An uncommunicated cancellation order cannot defeat a compassionate-appointment claim.

The applicant challenged PHQ Order No. 2561 of 2011 dated 5 August 2011, by which his claim for compassionate appointment was rejected, and PHQ Order No. 955 of 2003 dated 6 March 2003, which allegedly cancelled the earlier approval of his appointment.

The applicant’s two elder brothers, stated to be the family’s earning members, were killed in militancy-related incidents in 1997 and 2000, after which he sought appointment under SRO-43 of 1994.

His name was included at Serial No. 32 in PHQ Order No. 1974 of 2001 dated 6 June 2001, approving compassionate appointment as a Constable in the J&K Auxiliary Police, subject to medical fitness and CID verification.

The respondents asserted that, due to non-availability of vacancies, the applicant’s appointment was subsequently approved in the J&K Armed Police by PHQ Order No. 2696 of 2001 dated 2 August 2001, but that he failed to report for duty.

His approval was consequently cancelled by PHQ Order No. 955 of 2003.

In earlier SWP No. 1807/2009, however, the respondents relied principally on the absence of vacancies and did not disclose the alleged cancellation order.

The High Court directed the respondents on 20 May 2011 to adjust/post the applicant if the appointment order remained in force.

Instead, the respondents rejected his claim by Order No. 2561 of 2011, relying upon the 2003 cancellation order for the first time.

The applicant maintained that neither the modified appointment order nor the cancellation order had been communicated to him and that he had continuously pursued his claim through representations and litigation.

1. Whether the respondents could rely upon PHQ Order No. 955 of 2003 dated 6 March 2003 while reconsidering the applicant’s claim pursuant to the High Court’s judgment dated 20 May 2011.

2. Whether PHQ Order No. 955 of 2003 was communicated to the applicant so as to operate adversely against his claim.

3. Whether the respondents could rely upon a ground that was available to them but was neither disclosed nor urged in the earlier proceedings in SWP No. 1807/2009.

4. Whether Order No. 2561 of 2011 dated 5 August 2011, rejecting compassionate appointment on the basis of the alleged cancellation, was legally sustainable.

5. Whether, having regard to the passage of time, the applicant was entitled to reconsideration for appointment or monetary compensation under the applicable compassionate-appointment scheme.

The Tribunal applied the compassionate-appointment framework under SRO-43 of 1994 and recognised that compassionate appointment is an exception to the general rule of public recruitment, intended to prevent the family of a deceased employee or a civilian killed in militancy-related activities from falling into destitution.

It applied the administrative-law principle that an order producing adverse civil consequences must be communicated to the affected person before it can be relied upon to defeat an accrued right or establish default.

The Tribunal further relied on the doctrines of waiver and acquiescence, holding that a party which had a full opportunity to raise a material ground in earlier litigation could not subsequently improve its defence by introducing that ground in later proceedings.

It also applied the settled principle that the validity of an administrative order must be assessed on the reasons contained in the order itself and cannot be supplemented subsequently through affidavits or arguments.

The Tribunal referred to Malaya Nanda Sethy v. State of Orissa, Civil Appeal No. 4103 of 2022, concerning prompt consideration of compassionate-appointment claims under the applicable policy, and Zahoor Ahmed Khan v. State of J&K, SWP No. 775/2018, concerning the lawful and limited purpose of compassionate appointment.

It additionally directed examination of SRO-199 of 2008, Government Order No. 893-GAD of 2008, and any other applicable scheme concerning monetary compensation in lieu of appointment.

The Tribunal found that the applicant had admittedly been approved for compassionate appointment in 2001 but had never been permitted to join.

Although the respondents relied on the 2003 cancellation order, they had not disclosed it while contesting the earlier writ petition, despite having a full opportunity to plead all available grounds.

Their subsequent reliance on that order therefore amounted to an impermissible improvement of their defence and attracted the principles of waiver and acquiescence.

Further, the respondents produced no material proving that the cancellation order or the modified appointment order had been served on or otherwise communicated to the applicant.

In the absence of communication, the applicant’s alleged failure to report for duty could not automatically be treated as a deliberate default, nor could the cancellation order be used to defeat his claim.

Since Order No. 2561 of 2011 substantially rested on the legally unestablished and previously undisclosed cancellation order, its foundation was unsustainable.

Nevertheless, the Tribunal held that quashing the rejection orders did not create an unconditional right to appointment; the respondents had to reconsider eligibility in light of the applicable rules, the applicant’s present age, physical and medical requirements, and the practical feasibility of appointment, while also examining alternative monetary compensation.

PHQ Order No. 955 of 2003 dated 6 March 2003 and Order No. 2561 of 2011 dated 5 August 2011, insofar as they concerned the applicant, were quashed and set aside.

The respondents were directed to reconsider the applicant’s claim under SRO-43 of 1994 and the applicable policy, with reference to the earlier approval and its modification, while assessing whether present appointment was legally and practically possible.

If appointment was not feasible, the respondents were directed to examine the applicant’s entitlement to monetary compensation under SRO-199 of 2008, Government Order No. 893-GAD of 2008, or any other applicable scheme.

A reasoned and speaking order was to be passed within eight weeks of receipt of the certified order and communicated to the applicant within fifteen days thereafter.

No order as to costs was made.