Pending compassionate appointment claims are governed by amended rules requiring legally recognized adoption.

The applicant claimed to have been adopted during infancy by Kaloo Banday, a Muslim Government employee serving as a Helper in the Public Health Engineering Department, who died in harness on 15 February 2004.

The applicant asserted that he was the deceased employee’s only surviving dependent and sought compassionate appointment under SRO-43 of 1994.

His claim was supported by a dependency certificate, succession certificate, mutation entry and an unregistered Will describing him as the deceased’s adopted son.

The applicant initially filed SWP No. 897/2010 before the Jammu and Kashmir High Court.

After SRO-177 dated 20 June 2014 amended the definition of “Family Member” under SRO-43 by recognizing an adopted son or daughter only where adoption was permissible under the applicable law, the earlier writ petition was withdrawn with liberty to challenge the amendment and consequential developments.

The present proceedings arose from the transferred writ petition.

The applicant challenged SRO-177 as unconstitutional and retrospective, contending that his right to consideration arose when the deceased died in 2004, when the unamended SRO-43 expressly included an adopted son.

He also challenged the Accountant General’s refusal to accept the adoption-related documents for pensionary benefits.

The respondents contended that compassionate appointment was governed by the applicable scheme, that adoption creating filial status was not recognized under Muslim Personal Law, and that SRO-177 expressly applied to pending claims.

Whether SRO-177 dated 20 June 2014, insofar as it amended Rule 2(d) of SRO-43 of 1994 to recognize adopted children only where adoption is permissible under the applicable law, was arbitrary, discriminatory or unconstitutional?

Whether the amended provision under SRO-177 applied to the applicant’s pending claim for compassionate appointment, despite the deceased employee having died in 2004 and the application having been made under the unamended rules?

Whether the communication rejecting or not accepting the applicant’s claim for pensionary benefits was liable to be set aside?

Compassionate appointment is an exception to the general rule of public recruitment and can be granted only in accordance with the governing scheme; it is not a hereditary or vested right arising automatically upon the death of an employee.

The Tribunal applied SRO-43 of 1994, as amended by SRO-177 dated 20 June 2014, particularly the amended definition of “Family Member” and its Explanation making the amendment applicable to pending cases where the application was filed within one year of death.

It also relied on the Jammu and Kashmir Muslim Personal Law (Shariat) Application Act, 2007, as reflecting the applicable legal position concerning adoption within the Muslim community.

The Tribunal held that general definitions under the Jammu and Kashmir Civil Service Regulations could not enlarge the specific eligibility requirements under SRO-43.

It relied on State Bank of India v. Raj Kumar, (2010) 11 SCC 661, and Canara Bank v. Mahesh Kumar, (2015) 7 SCC 412, for the principle that compassionate appointment cannot be claimed dehors the governing scheme.

It also followed Mohammad Rafiq Wagay v. State of J&K & Ors., SWP No. 1673/2018, and distinguished Ubaid Latif Dar v. Director, Civil Secretariat, J&K & Ors., T.A. No. 8596/2020, because appointment had already been granted in the latter case before the amendment.

Pensionary entitlement was held to be governed independently by the applicable pension rules.

The Tribunal accepted that the applicant had been treated as the deceased’s adopted son and dependent in various administrative and property-related records, but held that such documents did not by themselves establish a legally recognized adoption for purposes of the amended compassionate appointment scheme.

Since the applicant belonged to the Muslim community and did not establish adoption under a statutory mechanism, applicable personal law or a legally binding custom, he did not satisfy the amended requirement of being a “Family Member”.

The Tribunal further held that the applicant had no indefeasible right to appointment merely because the employee died in 2004 or because the application was submitted within time.

His claim was only a right to consideration under the scheme.

Since SRO-177 expressly provided that pending cases were to be decided under the amended provision, its application did not amount to impermissible retrospective operation.

The classification based on whether adoption was legally recognized was found to rest on an intelligible differentia having a rational nexus with certainty and uniformity in administering an exceptional recruitment scheme; it was therefore not discriminatory under Article 14.

However, the Tribunal treated the pensionary claim separately.

It held that rejection of compassionate appointment did not conclusively determine entitlement to family pension or other service benefits, which had to be examined independently under the applicable pension rules and on the basis of the applicant’s documents.

It rejected the applicant’s claim for compassionate appointment, holding that, as a Muslim claimant who had not established a legally recognized adoption, he did not fall within the amended definition of “Family Member” under SRO-43 of 1994.

The challenge relating to pensionary benefits was not finally rejected.

The competent authority was directed to reconsider the applicant’s claim independently under the applicable pension rules, examine the supporting material, and pass a speaking and reasoned order within eight weeks from receipt of the order.

The Transfer Application was accordingly disposed of, with no order as to costs.