Himachal Pradesh High Court
Nishant Kumar vs State Of H.P. & Others on 11 November, 2020
Bench: L. Narayana Swamy, Anoop Chitkara
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA LPA No.6 of 2020 Reserved on : 05.10.2020 .
Decided on: 11.11.2020
Nishant Kumar ...Appellant.
Versus
State of H.P. & others ...Respondents
Coram
The Hon'ble Mr. Justice L. Narayana Swamy, Chief Justice The Hon'ble Mr. Justice Anoop Chitkara, Judge Whether approved for reporting?
For the appellants: Mr. Subhash Mohan Snehi, Advocate.
For the respondents: Mr. Ashok Kumar, A.G. with Mr. Adarsh Sharma, Ms. Ritta Goswami, & Mr. Nand Lal Thakur, Addl. A.Gs.
Anoop Chitkara, Judge.
Challenging the rejection of the representation made by son of the employee, who died in harness, the said son, had filed an Original Application No. 6881 of 2016, before Erstwhile H.P. State Administrative Tribunal, which on abolition of the Tribunal stood transferred to this Court and was re-registered as CWPOA No. 3137 of 2019, seeking employment on compassionate grounds.
2. Admittedly the facts are that Shri Ram Singh, who was working as Junior Basic Teacher under respondents No.2 and 3, expired in harness on 27.7.2004. At the time of death, he had the following legal heirs:
::: Downloaded on - 12/11/2020 20:16:20 :::HCHP 2Sl. No. Name Relationship with the Employed or no particulars employee & age or employment and emoluments.
1. Smt. Janki Devi Mother, 70 years Not employed .
2. Smt. Nirmala Devi Wife, 49 years Not employed
3. Nishant Kumar Son, 18 years Not employed.
4. Ms. pratibha Daughter, 16 years Not employed.
3. The department granted family pension of the deceased employee in favour of his widow Smt. Nirmala Devi. Sometime, prior to 19th February, 2011, the petitioner applied for appointment on compassionate grounds, in lieu of the job of his father, who died in harness. He filled up the proforma for such employment and annexed the same with the original application, the details of the proforma reveal that the petitioner was born on 5.12.1991 and could not qualify his matriculation examination because of compartment in mathematics.
4. The Deputy Director of Elementary Education forwarded the case of the petitioner for employment on compassionate grounds for necessary action to the Director Elementary Education vide office letter dated 19.2.2011. Vide communication dated 3 rd June, 2011, Annexure A-12, the Additional Director (Administration) returned the case to the Deputy Director (Elementary Education), informing him that the case of the petitioner is not covered under the Policy framed by the Government for appointment on compassionate grounds. The case of the petitioner is that the Deputy Director never communicated such rejection to him. The petitioner sought information about his application made for employment on compassionate grounds under Right to ::: Downloaded on - 12/11/2020 20:16:20 :::HCHP 3 Information Act. Vide communication dated 2.12.2016, the Public Information Officer sent the requisite information to him vide letter .
Annexure A-13, thus on coming to know about the rejection in the month of December, 2016 itself, the petitioner challenged the rejection order dated 3.6.2011, Annexure A-12 by filing an Original Application under Section 19 of the H.P. Administrative Tribunal Act, 1985.
5. The respondents filed response to the original application.
The contention of the respondents is that in the year 2010, the petitioner applied for appointment for the post of Class-IV employee. In the said application, he attached the affidavit of his mother Nirmala Devi with the declaration that due to health problems, she was not in a position to do Government Job and had no objection, if such service is offered to her son Nishant Kumar. The respondents fruther stated that although as per the Government Policy, Nirmala Devi, the widow of the employee, who died in harness, was entitled to get the job on compassionate grounds, yet she has shown her inability to do so by filing an affidavit, in which she had asked for the said job for her son.
The respondents further contended that the petitioner has visited the office on numerous occasions and he has duly apprised about the rejection of the case.
6. The petitioner had filed rejoinder to the reply and stated that the Policy framed by the State dated 18.1.2019, was still in force and applicable to him.
::: Downloaded on - 12/11/2020 20:16:20 :::HCHP 47. Vide Judgment dated 16.12.2019, learned Single Judge, does not find any merit in this petition and the same was dismissed.
.
Challenging such dismissal, the petitioner has preferred the present appeal before this Court under Clause 10 of the Letters Patent of High Court of Judicature at Lahore, applicable to the High Court of Himachal Pradesh.
8. We have heard learned counsel for the parties and gone through the record.
9. The case of the petitioner-appellant is that the respondents had offered appointment to his mother vide letter No. EDN-SLN(E-
I)17/2007-6896, dated 30.06.2009, however, at that time the mother of the petitioner was surrounded with adverse family circumstances and she was also suffering from health ailments and subsequently did not find her in a position to perform the Government Job.
10. Given above, the mother of the petitioner sworn in an affidavit asking the respondents to offer the job to her son. The claim of the petitioner is that in the office memorandum Annexure P-4, which is Policy issued by the Government for appointment of dependents of an employee, who dies in harness, the petitioner was entitled in terms of its clause 2. His grievances is that the respondents had rejected his case on the ground that as per the Policy, it was only the widow or orphans, who are eligible for compassionate appointment. His another grievance is that learned Single Judge has dismissed the petition on the ground of ineligibility as well as on the ground of delay in applying ::: Downloaded on - 12/11/2020 20:16:20 :::HCHP 5 for compassionate appointment. Relevant portion of the office memorandum No. Per (AP-II) F(4)-4/89, dated 18.1.1990, is extracted .
as follows:-
"2.To whom the Policy is applicable:- The employment assistance on compassionate grounds will be allowed in order to priority only to widow or a son or an unmarried daughter (in case of unmarried Government Servant to father, mother, brother and unmarried sister) of:-
a) a Government servant who die while in service (including by suicide) leaving his family in immediate need of assistance.
b) A Daily wage employee who dies while in service after having rendered atleast 5 ryears service with not less than 240 days on daily wage basis in a year (to be computed as an average of the number of days served in the proceding years) leaving his family in immediate need of assistance. In such cases compassionate employment would be on daily wages only.
c) a Government servant who has been missing for more than two years and the family needs the immediate assistance.
d) a Government servant (Class-III and IV only) who retires on medical grounds under Rule 38 of the C.C.S. (Pension) Rules, 1972.
Provided the employee so retiring has not crossed the age of 53 years and 55 years in case of Class-III and IV respectively.
e) a Government servant who dies during the period of extension in service but not re- employment, leaving his family in immediate need of assistance."
11. In the response filed to the original application, the department did not place on record any Policy based upon which they ::: Downloaded on - 12/11/2020 20:16:20 :::HCHP 6 had stated that only the widow and orphans are eligible, which was subsequent to this Policy.
.
12. Be that as it may, the reference to Clause 8 of the Policy dated 18.1.1990, would clinch the entire issue. Clause 8 of the Policy read as follows:
8)Belated requests for compassionate
appointments: Requests for grant of
employment assistance should be received in the department concerned within three years of the death of the Government servant. In case where none of the sons/daughters of the deceased Government servant attain majority (age of 18 years) at the time of death of the r government servant, the time limit for receipt of request for employment assistance in department concerned will be attainment of age of 21 years by the eldest son/un-married daughter. No relaxation will be allowed in entertaining requests beyond the above age except in the case of sons/un-married daughter/widow of deceased Government servants belonging to the difficult areas a laid down in the Transfer Policy."
13. The Policy is of 1990 and after that 5 th and 6th Pay Commission came, which substantially improve the status of the Government employee. Thus lot of water has flown under the Bridge.
The latest position is correctly revealed in the judgment passed by Hon'ble Supreme Court in State of Himachal Pradesh versus Shashi Kumar, (2019) 3 SCC 653, wherein the Hon'ble Supreme Court has observed that subject to the State's policy, and as an exception to the rule, the employer offers appointment on the compassionate grounds to the dependent of the deceased employee, to protect the family from financial hardship and cater to the immediate financial needs.
::: Downloaded on - 12/11/2020 20:16:20 :::HCHP 714. For the first time the petitioner applied somewhere in the year 2010. As per his matriculation certificate, the date of birth of the .
petitioner is 5.12.1991. Meaning thereby that he was 19 years of age at that time. The department rejected the claim on 3.6.2011, vide Annexure A-12. After that the petitioner applied for information under the Right to Information Act on 16.11.2016, and get the requisite information on 2.12.2016.
15. In response to the original application, the employer stated that it was not that the petitioner remain quietly waiting for the response of the respondents from the rejection of his representation in the year 2011, but was pursuing his case seriously and was fully aware of the factum of such rejection. This Court cannot go into this disputed question of fact. In rejoinder filed to the original application, the petitioner did not produce any evidence to controvert or contradict the contentions raised by the respondent. His only averment is that the respondent never informed him and he only came to know for the first time in the year 2016, when he received information under the Right to Information Act. In the year 2020, the petitioner was aware about the Policy of the Government for claiming appointment on compassionate grounds and that is how, how applied for the same. It would be almost impossible to believe that the petitioner has no knowledge till December 2016 and he never follow up with the department despite the fact that he was unemployed.
16. Subsequent Police would reveal as follows:
::: Downloaded on - 12/11/2020 20:16:20 :::HCHP 817. Analyzing the factual matrix would lead to a irresistible conclusion that the petitioner-appellant had not furnished any .
document to prove the delay of about 5 years from 2011 till 2016.
Under Section 21 of Administrative Tribunal Act, relevant to challenge the rejection is one year.
18. At this stage, it would be relevant to refer to Judicial precedents relating to compassionate appointment, which are as follows:
"(a) In Umesh Kumar Nagpal vs. State of Haryana & others, (1994) 4 SCC 138 the Supreme Court holds as follows:-.
"2. The question relates to the considerations which should guide while giving appointment in public services on compassionate ground. It appears that there has been a good deal of obfuscation on the issue. As a rule, appointments in the public services should be made strictly on the basis of open invitation of applications and merit. No other mode of appointment nor any other consideration is permissible. Neither the governments nor the public authorities are at liberty to follow any other procedure or relax the qualifications laid down by the rules for the post.
However, to this general rule which is to be followed strictly in every case, there are some exceptions carved out in the interests of justice and to meet certain contingencies. One such exception is in favour of the dependants of an employee dying in harness and leaving his family in penury and without any means of livelihood. In such cases, out of pure humanitarian consideration taking into consideration the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made in the rules to provide gainful employment to one of the dependants of the deceased who may be eligible for such employment. The whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post much less a post for post held by the deceased. What is further, mere death of an employee in harness does not entitle his family to such source of ::: Downloaded on - 12/11/2020 20:16:20 :::HCHP 9 livelihood. The government or the public authority concerned has to examine the financial condition of the family of the deceased, and it is only if it is satisfied, that but for the provision of employment, the family will not be able to meet .
the crisis that a job is to be offered to the eligible member of the family. The posts in Classes III and IV are the lowest posts in non-manual and manual categories and hence they alone can be offered on compassionate grounds, the object being to relieve the family, of the financial destitution and to help it get over the emergency. The provision of employment in such lowest posts by making an exception to the rule is justifiable and valid since it is not discriminatory. The favourable treatment given to such dependant of the deceased employee in such posts has a rational nexus with the object sought to be achieved, viz. , relief against destitution. No other posts are expected or required to be given by the public authorities for the purpose. It must be remembered in this connection that as against the destitute family of the deceased there are millions of other families which are equally, if not more destitute. The exception to the rule made in favour of the family of the deceased employee is in consideration of the services rendered by him and the legitimate expectations, and the change in the status and affairs, of the family engendered by the erstwhile employment which are suddenly upturned.
3. Unmindful of this legal position, some governments and public authorities have been offering compassionate employment sometimes as a matter of course irrespective of the financial condition of the family of the deceased and sometimes even in posts above Classes III and IV. That is legally impermissible.4. It is for these reasons that we have not been in a position to appreciate judgments of some of the High courts which have justified and even directed compassionate employment either as a matter of course or in posts above Classes III and IV. We are also dismayed to find that the decision of this court in Sushma Gosain v. Union of India, (1989) 4 SCC 468, has been misinterpreted to the point of distortion. The decision does not justify compassionate employment either as a matter of course or in employment in posts above Classes III and IV." ...
(b) In Jagdish Prasad vs. State of Bihar & another, (1996) 1 SCC 301, the Supreme Court holds as follows:
"2. The High Court had dismissed the writ petition seeking appointment of the appellant on compassionate ::: Downloaded on - 12/11/2020 20:16:20 :::HCHP 10 grounds. The admitted fact is that he was four years' old at the time when his father died in harness in the year 1971. He filed the writ petition after attaining majority in 1994 for a direction to appoint him on compassionate grounds which .
was negatived.
3. It is contended for the appellant that when his father died in harness, the appellant was minor; the compassionate circumstances continue to subsist even till date and that, therefore, the court is required to examine whether the appointment should be made on compassionate grounds. We are afraid, we cannot accede to the contention. The very object of appointment of a dependent of the deceased employees who die in harness is to relieve unexpected immediate hardship and distress caused to the family by sudden demise of the earning member of the family. Since the death occurred way back in 1971, in which year the appellant was four years old, it cannot be said that he is entitled to be appointed after he attained majority long thereafter. In other words, if that contention is accepted, it amounts to another mode of recruitment of the dependent of a deceased government servant which cannot be encouraged, de hors the recruitment rules."
(c) In MGB Gramin Bank vs. Chakrawarti Singh, (2014) 13 SCC 583 the Supreme Court holds as follows:
"6. Every appointment to public office must be made by strictly adhering to the mandatory requirements of Articles 14 and 16 of the Constitution. An exception by providing employment on compassionate grounds has been carved out in order to remove the financial constraints on the bereaved family, which has lost its bread-earner. Mere death of a Government employee in harness does not entitle the family to claim compassionate employment. The Competent Authority has to examine the financial condition of the family of the deceased employee and it is only if it is satisfied that without providing employment, the family will not be able to meet the crisis, that a job is to be offered to the eligible member of the family. More so, the person claiming such appointment must possess required eligibility for the post. The consistent view that has been taken by the Court is that compassionate employment cannot be claimed as a matter of right, as it is not a vested right. The Court should not stretch the provision by liberal interpretation beyond permissible limits on humanitarian grounds. Such appointment should, therefore, be provided immediately to ::: Downloaded on - 12/11/2020 20:16:20 :::HCHP 11 redeem the family in distress. It is improper to keep such a case pending for years.
In Umesh Kumar Nagpal v State of Haryana & Ors., (1994) .
4 SCC 138, this Court has considered the nature of the right which a dependant can claim while seeking employment on compassionate ground. The Court observed as under:
"2. ...The whole object of granting compassionate employment is, thus, to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post much less a post for post held by the deceased. ... The exception to the rule made in favour of the family of the deceased employee is in consideration of the services rendered by him and the legitimate expectations, and the change in the status and affairs of the family engendered by the erstwhile employment which are suddenly upturned.
4,. The only ground which can justify compassionate employment is the penurious condition of the deceased's family.
* * *
6. ... The consideration for such employment is not a vested right.....
The object being to enable the family to get over the financial crisis." [emphasis added] 8 An 'ameliorating relief' should not be taken as opening an alternative mode of recruitment to public employment. Furthermore, an application made at a belated stage cannot be entertained for the reason that by lapse of time, the purpose of making such appointment stands evaporated.
9. The Courts and the Tribunals cannot confer benediction impelled by sympathetic considerations to make appointments on compassionate grounds when the regulation framed in respect thereof did not cover and contemplate such appointments.
10.In A. Umarani v Registrar, Co-operative Societies & Ors., (2004) 7 SCC 112, while dealing with the issue, this Court held that even the Supreme Court should not exercise the extraordinary jurisdiction under Article 142 issuing a direction to give compassionate appointment in contravention of the provisions of the Scheme/Rules etc., as the provisions have to be complied with mandatorily and any appointment given or ordered to be given in violation of the scheme would be illegal.::: Downloaded on - 12/11/2020 20:16:20 :::HCHP 12
11. The word 'vested' is defined in Black's Law Dictionary (6th Edition) at page 1563, as .
"Vested-, Fixed; accrued; settled; absolute; complete. Having the character or given in the rights of absolute ownership; not contingent; not subject to be defeated by a condition precedent. Rights are 'vested' when right to enjoyment, present or prospective, has become property of some particular person or persons as present interest; mere expectancy of future benefits, or contingent interest in property founded on anticipated continuance of existing laws, does not constitute vested rights."
12. In Webster's Comprehensive Dictionary (International Edition) at page 1397, 'vested' is defined as Law held by a tenure subject to no contingency; complete; established by law as a permanent right; vested interest. Bibi Sayeeda v State of Bihar, (1996) 9 SCC 516; and J.S. Yadav v State of Uttar Pradesh, (2011) 6 SCC 570.
13. Thus, vested right is a right independent of any contingency and it cannot be taken away without consent of the person concerned. Vested right can arise from contract, statute or by operation of law. Unless an accrued or vested right has been derived by a party, the policy decision/ scheme could be changed. (Vide: Kuldip Singh v Government, NCT Delhi, (2006) 5 SCC 702)
14. A scheme containing an in pari materia clause, as is involved in this case was considered by this Court in State Bank of India & Anr. vs. Raj Kumar, 2010 11 SCC 661. Clause 14 of the said Scheme is verbatim to clause 14 of the scheme involved herein, which reads as under:
"14. Date of effect of the scheme and disposal of pending applications: The Scheme will come into force with effect from the date it is approved by the Board of Directors. Applications pending under the Compassionate Appointment Scheme as on the date on which this new Scheme is approved by the Board will be dealt with in accordance with Scheme for payment of ex-gratia lump sum amount provided they fulfill all the terms and conditions of this scheme."
15. The Court considered various aspects of service jurisprudence and came to the conclusion that as the appointment on compassionate ground may not be claimed as a matter of right nor an applicant becomes entitled ::: Downloaded on - 12/11/2020 20:16:20 :::HCHP 13 automatically for appointment, rather it depends on various other circumstances i.e. eligibility and financial conditions of the family, etc., the application has to be considered in accordance with the scheme. In case the Scheme does not .
create any legal right, a candidate cannot claim that his case is to be considered as per the Scheme existing on the date the cause of action had arisen i.e. death of the incumbent on the post. In State Bank of India & Anr. vs. Raj Kumar, (2010) 11 SCC 661 , this Court held that in such a situation, the case under the new Scheme has to be considered.
16. In view of the above position, the reasoning given by the learned Single Judge as well as by the Division Bench is not sustainable in the eyes of law. The appeal is allowed and the impugned judgments of the High Court are set aside."
19. At this juncture, reference to the impugned judgment passed by learned Single Judge, has also arrived at the same conclusion. At this stage, it is appropriate to reproduce paragraph 6, with which fully concur, as follows:
"6. It is more than settled that there is no right to compassionate appointment as it is an exception to general rule that appointment to any public post in service of State must be made in accordance with Articles 14 and 16 of the Constitution and that is the reasons that there has to be a strict adherence to the terms and conditions of the policy relating to compassionate appointment."
20. At this juncture, reference is again made to the reply filed by the respondent in Original Application, wherein their stand is that the petitioner was continuously in contact with his file and he knew that his representation stood rejected. Although, the respondents did not annex any receipt showing that the Deputy Director has communicated the rejection to the petitioner, yet burden was not entirely on the respondents and it is unbelievable that the petitioner was quietly ::: Downloaded on - 12/11/2020 20:16:20 :::HCHP 14 waiting for the respondents till 2016, when he applied under the Right to Information Act. Even otherwise, it was a disputed fact, for which the .
burden was upon the petitioner and in rejoinder he had not denied such disputed fact.
21. On analyzing the entire evidence and law, would lead to the only conclusion that the petitioner did not establish his case for compassionate appointment and nor was the rejection order Annexure A-12 in violation of any Policy. Therefore, we find no ground for interference. r ( L. Narayana Swamy), Chief Justice ( Anoop Chitkara), Judge 11.11.2020 (ps) ::: Downloaded on - 12/11/2020 20:16:20 :::HCHP