Waiver means the abandonment of right: CAT

Srinagar: The Central Administrative Tribunal (CAT) has held that “waiver” amounts to an abandonment of a right and the same is attested by “conduct”.

“Waiver means the abandonment of a right and it may be either express or implied from conduct but its basic requirement is that it must be an intentional act with knowledge,” a division bench of M S Latif and Member (J) and Prasant Kumar Member(A) said, while dismissing a plea. “Petitioner having accepted the post of Laboratory Bearer has waived his right by conduct.”

In his plea, Azhar Iqbal had submitted that his qualification being 10+2 and above, he was entitled to his appointment as a Laboratory Assistant and not as a Laboratory Bearer.

Petitioner’s father was working as Master in the Education department and he died in harness on November 13, 2018.

The petitioner applied for his appointment on compassionate grounds under SRO 43 and was appointed as “orderly” under an order dated February 24, 2020.

However, subsequently, the order was modified by a corrigendum on July 10, 2020, whereby, the designation of the petitioner was shown as “Laboratory Bearer”.

In his petition, the petitioner contended that he was entitled to his appointment as a Laboratory Assistant.

His further contention was that non-consideration of the representations filed by him before the authorities constrained him to approach the tribunal.

Disposing of his application, the tribunal vide its order dated October 27, 2022, directed the authorities to consider his representation and decide the same within four weeks by passing a reasoned and speaking order.

However, it was made clear that no opinion was expressed on the merits of the case.

In compliance with the tribunal’s order, the authorities considered the petitioner’s representation by passing an order on August 26, 2023, which was challenged before the Tribunal.

The petitioner submitted that the authorities did not consider his representation in the real spirit of Rule 3 of SRO 43 of 1994, saying, as such, they unreasonably failed to consider his claim for his appointment as Laboratory Assistant.

The petitioner said that the order by no stretch of the imagination could be construed as “speaking or reasoned” as “fair play is the soul of every action”.

“The minimum standard of fairness both substantive as well as procedural is required to be followed,” he said.

In response to this contention, Mubashir Majid Malik, DAG representing UT of J&K, said the petitioner could not claim appointment on compassionate grounds as a matter of right.

“It is not in dispute that the petitioner has accepted the post without any protest and, as such, has waived his right to approach the Court for seeking direction for his appointment as Laboratory Assistant,” the court said, after hearing the parties.

The court concluded that the petitioner having accepted the post of Laboratory Bearer waived his right by conduct and dismissed the petition as being devoid of merit.

The court appreciated the assistance granted by advocate Gulzar Ahmad Sopori on asking.