Himachal Pradesh High Court
Yudhvir Singh vs State Of H.P. & Ors on 27 December, 2022
Bench: Amjad Ahtesham Sayed, Jyotsna Rewal Dua
THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP No. 931/2021 .
Decided on: 27.12.2022
Yudhvir Singh ....Petitioner
Versus
State of H.P. & Ors. ....Respondents.
.......................................................................................... Coram The Hon'ble Mr. Justice A.A. Sayed, Chief Justice.
The Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge. Whether approved for reporting?1 ______________________________________________________ For the petitioner : Mr. Sameer Thakur, Advocate.
For the respondents: Mr. Anup Rattan, Advocate General with Ms. Ritta Goswami, Additional Advocate General.
Jyotsna Rewal Dua (J) In this third round of protracted litigation, the respondents have rejected the case of the petitioner for appointment on compassionate ground vide order dated 04.09.2020. Aggrieved, the petitioner has preferred the instant writ petition seeking quashing of impugned office order dated 4.9.2020 (Annexure P-13) and also for direction to the respondents to appoint him on compassionate ground against Class-III or Class-IV posts in the respondent-department as per the policy existing at the time of submission of his application dated 15.12.2003.
1Whether reporters of the local papers may be allowed to see the judgment? Yes.
::: Downloaded on - 29/12/2022 20:37:21 :::CIS 22. Facts:-
2(i) Shri Dharam Singh Verma father of the petitioner died .
on 29.10.2002 while working as Assistant Engineer (Electrical) in the respondent-department. He was survived by seven family members i.e. his wife, two sons including the petitioner and four unmarried daughters.
2(ii) On attaining the age of majority, the petitioner applied on the prescribed format for the grant of compassionate appointment as Clerk (Class-III) vide his application dated 15.12.2003 alongwith all requisite documents. The application was made as per then prevailing policy for compassionate appointment. Petitioner's case was recommended for appointment by the Executive Engineer and sent to the Superintending Engineer on 28.04.2004 for approval. The Superintending Engineer endorsed the view of Executive Engineer on 19.06.2004 and forwarded petitioner's case to the Engineer-in-Chief.
The Engineer-in-Chief also recommended the petitioner for appointment as Clerk on compassionate ground vide letter dated 28.06.2004.
2(iii) On 4.3.2006, respondent No.1 directed the petitioner to submit fresh income certificate on account of some discrepancies in the income certificate furnished by him alongwith his application form.
The fresh income certificate dated 30.03.2006 obtained by the petitioner was submitted to the respondents, wherein the income of ::: Downloaded on - 29/12/2022 20:37:21 :::CIS 3 family of the petitioner was certified to be below Rs.1,58,000/- per annum. In the interregnum, the petitioner acquired the additional .
qualification of Bachelor of Arts. After a period of nine years from the date of submission of application by the petitioner, the respondents on 24.8.2012 rejected his case for appointment on compassionate ground. The rejection was for the stated reason that the petitioner did not meet the income criteria fixed by the Finance Department. The rejection order was conveyed to the petitioner on 11.9.2012.
Petitioner challenged this order in Civil Writ Petition No. 10257/2012.
The petition was allowed on 02.04.2015. The order passed by the respondents rejecting petitioner's case of compassionate appointment was quashed. Respondents were directed to consider the case of the petitioner afresh in accordance with law laid down in the pronouncements referred to in the judgment.
2(iv) Petitioner's fresh representation dated 10.04.2015 submitted in terms of the judgment dated 02.04.2015 was rejected by the respondents on 7.9.2015. The reason for rejecting the case of the petitioner was that the family income of the deceased Government servant was Rs.2,75,388/- per year, therefore, petitioner's case did not fall under the income ceiling fixed by the Government for providing employment on compassionate ground.
2(v) Dissatisfied, petitioner instituted the second Writ Petition No.4133/2015. This petition was allowed on 8.10.2015 and ::: Downloaded on - 29/12/2022 20:37:21 :::CIS 4 impugned order dated 7.9.2015 was quashed. Respondents were directed to consider petitioner's case for appointment on .
compassionate grounds without taking into account the income slab in terms of the tests and principles laid down in LHLJ 2016 (HP) (DB) 113 (Surender Kumar & Ors Vs. State of H.P. and others decided on 6.10.2015).
2(vi) Respondents-State assailed the judgment dated 8.10.2015 before the Hon'ble Apex Court. Civil Appeal No. 971/2019 so instituted by the respondents/State was disposed of on 17.1.2019 with following order:-
"The case relates to compassionate appointment. The father of the respondent was an Assistant Engineer in the Public Works Department. He died on 29 October 2002 leaving behind a family of six minor children and a disabled widow. In October 2003 the respondent attained the age of majority and submitted an application for compassionate appointment on 15 December 2003.
It appears that in the course of processing, a fresh income certificate was required to be produced which, according to the respondent, was furnished in 2006.
In September 2012 the application was rejected following which a writ petition was filed under Article 226 of the Constitution. The High Court directed reconsideration of the application. The High Court has followed its decision in Surinder Kumar & Ors. vs. State of H.P decided on 6 October 2015 in C.W.P. No. 9094/2013 and connected matters.
The judgment of the High Court in the above-mentioned matter has been considered by this Court in State of Himachal Pradesh vs. Shashi Kumar decided on 16 January 2019.
In view of the above facts and circumstances, we remand the matter back to the State Government to consider the applications submitted by the respondent afresh, having regard to the principle laid down by this Court in the case noted above and in terms of the policy.
The State Government shall communicate a reasoned order within three months.
The appeal is, accordingly, disposed of. No costs.::: Downloaded on - 29/12/2022 20:37:21 :::CIS 5
Pending application(s), if any, shall also stand disposed."
2(vii) In view of the directions passed by the Hon'ble Apex .
Court, the respondents/State reconsidered the application submitted by the petitioner. Once again petitioner's case for appointment on compassionate basis was turned down by the respondent-department vide office order dated 4.9.2020 (Annexure P-13). The reasons given for rejection read as under:-
"Employment assistance case of the Shri Yudhvir Singh S/o Late Sh. Dharam Singh has been considered by the Departmental Scruiting Committee Constituted at Govt. level and after due consideration, the committee has recommended case for rejection. As per recommendation of the committee, the applicant does not meet the financial/income criteria as prescribed in instructions date 07.03.2019 and 01.11.2019 issued by the finance department. Hence, the case of applicant after consideration is hereby rejected and applicant be intimated accordingly."
It is in the above factual background, the petitioner has instituted the present writ petition.
3. Contentions Learned counsel for the petitioner strenuously submitted that the respondents could not have rejected the case of the petitioner by applying a Policy, which came into force in the year 2019. The petitioner had applied for compassionate appointment on 15.12.2003. In view of the principles settled by the Hon'ble Apex ::: Downloaded on - 29/12/2022 20:37:21 :::CIS 6 Court in various pronouncements, the respondents could not have applied a Policy, which was not in force either at the time of death of .
father of the petitioner or at the time of petitioner's applying for appointment on compassionate ground. Learned Additional Advocate General for the respondents/State submitted that petitioner's case was considered by the respondent-department strictly as per the order passed by the Hon'ble Apex Court on 17.01.2019 in the case of the petitioner. It was in accordance with the order passed by the Hon'ble Apex Court on 17.01.2019 read with the judgment reported in 2019(3) SCC 653 (State of Himachal Pradesh & Anr. Vs. Shashi Kumar) decided on 16.01.2019 that the respondents/State applied the income criteria in the case of the petitioner. The petitioner did not satisfy the prescribed income criteria, hence, his case was rejected.
4. Having heard learned counsel on the respective sides, in our considered view, a case for interference is made out. Reasons for taking this view are:-
4(i) It is not in dispute that petitioner's father died in harness on 29.10.2002.
4(ii) Petitioner on attaining the age of majority had applied on 15.12.2003 alongwith all requisite documents for grant of compassionate appointment. His case was recommended by the Executive Engineer on 28.04.2004, by the Superintending Engineer on 19.06.2004 and by the Engineer-in-Chief on 28.06.2004.::: Downloaded on - 29/12/2022 20:37:21 :::CIS 7
4(iii) On direction of the respondent-department, the petitioner furnished a fresh income certificate dated 30.03.2006 to the .
respondents, wherein income of his family was certified to be below Rs.1,58,000/- per annum. The respondent-department rejected petitioner's case for appointment on compassionate ground for the first time on 11.09.2012 on the ground that income of his family did not meet the income criteria. This order was quashed by this Court vide judgment dated 02.04.2015 passed in CWP No. 10257/2012.
4(iv) The respondent-department passed another order on 07.09.2015 in purported compliance to the judgment dated 02.04.2015. Petitioner's case was once again rejected for want of satisfaction of the income ceiling limit fixed by the Government. The order passed by the respondents on 7.9.2015 was also quashed by this Court in its judgment dated 8.10.2015 passed in CWP No. 4133/2015.
4(v) It is pertinent to notice here that in the judgment dated 8.10.2015, respondents were directed to reconsider petitioner's case for appointment on compassionate ground without taking into account the income slab in terms of the principles laid down in Surinder Kumar's case (supra). In Surinder Kumar's case ( Latest HLJ 2016 (HP) (DB) 113), the Division Bench of this Court had framed nine issues in following terms:-
::: Downloaded on - 29/12/2022 20:37:21 :::CIS 8"Point No.(i) : Whether the amount of family pension and other retiral benefits, received by the family of the deceased-employee, can be included in the family income for denying the .
compassionate appointment?
Point No.(ii) - Which date would be relevant viz. a viz. applicability of the Policy - whether the date of death of the employee or the date when the application was presented, for the first time, for seeking employment on compassionate ground or the date on which the application came up for consideration before the Authorities, and whether a claim for compassionate appointment can be decided on the basis of subsequent amendment, when the application was presented prior to such amendment? Point No.(iii) - If an applicant was in lis and his case was directed to be reconsidered, whether the claim of such applicant is to be determined as per the policy which was existing at the time of passing the order or as per the policy which was in place at the time of staking claim for the first time or as per the policy existing at the time of consideration?
Point No.(iv) Whether the applicant can claim appointment on compassionate ground against a higher cadre, once he had been appointed in the lower cadre?
Point No.(v): In case a person is appointed on contract basis, whether he is within his rights to seek appointment on regular basis?
Point No.(vi): In a given set of cases, in one case the appointment on compassionate ground has been offered against a Class-III post and in other case, the appointment has been offered to a Class-IV post, whether it amounts to discrimination? Point No.(vii): Whether a person can claim compassionate appointment after a considerable delay?
Point No.(viii): Whether requisite qualification or age can be relaxed?
Point No.(ix): In case one or more dependants of a deceased- employee is/are in service, though living separately, whether that can be made a ground to deny compassionate appointment to the other dependant of the deceased-employee?"::: Downloaded on - 29/12/2022 20:37:21 :::CIS 9
4(vi) It is also relevant to notice here that the respondents/State had assailed the judgment in Surinder Kumar's .
case (supra) before the Hon'ble Apex Court only on Point No.(i) and Point No. (vii). Thus, Point No.(ii) concerning the date to be considered for determining the applicability of the Policy, decided in Surinder Kumar's case had been accepted by the respondents/State.
The second point was answered by the Division Bench in Surinder Kumar's case as under:-
"63. Applying the ratio to the cases in hand and keeping in view the provisions of the Policy in question, we hold that the date of death of the employee is not to be taken into consideration while seeing the applicability of the Policy. Similarly, the date on which the application comes up for consideration before the competent Authority is also of no importance, since, because of the lackadaisical approach of the Departments, such cases may have been kept pending for a pretty long time and during that period, the policy may have been amended. Thus, the applicants, in such circumstances, cannot be made to suffer for the inaction on the part of the Authorities.
"64. Accordingly, we hold that the case of the applicant would be governed by the provisions of the Policy which was in place at the time when the application, for the first time, was made by the applicant to the Department, and in the case of a minor, the right to apply would commence from the date he/she attained majority, as given in the Scheme and his/her application would be considered as per the Policy/Scheme which was in vogue at the time of presenting the application. In the matters where the Court or the Tribunal has directed the Authorities to consider the case of the applicant afresh, the claim of the applicant has to be determined as per the policy applicable at the time of presenting ::: Downloaded on - 29/12/2022 20:37:21 :::CIS 10 the application for the first time before the Department concerned. Points No.(ii) and (iii) are answered accordingly."
.
4(vii) In the instant case, petitioner's father died on 29.10.2002. The petitioner on attaining the age of majority had applied for grant of compassionate appointment on 15.12.2003. It is not in dispute that in terms of 1990 policy applicable on the said date, no income criteria was prescribed for appointment on compassionate ground. It is not disputed that no income criteria was laid down in the applicable policy during the years 2003-2008. The respondents could not have rejected petitioner's case for appointment on compassionate ground by applying income criteria laid down in 2019 Policy. As observed earlier in Shashi Kumar's case (supra), the SLP was filed by the State before the Hon'ble Apex Court only on two points out of the total nine points framed in Surinder Kumar's case. In paragraph-
19 of Shashi Kumar's case, the Hon'ble Apex Court had taken into consideration the fact that Policy applicable in that case was formulated on 18.1.1990. While deciding Shashi Kumar's case supra on 16.1.2019, [(2019) 3 SCC 653], Hon'ble Apex Court, in paras 29 to 31 noticed its earlier decisions and held that a subsequent policy cannot be made the basis to reject a case for compassionate appointment. The paras read as under:-
"29. Now, it is in this background that it would be necessary to advert to the decision in Canara Bank (supra). A Scheme for compassionate appointment of 8-5-1993 was prevalent in Canara ::: Downloaded on - 29/12/2022 20:37:21 :::CIS 11 Bank when the employee died on duty in October 1998. Faced with the rejection of an application for compassionate appointment, the High Court was moved in a Writ Petition in which .
a learned Single Judge issued a direction for reconsideration of the claim for appointment. During the pendency of the appeal before the Division Bench, the Scheme for compassionate appointment was replaced by a new Scheme providing for ex gratia in lieu of appointment. The main issue which fell for consideration before this Court was whether the subsequent Scheme which was formulated in 2005 providing for ex gratia payment would govern or whether the application would have to be disposed of on the basis of the earlier Scheme of 1993. It may be noted that the application for compassionate appointment in that case had been rejected on the ground that the family of the respondent was not in indigent circumstances, as required by the Scheme for compassionate appointment of 1993.
30. Dealing with the applicability of the subsequent Scheme, a Bench of two-Judges of this Court held, following the earlier decision in State Bank of India Vs. Jaspal Kaur, that the cause of action to be considered for compassionate appointment arose when the earlier Scheme was in force. Hence, the claim could not be decided on the basis of the subsequent Scheme which provided only for the payment of ex gratia. Moreover, as a matter of fact, the subsequent scheme was superseded in 2014 by reviving the Scheme for the provision of compassionate appointment.
31. Hence, the issue which has been dealt with in Canara Bank is whether the application for grant of compassionate appointment could have been rejected on the basis of a scheme which had come into force after the date of submission of the application. That, as this Court observed, was the main question which fell for consideration. The Bench of two-Judges, however, also noted that it was urged on behalf of the appellant - Bank that the family of the respondent was in receipt of family pension. This, the Court held, was of no consequence in considering the application for compassionate appointment."::: Downloaded on - 29/12/2022 20:37:21 :::CIS 12
It will also be appropriate to notice the principle well settled by the Apex Court in plethora of judgments that for .
appointment on compassionate ground, the policy prevalent at the time of death of deceased-employee is required to be considered and not the subsequent Policy [Re: 2022 (2) SCC 157 titled State of Madhya Pradesh & Ors Vs. Ashish Awasthi]
5. For the foregoing reasons, we do not find any justification in respondent-department rejecting the case of the petitioner for appointment on compassionate ground by applying the income criteria laid down in the Policy for appointment on compassionate ground framed in the year 2019. Accordingly, we allow this writ petition. Office order dated 4.9.2020 (Annexure P-13) is quashed and set aside. Respondents are directed to consider the case of the petitioner for appointment on compassionate ground in terms of the policy prevailing on the date of petitioner's applying for the post. The appropriate order, in accordance with law, be passed in this regard within a period of six weeks. Taking into consideration the period of 9 years taken by the respondents to decide the petitioner's representation dated 15.12.2003-rejected vide order dated 11.9.2012, the fact that the petitioner has been compelled to knock the door of this Court three times practically for the same subject matter, and also taking into account the present age of the petitioner, we impose costs of Rs.25,000/- upon the respondents. The costs be paid to the ::: Downloaded on - 29/12/2022 20:37:21 :::CIS 13 petitioner within six weeks from today. Pending miscellaneous application(s), if any, also to stand disposed of.
.
(A. A. Sayed) Chief Justice ( Jyotsna Rewal Dua ) Judge 27th December, 2022(rohit) r to ::: Downloaded on - 29/12/2022 20:37:21 :::CIS