Himachal Pradesh High Court
Tehsil Nahan vs State Of H.P on 29 December, 2022
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
.
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
ON THE 29th DAY OF DECEMBER, 2021
BEFORE
HON'BLE MR. JUSTICE AJAY MOHAN GOEL
CIVIL WRIT PETITION (ORIGINAL APPLICATION)
No.5159 of 2020
Between:
SH.SUNIL KUMAR S/O LATE
RANBIR SINGH, R/O VILLAGE
NEHAR, P.O.
r CHALANA
TEHSIL NAHAN, DISTT.
SIRMOUR, H.P.
....PETITIONER.
(BY. MR. V.D.KHIDTTA, ADVOCATE )
AND
1. STATE OF HIMACHAL
PRADESH THROUGH ITS
SECRETARY (IPH) TO THE
GOVT. OF H.P. SHIMLA02.
2. THE ENGINEERINCHIEF,
I & PH DEPARTMENT U.S.
CLUB SHIMLA1.
3. THE EXECUTIVE
ENGINEER, I & PH DIVISION
NAHAN, DISTT. SIRMOUR,
H.P.
....RESPONDENTS.
(BY. MR. ASHOK SHARMA, ADVOCATE GENERAL, WITH MR.
ADARSH SHARMA, MR. SUMESH RAJ AND MR. SANJEEV
SOOD, ADDITIONAL ADVOCATES GENERAL.)
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2
.
Whether approved for reporting?1 Yes
This petition coming on for hearing this day, the Court passed the following:
ORDER
By way of this petition, the petitioner has prayed for the following reliefs: "(i) That the impugned order dated 30.08.2017 and 26.08.2017 Annexure A10 (Colly) may kindly be quashed and set aside.
(ii) That the respondents may kindly be directed to consider the case of the applicant for employment as beldar on the basis of the policy/office memorandum dated 4th April 2008 (Annexure A11) and be made covered as per the decision of this Hon'ble Tribunal dated 22.11.2017 passed in OA No.7158/2016 titled Harsh Sharma Vs. State of H.P.
(iii) That the respondents may kindly be directed to consider the candidature of the applicant for appointment as beldar on compassionate ground from the date his juniors have been considered i.e. from the year 2010 with all consequential benefits.
(iv) That the respondent may kindly be directed to produce the entire record pertaining to the case of the applicant."
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2. Brief facts necessary for the adjudication of this petition are that the father of the petitioner, who was serving as a beldar with the respondentdepartment, died in harness on 10.12.2009.
The petitioner thereafter applied to the respondentdepartment in the month of March, 2010 vide Annexure A2, for appointment on compassionate basis. This application of the petitioner stands rejected by the respondentdepartment vide Annexure A10, i.e. communication dated 30.08.2017, inter alia, on the ground that the family of the deceased employee does not appears to be indigent and as such cannot claim compassionate appointment.
3. Feeling aggrieved with the rejection, the petitioner has filed the present petition.
4. I have heard learned counsel for the parties and have gone through the pleadings including the Writ Petition and the reply filed thereto.
5. The grievance of the petitioner is that despite the fact that he applied for appointment on compassionate basis in the year 2010, yet his case has been rejected by the respondentdepartment by applying the policy in vogue with regard to compassionate appointments at the time of consideration of his case rather than considering it by applying the policy which was in vogue at the time ::: Downloaded on - 29/12/2022 20:49:35 :::CIS 4 .
when he had applied for such appointment. His further contention is that rejection of his claim is by way of a nonspeaking order as no reasoning stands assigned therein as to why a family of deceased beldar who happens to be a ClassIV employee, as per the respondentdepartment, does not fall within the definition of an indigent family. It is further the contention of the petitioner that similarly situated persons have been granted appointment on compassionate basis whereas the petitioner has been discriminated arbitrarily by the respondentdepartment.
6. The stand of the respondentdepartment as is evident from the reply, specially the preliminary submissions thereof is to the effect that the assignment of the eligibility for compassionate appointment lies with the employer and if the eligibility criteria is altered by the employer, then none has a right to challenge the same. It is further the stand of the respondentdepartment that vide letter dated 21.12.2012, issued by the Finance Department, to the Government of Himachal Pradesh, now there was a mandate that clear cases wherein appointment on compassionate basis has been sought, the same has to be examined in the light of the benefits received by the family of the deceased on account of family pension, ex facie grant, death gratuity, Employee Group Insurance Scheme, ::: Downloaded on - 29/12/2022 20:49:35 :::CIS 5 .
Leave Encashment etc. As per the respondentdepartment, after applying this criteria, it was found that as the family of the deceased was not an indigent family, therefore, the case of the petitioner was rejected, which rejection as per the respondentdepartment is strictly in terms of the policy of the government.
7. Learned Additional Advocate General during the course of arguments has also drawn the attention of this Court to the stand of the State which is to the effect that in terms of communication dated 15.07.2010, whereby after the death of an employee, a widow is entitled for employment on compassionate basis and their wards are entitled for employment only in the case of death of both the parents.
8. This Court is of the considered view that though the appointment on compassionate basis is not the normal channel of employment and is an exception to the normal channel of employment, yet the assessment of a candidate as to whether he or she is eligible for being considered for appointment on compassionate basis, cannot be done arbitrarily by the department concerned. This Court is using the term 'arbitrarily' with the purpose that date of death of predecessorininterest of the applicant as also the date when the applicant applies for the post in issue, has ::: Downloaded on - 29/12/2022 20:49:35 :::CIS 6 .
relevance and needs to be taken into consideration by the department at the time when the case of such an applicant is considered and subsequent policy, if any, framed by the department concerned, cannot act to the detriment of such an applicant. In other words, it is the policy which is in vogue at the time when the predecessorininterest of the applicant dies or the policy which is in vogue at the time when he applies for the post, provided there is some variance in them, which has to be taken into consideration by the department at the time of consideration of the case of such a person and not any subsequent policy which may be framed has to be considered. This Court is making this observation in the light of the judgment passed by the Hon'ble Supreme Court of India, in Seema Kausar Versus the State of Maharashtra & Ors, SLP No.19252/2018, in which Hon'ble Supreme Court has been pleased to observe that it is a policy which was prevailing at the time when the deceased employee died/the application was made, which only is required to be considered.
9. In view of the observations made hereinabove, this petition is allowed. Impugned order dated 26.08.2017 and 30.08.2017 Annexure A10 (Colly) is quashed and set aside, with the direction to the respondentdepartment to take a decision afresh on ::: Downloaded on - 29/12/2022 20:49:35 :::CIS 7 .
the application of the petitioner for grant of compassionate appointment on the basis of the policy which was in vogue at the time of death of the deceased employee/submission of application.
The needful be done within a period of three months from today.
10. The petition is disposed of accordingly, so also pending December 29, 2021 miscellaneous applications, if any.
(Ajay Mohan Goel)
(rishi) Judge
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