earlier proceedings, and ultimately rejected the claim on
the basis of an uncommunicated order, such decision
cannot withstand judicial scrutiny.
40.
In the facts and circumstances of the present case, this
Tribunal is of the considered opinion that the impugned
Order No.2561 of 2011 dated 05.08.2011 cannot be
sustained in law. Equally, PHQ Order No.955 of 2003
dated 06.03.2003, having not been shown to have been
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ITEM 02 25 TA 1737 OF 2021

communicated to the applicant, cannot be relied upon to
defeat his claim.
41. Consequently, the present T.A. deserves to succeed.
42. Accordingly, the Transfer Application is allowed in the
following terms:
(i) PHQ Order No.955 of 2003 dated 06.03.2003 and Order
No.2561 of 2011 dated 05.08.2011, insofar as they relate to the
applicant, are hereby quashed and set aside . The applicant’s
case shall accordingly be considered with reference to the
appointment/approval accorded vide PHQ Order No.1974 of
2001 dated 06.06.2001, as modified vide PHQ Order No.2696
of 2001 dated 02.08.2001, subject to the directions contained
herein.
(ii) The respondents shall reconsider the applicant’s claim
for compassionate appointment under SRO-43 of 1994
afresh , in accordance with the policy and rules applicable to
his case. Such reconsideration shall take into account the
passage of time, the nature of the post, and the applicable
physical, medical and other mandatory requirements for
appointment in the Police Department. The quashing of the
aforesaid orders shall not, by itself, be construed as an
unconditional direction for appointment. The competent
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ITEM 02 26 TA 1737 OF 2021

authority shall determine whether the applicant can presently
be accommodated against the post for which approval was
earlier accorded or against any other permissible post for which
he is otherwise eligible and qualified. If appointment is not
legally or practically feasible, the competent authority shall
examine whether any monetary compensation in lieu of
compassionate appointment is available to the applicant under
the applicable scheme/rules.
(iii) The respondents shall specifically examine whether SRO-
199 dated 04.07.2008 and Government Order No.893-GAD of
2008 dated 04.07.2008, or any other subsequent policy/scheme
applicable to the applicant’s case, permits grant of monetary
compensation in lieu of compassionate appointment and, if so,
determine the applicant’s entitlement in accordance with law.
While undertaking such reconsideration, the respondents shall
take into consideration the observations made hereinabove.
(iv) The respondents shall complete the aforesaid exercise by
passing a reasoned, comprehensive and speaking order within a
period of eight weeks from the date of receipt of a certified
copy of this order and shall communicate a copy of the said
order to the applicant within fifteen days of passing the same .
43. Pending miscellaneous application(s), if any, shall also
stand disposed of.
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ITEM 02 27 TA 1737 OF 2021

44. No order as to costs.
45. Consign the file to the Record Room.



(JUSTICE RITU TAGORE)
Member(Judl.)

27-08-2026
DEVENDRA TRIPATHI


Digitally signed by Devendra Tripathi
DN: CN=Devendra Tripathi, E=
[email protected]
Devendra
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Location:
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Tripathi