Himachal Pradesh High Court
Sh. Pratap Singh vs State Of H.P. & Anr. Decided On 22.03.2 on 20 June, 2022
Author: Jyotsna Rewal Dua
Bench: Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 20th DAY OF JUNE 2022
BEFORE
.
HON'BLE MS. JUSTICE JYOTSNA REWAL DUA
CIVIL WRIT PETITION(ORIGINAL APPLICATION) No. 1895 OF 2019
Between:-
SH. PRATAP SINGH
S/O SH. RAM RAKHA,
R/O VILLAGE KALARI,
POST OFFICE NAKRANA,
TEHSIL SHRI NAINA DEVI JEE,
DISTRICT BILASPUR, H.P.
.....PETITIONER
(BY SH. M.L. SHARMA, ADVOCATE)
AND
1. STATE OF HIMACHAL PRADESH
THROUGH SECRETARY HIMACHAL PRADESH PUBLIC
WORKS DEPARTMENT, TO THE GOVERNMENT OF
HIMACHAL PRADESH, SHIMLA-2.
2. CHIEF ENGINEER (H.Z.)
HIMACHAL PRADESH PUBLIC WORKS DEPARTMENT,
HAMIRPUR.
3. SUPERINTENDING ENGINEER,
10th CIRCLE, HIMACHAL PRADESH WORKS
DEPARTMENT, BILASPUR, H.P.
.....RESPONDENTS
(SH. DESH RAJ THAKUR, ADDITIONAL ADVOCATE
GENERAL)
Whether approved for reporting? Yes.
__________________________________________________
This petition coming on for orders this day, the
Court passed the following:
::: Downloaded on - 20/06/2022 20:02:55 :::CIS
2
ORDER
CMP(T) No.516/2022 .
For the reasons stated in the application, the same is allowed and disposed of.
CWPOA No.1895/2019With the consent of the parties, the matter is taken up for hearing.
2. Petitioner was appointed and working as Chowkidar on compassionate ground. The grievance of the petitioner in the instant petition is that in view of educational qualification possessed by him, he should have been appointed as a Clerk instead of Chowkidar on compassionate ground.
3. Following are the admitted facts of the case:-
3(a). Sh. Ram Rakha father of the petitioner was working as Beldar with the respondents-Public Works Department. He died on 14.08.2001 3(b). On 12.10.2001, the petitioner applied for compassionate appointment. At that time, his educational qualification was middle pass. During consideration of his ::: Downloaded on - 20/06/2022 20:02:55 :::CIS 3 application for being appointed on compassionate ground, he passed matriculation in third division.
.
3(c). Respondents on 06.07.2006 offered appointment on compassionate ground to the petitioner against the post of Chowkidar in Bilaspur Division-II, HPPWD Bilaspur. The offer was accepted by the petitioner. Office order engaging the petitioner as daily waged Chowkidar was passed on 13.07.2006. Petitioner continued to work as Chowkidar.
3(d). On 31.10.2012, the petitioner requested the respondents for change of his designation from Chowkidar to that of Clerk on the ground that he had qualified matriculation examination before the issuance of the appointment order. The request of the petitioner was turned down by respondent No.2-Chief Engineer (HZ), HPPWD Hamirpur on 21.11.2012, hence, the instant petition.
4. In support of change of designation prayed for by the petitioner, learned counsel for the petitioner has placed reliance on a judgment passed by the Division Bench of this Court in CWP No.1254/2011, titled Bal ::: Downloaded on - 20/06/2022 20:02:55 :::CIS 4 Krishan Vs. State of H.P. & Anr. Decided on 22.03.2011.
Learned counsel submitted that in the said judgment .
direction was issued to the respondent to look into the case of Sh. Bal Krishan (petitioner therein). That case of Bal Krishan was situated similar to the present petitioner.
Respondent considered the case of Bal Krishan (supra) and changed his designation from Chowkidar to that of Clerk. Learned counsel also drew attention to an order passed by the respondents on 15.10.2011. It was argued that in terms of this order one Sh. Sodhi Ram situated similarly as the present petitioner and appointed on compassionate ground against the post of Beldar, was ordered to be appointed as clerk.
Learned Additional Advocate General opposed the change of designation now sought by the petitioner. It was submitted that the Recruitment and Promotion Rules for the post of clerk required the incumbent to possess the educational qualification of either Matric in 2 nd Division or 10+2. The petitioner was not eligible for appointment as a clerk as he did not satisfy the basic minimum required educational qualification. He was neither a matriculate in ::: Downloaded on - 20/06/2022 20:02:55 :::CIS 5 second division nor had he passed 10+2. Therefore, he could not be appointed on compassionate ground as a .
clerk and was accordingly offered the compassionate appointment as a daily waged Chowkidar.
5. On hearing learned counsel for the parties and going through the case record, I am of the considered view that for the following reasons the relief claimed by the petitioner cannot be granted:-
5(i). It is not in dispute that under the Recruitment & Promotion Rules for the post of clerk, an applicant in order to become eligible must possess educational qualification either of matriculation with 2nd division or he must have passed 10+2. It is an admitted position that the petitioner at the relevant time was a matriculate with third division. He did not possess the educational qualification required for appointment against the post of clerk in terms of Recruitment and Promotion Rules for the post of clerk.
5(ii). Since the petitioner was only matriculate with third division, therefore, respondents offered him compassionate appointment against the post of Chowkidar in July 2006. The petitioner accepted the offer ::: Downloaded on - 20/06/2022 20:02:55 :::CIS 6 and submitted his joining report. Six years later, he preferred a representation to the respondents for changing .
his designation from Chowkidar to that of Clerk. Having accepted compassionate appointment to the Class-IV post of Chowkidar, it was not open for the petitioner to seek appointment on compassionate ground to the Class-III post of clerk.
In 2022(1) SCC 30 titled State of Uttar Pradesh and others Vs Premlata, 'Dying-In-Harness Rules 1974' on compassionate ground appointment in State of Uttar Pradesh were under consideration. Rule 5 of these rules provided for appointment on compassionate grounds on 'suitable post'. Hon'ble Apex Court considered various precedents in time line relating to appointment on compassionate ground. It was reiterated that appointment on compassionate ground offered to a dependent of a deceased employee is an exception to norms of providing equal opportunity to all aspirants in Government vacancies mandated under Articles 14 & 16 of the Constitution. The compassionate ground is a concession and not a right. The interpretation given by the High Court ::: Downloaded on - 20/06/2022 20:02:55 :::CIS 7 that 'suitable post' would mean any post suitable to the qualification of the candidate irrespective of the post held .
by the deceased employee, was held to be defeating the object and purpose of appointment on compassionate ground. Compassionate appointment to higher post than held by deceased employee cannot be granted as matter of right on ground that dependent is eligible for such higher post. Following was held by the Hon'ble Apex Court:-
"10.2 The Division Bench of the High Court in the present case has interpreted Rule 5 of Rules 1974 and has held that 'suitable post' under Rule 5 of the Rules 1974 would mean any post suitable to the qualification of the candidate irrespective of the post held by the deceased employee. The aforesaid interpretation by the Division Bench of the High Court is just opposite to the object and purpose of granting the appointment on compassionate ground. 'Suitable post' has to be considered, considering status/post held by the deceased employee and the educational qualification/eligibility criteria is required to be considered, considering the post held by the deceased employee and the suitability of the post is required to be considered vis a vis the post held by the deceased employee, otherwise there shall be no difference/distinction between the appointment on compassionate ground and the regular appointment. In a given case it may happen that the dependent of the ::: Downloaded on - 20/06/2022 20:02:55 :::CIS 8 deceased employee who has applied for appointment on compassionate ground is having the educational qualification of ClassII or ClassI post and the deceased .
employee was working on the post of Class/Grade IV and/or lower than the post applied, in that case the dependent/applicant cannot seek the appointment on compassionate ground on the higher post than what was held by the deceased employee as a matter of right, on the ground that he/she is eligible fulfilling the eligibility criteria of such higher post. The aforesaid shall be contrary to the object and purpose of grant of appointment on compassionate ground which as observed hereinabove is to enable the family to tide over the sudden crisis on the death of the bread earner. As observed above, appointment on compassionate ground is provided out of pure humanitarian consideration taking into consideration the fact that some source of livelihood is provided and family would be able to make both ends meet.
10.3 In the present case as observed hereinabove initially the respondent applied for appointment on compassionate ground on the post of Assistant Operator in Police Radio Department. The same was not accepted by the Department and rightly not accepted on the ground that she was not fulfilling requisite eligibility criteria for the post of Assistant Operator. Thereafter the respondent again applied for appointment on the compassionate ground on the post of Workshop Hand. The case of the respondent was considered, however, she failed in the physical test examination, which was required as per the relevant recruitment rules of 2005. Therefore, thereafter she was offered appointment on compassionate ground as ::: Downloaded on - 20/06/2022 20:02:55 :::CIS 9 Messenger which was equivalent to the post held by the deceased employee. Therefore appellants were justified in offering the appointment to the respondent .
on the post of Messenger. However, the respondent refused the appointment on such post.
11. In view of the above and for the reasons stated above, the Division Bench of the High Court has misinterpreted and misconstrued Rule 5 of the Rules 1974 and in observing and holding that the 'suitable post' under Rule 5 of the DyingIn Harness Rules 1974 would mean any post suitable to the qualification of the candidate and the appointment on compassionate ground is to be offered considering the educational qualification of the dependent. As observed hereinabove such an interpretation would defeat the object and purpose of appointment on compassionate ground."
5(iii). Reliance upon two cases of Sh. Bal Krishan and Sh. Sodhi Ram alleged to be similarly situated as the present petitioner, in whose cases, respondents had statedly changed the initial designation from Class-IV to Class-III, is also misplaced. Educational qualifications of these two persons are not before this Court. The circumstances in which, Class-IV designation of the aforesaid two persons was statedly changed to Class-III are not before this Court. The petitioner is before the Court of law. Relief prayed for by him cannot be granted ::: Downloaded on - 20/06/2022 20:02:55 :::CIS 10 on the ground of negative parity. When the petitioner admittedly did not fulfill the qualification criteria required .
for appointment to the post of clerk in accordance with R&P Rules framed for the said post then the respondents cannot be directed to change his designation from the post of Chowkidar to that of Clerk. Learned counsel for the petitioner also pressed for a direction to the respondents to relax the Recruitment & Promotion Rules for facilitating appointment of petitioner as clerk. Even this submission is misplaced as relaxation in respect of satisfying laid out educational criteria towards eligibility for a post under the Recruitment & Promotion Rules cannot be claimed as a matter of right.
No other point was urged.
For the foregoing reasons, this petition lacks merit and is dismissed accordingly. Pending miscellaneous applications, if any, shall also stand disposed of.
Jyotsna Rewal Dua Judge 20th June 2022 (rohit) ::: Downloaded on - 20/06/2022 20:02:55 :::CIS