Himachal Pradesh High Court
Smt. Reena Devi vs State Of Himachal Pradesh And Others on 28 June, 2023
Bench: Mamidanna Satya Ratna Sri Ramachandra Rao, Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 5171 of 2022 Reserved on : 14.06.2023 .
Decided on : 28.06.2023
Smt. Reena Devi ....Petitioner.
Versus
State of Himachal Pradesh and others ...Respondents.
Coram
The Hon'ble Mr.Justice M.S. Ramachandra Rao, Chief Justice. The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting?1 For the petitioner r : Mr. C.N. Singh, Advocate.
For the respondents : Mr. Anup Rattan, Advocate General with M/s Navlesh Verma, Pranay Pratap Singh, Additional Advocate Generals and Mr. Arsh Rattan, Deputy Advocate General.
Ajay Mohan Goel, Judge By way of this writ petition, the petitioner has inter alia prayed for the following substantive reliefs:-
"i) Issue a writ of Certiorari, Mandamus or other appropriate writ or direction quashing the Order dated 23.06.2022 (Annexure P-18) for all intents and purposes.
ii) Issue a writ of Certiorari, Mandamus or other appropriate writ or direction directing the Respondents to consider the case of the Petitioner 1 Whether reporters of the local papers may be allowed to see the judgment? ::: Downloaded on - 28/06/2023 20:33:17 :::CIS 2
for compassionate appointment in terms of the Memorandum dated 18.05.2022 (Annexure P-17).
iii) Issue a writ of Mandamus or other appropriate .
writ or direction to the Respondents to consider the case of the Petitioner for compassionate employment as per her eligibility, educational qualification within a time bound manner.
iv) In alternative in the facts of the case, Issue a writ of Certiorari, Mandamus or other appropriate writ or direction directing the Respondents to consider the case of the Petitioner for compassionate appointment by invoking Clause (V) of Government of Himachal Pradesh Order No. Per(AP-B)F(4)1/99 dated 23April2016 (Annexure P-4)."
2. Case of the petitioner is that her father was serving in Assam Rifles and he died in harness on 17.06.1998, while serving as a Havildar (General Duty). He was the sole earning member of the family, which consisted of mother of the petitioner and a sister. The petitioner as well as her sister were minor at the time of the death of their father. After they attained the age of majority, their mother submitted an application to the employer of her deceased- ::: Downloaded on - 28/06/2023 20:33:17 :::CIS 3 husband dt. 26.12.2019 (Annexure P-2), seeking compassionate appointment for the petitioner in the State of Himachal Pradesh. This was followed by communication .
dated 7th February, 2020 (Annexure P-3), in terms whereof the Director General, Assam Rifles, Shillong, made a request to respondent no. 1 to look into the matter and provide a government job to the petitioner in the State of Himachal Pradesh as per existing rules as a welfare measure to the family of the deceased-soldier. Thereafter, Joint Secretary (Personnel) to the Government of Himachal Pradesh, vide communication dated 29th October, 2020 (Annexure P-5), wrote to respondent no. 2 to process and examine the case of the petitioner in the light of instructions issued by the Department of Personnel vide letters dt. 23.04.2016 and 04.07.2018. Vide Annexure P-8, dt. 25.11.2020, respondent no. 2 wrote to Sub Divisional Officer, Sarkaghat, District Mandi, to look into the matter as per rules in terms of the educational qualifications of the petitioner. This was followed by issuance of communication dated 04.12.2020 (Annexure P-9), in terms whereof the office of Sub Divisional Officer (Civil), Sarkaghat, District Mandi, directed the Tehsildar concerned to look into the matter and send the requisite documents alongwith a detailed report as well as ::: Downloaded on - 28/06/2023 20:33:17 :::CIS 4 recommendations. According to the petitioner, the Patwari gave his report in terms of Annexure P-10, dt. 10.12.2020 and thereafter, in terms of communication dt. 30.01.2021 .
(Annexure P-11), respondent no. 3 informed respondent no. 1 that as per the notifications issued by the Department of Personnel dt. 23.04.2016 and 04.07.2018, there was a provision for providing compassionate appointment to the legal heirs of the martyr personnel of Para Military Forces but the daughter of the applicant, who was seeking appointment of compassionate grounds, was married and, in terms of the policy, she was not eligible for compassionate appointment. Thereafter, petitioner made a representation to respondent no. 1, dt. 15.02.2021, by placing reliance upon the judgment of this Court dt. 28.10.2020, passed in CWP No. 31 of 2020, titled as Mamta Devi vs. State of H.P. and others, in which, a married daughter was held entitled for compassionate appointment. In terms of Annexure P-13, dt. 26.02.2021, the request of the petitioner was again referred by respondent no. 3 to respondent No. 1, by making a mention therein of the earlier communication sent by it to respondent no. 1, dt. 30.01.2021. However, as even thereafter, the case of the petitioner was not being favourably considered, she filed CWP No. 5743 of 2021, titled as Reena Devi vs. State of H.P. and ::: Downloaded on - 28/06/2023 20:33:17 :::CIS 5 others before this Court which was disposed of by this Court in terms of order dt. 30.03.2022 (Annexure P-15), by issuing a direction to the respondents to dispose of the representation .
filed by the petitioner in terms of the decision of this Court in CWP No. 4521 of 2021, titled as Sapna Kumari vs. State of H.P. through Secretary (Animal Husbandry), 2021 SCC OnLine HP 9000. This was followed by issuance of order dt. 23.06.2022 (Annexure P-18), vide which respondent no. 2 rejected the claim of the petitioner for grant of compassionate appointment by holding that the petitioner was not covered by the policy as the same was prospective.
3. Learned Counsel for the petitioner argued that the impugned order passed by respondent no. 2 was not sustainable in the eyes of law as while passing the impugned order, respondent no. 2 erred in not appreciating that there was no express bar in the instructions relied upon by respondent no. 2 that the cases of those dependents of martyr of Para Military Forces who had died before the issuance of the policy could not be considered for compassionate appointment. He further argued that otherwise also as rationale behind the policy for compassionate appointment is to help the bereaved families, therefore, but natural, it has to be construed that it intended to cover all those who would fall ::: Downloaded on - 28/06/2023 20:33:17 :::CIS 6 with the ambit of the instructions de hors the date of death of the predecessor-in-interest. Learned Counsel also argued that the denial of compassionate appointment to the petitioner .
was otherwise also bad in law as this frustrates the very purpose of issuance of instructions dt. 23.04.2016 and 04.07.2018. He argued that in view of the fact that the legal heirs of the deceased-personnel of Para Military Forces were eligible for compassionate appointment and as father of the petitioner was a Para Military Force personnel, therefore, the denial of compassionate appointment after his death to the petitioner could not be justified in law. Accordingly, he prayed that the petition be allowed by quashing impugned Annexures and by issuing a direction to the respondents to grant appointment to the petitioner on compassionate basis as per her qualification.
4. The petition is resisted by the respondents who in the reply took the stand that request for providing employment on compassionate basis to the petitioner was received in the office of respondent no. 2 through respondent no. 1 vide letter dt. 29.10.2020, to process and examine the case in the light of instructions issued by the Department of Personnel vide letters dt. 23.04.2016 and 04.07.2018. Respondent no. 2 forwarded the application to Sub Divisional ::: Downloaded on - 28/06/2023 20:33:17 :::CIS 7 Officer (Civil), Sarkaghat, District Mandi, for enquiry and report. The report was submitted to respondent no. 2, who thereafter forwarded the same to the Joint Secretary .
(Personnel) to the Government of Himachal Pradesh by endorsing a copy thereof to the mother of the petitioner. Thereafter, the mother of the petitioner again submitted an application dt.15.02.2021 with respondent no. 2, which was again sent to Joint Secretary (Personnel) to the Government of Himachal Pradesh in terms of Annexure P-13 appended with the petition. The High Court had passed judgment dated 30.03.2022 in CWP No. 5748/2021, titled as Reena Devi vs. State of H.P. and others, with the direction to the respondents to dispose of the representation of the petitioner in terms of the decision given by the High Court in CWP No. 4521 of 2021, titled as Sapna Kumari vs. State of H.P. and others and CWP No. 3100 of 2020, titled as Mamta Devi vs. State of H.P. and others. The petitioner was thereafter called for personal hearing on 23.06.2022 and after hearing her and after examining the policy issued by the Department of Personnel in terms of letters dt. 23.04.2016 and 04.07.2018, order dated 23.06.2022 was passed in compliance to the directions issued by the Court.
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5. Learned Advocate General argued that the death of the father of the petitioner took place in the year 1998 and at the relevant time, there was no policy for grant of .
compassionate appointment to the dependents of martyr soldiers of Para Military Forces. He argued that instructions dt. 23.04.2016 and 04.07.2018 were unambiguous and in fact instructions dt. 04.07.2018 were brought into force prospectively from the date of its issuance with immediate effect. Besides this, in terms of instructions dt. 23.04.2016, the request for grant of employment assistance is to be made by the dependents of the martyr soldier to the concerned Deputy Commissioner within a period of one year of death and in case there was no son/daughter major as on the day, then time limit envisaged was attainment of the age of 18 years by the eldest son/unmarried daughter. In the present case, death of the predecessor-in-interest of the petitioner took place before one year as from the date of issuance of notification dt. 04.07.2018, therefore, the petitioner was not covered by the policy. He argued that as order passed by the Deputy Commissioner was in consonance with instructions dt. 23.04.2016 and 04.07.2018, therefore, as there was no perversity in the same, the present petition being devoid of merit be dismissed.
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6. We have heard learned Counsel for the parties and also carefully gone through the pleadings as well as documents appended therewith.
.
7. In terms of impugned Notification dt. 23.06.2022 (Annexure P-18), the case of the petitioner for grant of appointment of compassionate basis has been rejected by respondent no.2 by holding that her case was not covered under the policy instructions dt. 23.04.2016 and 04.07.2018 as the father of the petitioner had passed away on 17.06.1998 before the issuance of Notification/instructions dt. 04.07.2018. Said authority also observed that in terms of Clause-IV of the policy guidelines dt. 23.04.2016, the request for grant of employment assistance was to be made by the dependents of the martyr soldier to the concerned Deputy Commissioner within one year of the death, which implies that the policy has no retrospective effect.
8. The father of the petitioner, who was serving in Assam Rifles as a Havildar, died on 17.06.1998, as is borne out from the record while on active duty. The request was received by the respondents for considering the case of the petitioner for compassionate appointment in the year 2020. In terms of the affidavit which has been filed by the petitioner in support of the writ petition, which was verified on ::: Downloaded on - 28/06/2023 20:33:17 :::CIS 10 04.07.2022, the age of the petitioner at the time of filing of the petition was 36 years. This means that she attained the age of majority in the year 2004. It is not the case of the .
petitioner that before issuance of notification dt. 04.07.2018, on the subject "Providing of employment assistance to the eligible dependents of martyrs soldiers of para-military forces"
[appended with the petition as Annexure P-4 (colly.)], there were any instructions issued by the respondent-State in terms whereof the dependents of martyr soldiers of Para Military Forces were eligible for compassionate appointment. This means that this right stood conferred upon eligible dependents only by virtue of instructions dt. 04.07.2018. Relevant portion of instructions dt. 04.07.2018 reads as under:-
"I am directed to say that the State Government after through consideration has decided to extend the benefit of providing employment to one eligible dependent of martyrs personnel of Para-Military Forces in relaxation of provision of direct recruitment prescribed in the R & P Rules prevailing in the State of respective category on the analogy and policy guidelines prescribed vide Department of Personnel letter ::: Downloaded on - 28/06/2023 20:33:17 :::CIS 11 No. Per (AP-B)F(d)1/99 dated 23rd April, 2016 for providing of employment assistance to the eligible dependents of martyr soldiers, with immediate .
effect, in the larger public interest."
9. Thus, a perusal of the same demonstrates that in terms of these instructions, it stood conveyed that the Government had decided to extend the benefit of providing employment to one eligible dependent of martyr personnels of Para Military Forces in relaxation of provisions of direct recruitment prescribed in the Recruitment and Promotion Rules on the analogy and policy guidelines prescribed vide letter dt. 23.04.2016 with immediate effect in the larger public interest. In the writ petition, there is no challenge to the cut-off-date mentioned in the said instructions. By way of communication dt. 4th July, 2018, as benefits in terms of instructions dt. 23.04.2016, were extended to the eligible dependents of martyr soldiers of Para Military Forces, therefore, it is relevant to refer to instructions dt. 23.04.2016 also. A perusal of instructions dt. 23.04.2016, demonstrates that the same inter alia provide that the request for grant of employment assistance has to be made by the dependent of the martyr soldier to the concerned Deputy Commissioner within a period of one year of death and in case, none of the ::: Downloaded on - 28/06/2023 20:33:17 :::CIS 12 son/ daughter of the deceased is major, then time limit in such event will be attainment of 18 years by the eldest son/unmarried daughter, as the case may be. A harmonious .
reading of instructions dt. 23.04.2016 and instructions dt. 04.07.2018, thus leads to the conclusion that an eligible candidate seeking compassionate appointment has to apply for the appointment within one year of the death of the predecessor-in-interest if such applicant is a major and if the applicant is not a major, then on the attainment of age of 18 years. In the present case, as the father of the petitioner died in the year 1998 and the policy extending the benefit on compassionate appointment to dependents of martyrs soldiers of Para Military Forces came into force on 4th July, 2018, but natural, this policy did not contemplate the grant of benefit to those dependents of the soldiers of Para Military Forces, wherein the soldier had died before one year as from the date of coming into force of the instructions. In fact, there seems to be a rationale as to why the government has decided to entertain only those applications which are preferred by the eligible dependents within one year as from the date of death of predecessor-in-interest and the same is to discourage and not to entertain the old and stale cases. Even otherwise, the purpose of granting appointment on ::: Downloaded on - 28/06/2023 20:33:17 :::CIS 13 compassionate basis is to provide immediate succor to the family which has lost its bread earner and as in the present case, the father of the petitioner had died in the year 1998, .
but obvious, her claim not being covered by instructions dt. 04.07.2018 read with instructions dt. 23.04.2016, was rightly rejected by the Deputy Commissioner. The findings that have been returned by respondent no. 2, in order dt. 23.06.2022, are based on the correct interpretation of the instructions in issue and the same cannot be said to be perverse.
10. Accordingly, in view of above observations, as the Court does not find any merit in the present petition, the same is dismissed. No order as to cost. Pending miscellaneous application(s), if any, also stand disposed of accordingly.
(M.S. Ramachandra Rao)
Chief Justice
(Ajay Mohan Goel)
June 28, 2023 Judge
(narender)
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