Himachal Pradesh High Court
Bhupinder Kumar vs 653 on 12 August, 2021
Bench: Vivek Singh Thakur
1
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REPORTABLE/NON-REPORTABLE
IN THE HIGH COURT OF HIMACHAL PRADESH AT
SHIMLA
ON THE 12th DAY OF AUGUST, 2021
.
BEFORE
HON'BLE MR. JUSTICE VIVEK SINGH THAKUR
CIVIL WRIT PETITION (ORIGINAL APPLICATION) NO.5713
OF 2019
Between:-
1. BHUPINDER KUMAR S/O LATE SH. SUKH
RAM (MATE), VPO PAPROLA TEHSIL
BAIJNATH, DISTRICT KANGRA, H.P.
...PETITIONER
(BY SH.SANJAY DUTT VASUDEVA, ADVOCATE)
AND
1. STATE OF HIMACHAL PRADESH
THROUGH PRINCIPAL SECRETARY (PW)
TO THE GOVERNMENT OF HIMACHAL
PRADESH, SHIMLA-2
2. THE ENGINEER-IN-CHIEF HPPWD
HIMACHAL PRADESH, SHIMLA-2
3. THE CHIEF ENGINEER NORTH, HPPWD
DHARAMSHALA, DISTRICT KANGRA,
H.P.
4. ASSISTANT ENGINEER HPPWD (B & R)
DIVISION BAIJNATH DISTRICT KANGRA,
H.P.
...RESPONDENTS
(BY MS.DIVYA SOOD, DEPUTY ADVOCATE GENERAL)
This petition coming on for orders this day, the Court
passed the following:
JUDGMENT
Present petition has been filed for quashing
communications dated 05.06.2009, 15.06.2009 and 23.02.2010,
sent by Principal Secretary (PW) to the Government of Himachal
Pradesh, Engineer-in-Chief, HPPWD Himachal Pradesh and
Assistant Engineer HPPWD (B&R) Division Baijnath, District
.
Kangra, H.P., whereby it has been communicated that case of
the petitioner for appointment on compassionate grounds was
reconsidered at Government level and could not find favour as
the family/dependents of the deceased Government servant
could not be treated as indigent, with further prayer seeking
direction to the respondents to consider case of the petitioner for
compassionate appointment.
2. Learned counsel for the petitioner while referring to
the latest judgment passed by the Apex Court in case titled State
of Himachal Pradesh and another vs. Shashi Kumar, (2019) 3 SCC
653, contends that now since State Governments have been
directed to enhance the maximum limit of income, petitioner
would be content and satisfied, in case respondents are directed
to consider his case for appointment on compassionate grounds
afresh in terms of guidelines, if any, framed by the Government
of Himachal Pradesh pursuant to directions contained in the
aforesaid judgment rendered by the Hon'ble Apex Court,
relevant para of which reads as under:
"34. That leads the Court to the next aspect of the
matter relating to the fixation of an income slab. In
our view, the fixation of an income slab is, in fact, a
measure which dilutes the element of arbitrariness.
While, undoubtedly, the facts of each individual case
have to be borne in mind in taking a decision, the
fixation of an income slab subserves the purpose of
bringing objectivity and uniformity in the process of
decision making. The High Court was of the view that
it was not open to the Finance Department to amend
.
the Scheme. The circulars which are issued by the
Finance Department cannot be construed to be an
amendment of the policy. They are really clarificatory
of the intent and purpose of the Scheme. The
circulars are explanatory, since they are intended to
guide the decision maker on the concept of indigency
which is incorporated in the Scheme. In fact, as we
have noted earlier, in the decision of this court in
Shashank Goswami(supra), the Court was specifically
dealing with a circular of the Comptroller and Auditor
General of India which had imposed income limits
respectively for Group 'B', 'C' and 'D' posts for the
purpose of guiding the decision in the case of
compassionate appointment. The fixation of income
limits was not construed to be and is not an arbitrary
exercise of power. However, what we find from the
record of this case is that the income limit was fixed
(as the High Court observed) on 29 September 2008
by the letter of the Finance Department. The income
limit of Rs.1,00,000/- for a family of four persons has
since been revised to Rs.1,50,000/- on 20 April 2011.
Mr. P.S. Patwalia has, on instructions, stated before
this Court that this ceiling has been reiterated on 27
July 2017. What should be the appropriate income
criterion is undoubtedly a matter of policy for the
State Government to determine. However, we would
impress upon the State Government the need to
periodically revise the income limits preferably at
intervals of three years. Inflation and the increase in
the cost of living have an important bearing on
financial exigencies faced by families of serving as
well as deceased employees. In fixing the income
criteria for considering cases of compassionate
appointment, it would be appropriate if the State
.
revisits the income limit at periodic intervals, as we
have indicated above. We clarify that it would be
open to the State to revise the income limits at a
frequency of less than three years, if the State is so
advised."
3. In the aforesaid judgment, the Hon'ble Apex Court
has held that State Governments need to periodically revise the
income limits preferably at intervals of three years. Besides
above, the Hon'ble Apex Court in the aforesaid judgment has
held that in fixing the income criteria for considering cases of
compassionate appointment, it would be appropriate if the State
revisits the income limit at periodic intervals and it would be
open to the State to revise the income limits at a frequency of
less than three years, if the State is so advised
4. Learned counsel for the petitioner further contends
that pursuant to aforesaid judgment rendered by the Hon'ble
Apex Court, State of Himachal Pradesh has revised the income
limit, whereby maximum limit of income has been fixed @
`2,25,000/- per annum. If it is so, case of the petitioner is
required to be considered afresh by the authority concerned in
terms of the policy.
5. In the impugned communications, reasons and
criteria on the basis of which petitioner has not been considered
as indigent person have not been disclosed.
6. Consequently, in view of the above, present petition
is allowed and impugned orders dated 05.06.2009, 15.06.2009
and 23.02.2010 are quashed and set-aside. Respondents/
.
competent authority is directed to consider case of the petitioner
for appointment on compassionate grounds in terms of policy
framed by the Government of Himachal Pradesh in consonance
with judgment rendered by the Apex Court in Shashi Kumar's
case supra.
7. Since petitioner is agitating and waiting for relief
since 2008, it is expected from respondents that they will do
needful expeditiously, preferably within a period of eight weeks
from the date of passing of this judgment.
8. Present petition is disposed of alongwith pending
application(s), if any.
(Vivek Singh Thakur),
Judge.
August 12, 2021
(Purohit)
