Naval Kishore vs State Of H.P & Ors
2021 Latest Caselaw 4236 HP

    IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
               ON THE 31st DAY OF AUGUST 2021
                           BEFORE




                                                            .
         HON'BLE MS. JUSTICE JYOTSNA REWAL DUA





     CIVIL WRIT PETITION(ORIGINAL APPLICATION) No. 7486 OF 2019

         Between:-





         NAVAL KISHORE
         S/O LATE SH. RASILA RAM
         R/O VILLAGE MIYANA,
         POST OFFICE, BALETH,





         TEHSIL SUJANPUR TIHRA,
         DISTRICT HAMIRPUR, H.P.

                                                 .....PETITIONER

         (BY SH. JAGDISH THAKUR, ADVOCATE)

         AND

    1.   STATE OF HIMACHAL PRADESH,


         THROUGH ITS SECRETARY
         (PWD) TO THE GOVT. OF H.P.
         SHIMLA-2.




    2.   STATE OF HIMACHAL PRADESH,
         THROUGH ITS SECRETARY
         (FINANCE) TO THE GOVTERNMENT OF





         HIMACHAL PRADESH, SHIMLA-2.

    3.   ENGINEER-IN-CHIEF,





         HPPWD, HIMACHAL PRADESH,
         SHIMLA-2

    4.   CHIEF ENGINEER, (HAMIRPUR ZONE)
         HPPWD, HAMIRPUR.

    5.   ASSISTANT ENGINEER,
         SUJANPUR SUB DIVISION
         HPPWD, SUJANPUR,
         DISTRICT HAMIRPUR, H.P.
                                             .....RESPONDENTS
         (Ms. Ritta Goswami, Additional Advocate




                                           ::: Downloaded on - 31/01/2022 22:59:05 :::CIS
                                   2



          General with Ms. Seema Sharma,
          Deputy Advocate General)

          Whether approved for reporting?




                                                             .
    __________________________________________________





                This petition coming on for orders this day, the





    Court passed the following:

                              ORDER

Petitioner has preferred this petition against the

rejection of his case for appointment on compassionate ground.

2. Undisputed factual position is that Sh. Rasila Ram,

father of the present petitioner was working as Beldar on regular

basis with the respondent Public Works Department. He died

during the course of employment on 20.06.2011. The petitioner

sought appointment as Beldar/Peon on compassionate ground

on 01.07.2013. His case was considered by the respondents. On

19.03.2015, respondent No.3 rejected the case of the petitioner

for employment on compassionate ground citing following

reason:-

"In response to this office letter referred above the Additional Chief Secretary (PW) to the Govt. of HP vide his letter No.PBW-AB-(2)-134/2014- dated 19.02.2015 has observed that the matter was taken up with Finance Department and it is observed that

the instant proposal of the Department does not meet the financial/income criteria so fixed by the Government in F.D. as per Department of

.

personnel's instruction(s) dated 24.08.2002 & 02.09.2002 vis-vis F.D.'s latest instruction(s) dated 21.12.2012, 18.07.2014 & 19.07.2014 respectively.

Thus, it cannot be considered."

The reasoning given in the above extracted order

makes it evident that petitioner's case of appointment on

compassionate ground was rejected as it did not meet the

financial/income criteria so fixed by the Government as per the

applicable policy.

3. The only ground taken by the petitioner in assailing

the above extracted communication dated 19.03.2015 is that the

rejection of his case was in violation of law laid down in CWP

No.9094/2013, titled Surender Kumar Vs State of H.P & Ors,

decided on 06.10.2015, wherein it was held that the benefits

received by the family of the deceased on account of death as

well as pension, are not to be taken into account for the purpose

of income for the grant of employment on compassionate

ground.

4. The judgment relied upon by learned counsel

passed by a Division Bench of this Court on 06.10.2015 in CWP

No.9094/2013, was challenged by the respondents/State before

the Hon'ble Apex Court in the State of Himachal Pradesh &

.

Another Vs Shashi Kumar. The appeal was decided by the

Hon'ble Apex Court on 16.01.2019 as reported in (2019) 3 SCC

653. The Hon'ble Apex Court in para-4 of the judgment noticed

all the issues framed by the High Court in the judgment dated

6.10.2015. One of the issues framed by the High Court

pertained to inclusion or otherwise of the family pension & retiral

benefits of the deceased employee in the family income for

considering the cases of compassionate appointment. Relevant

part of para-4 of the judgment reads as under:-

"4. The High Court, during the course of the judgment framed as many as nine issues which

were in the following terms:

(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?"

(ii) ...................................."

The appeal was preferred by the respondents/State

before the Hon'ble Apex Court inter alia on the above issue as

well. Relevant para-5 of the judgment in this regard is extracted

hereinafter:-

.

"5.Insofar as the present appeal is concerend, the

State of Himachal Pradesh has contested the decision of the High Court on issues (i) and (vii).

Hence, for the purposes of this appeal, the present judgment governs only the above aspects of the case."

The observation of the High Court was noted by the

Hon'ble Apex Court in following paragraph-15:-

The High Court while dealing with the first issue which it

framed for decision, held that the State is not entitled to take into account family pension and other terminal benefits in determining whether compassionate

appointment should be granted to the dependant of a deceased employee. In coming to this conclusion, the

High Court has relied upon a decision of this Court in

Govind Prakash Verma Vs. Life Insurance Corporation of India and on two subsequent decisions in APSRTC,

Musheerabad Vs. Sarvarunnisa Begum and in Canara Bank Vs. M. Mahesh Kumar. Having held that the State is not entitled to consider the family pension and other terminal benefits received by the dependants of the deceased employee, the High Court has held that the income slab which was prescribed by the Finance Department did not constitute an amendment of the Policy and that, consequently, it must be disregarded in deciding upon cases of compassionate appointment."

After considering the entire matter, the Hon'ble Apex Court

held that the direction issued by the High Court to the

.

respondents/State to desist from taking into account the family

pension and other terminal benefits was unsustainable in law and

was accordingly set aside, relevant paragraphs whereof read as

under:-

"33. For these reasons, we have come to the conclusion that the High Court was not justified, based on the decision in Govind Prakash Verma (supra) in issuing a

direction to the State to act in a manner contrary to the

express terms of the Scheme which require that the family pension received by the dependants of the deceased employee be taken into account.

34 to 37. ....................

38. In the circumstances, we allow the appeal in the

following terms:

38.1. ........................

38.2. The direction issued by the High Court to the appellants to desist from taking into account the family

pension and other terminal benefits is unsustainable in law and is accordingly set aside.

.................................."

In view of clear pronouncement of the Hon'ble Apex Court,

the family pension and other terminal benefits are required to be

taken into account for ascertaining the income of the family for

deciding whether case for appointment on compassionate ground

actually meets the financial/income criteria so fixed by the

.

Government in the applicable policy or not. No other point was

urged. Consequently, no interference is called for in the impugned

order dated 19.03.2015. The petition is dismissed accordingly.

Pending miscellaneous application(s), if any, shall also stand

disposed of.

                      r        to       Jyotsna Rewal Dua
                                             Judge

     August 31, 2021 (rohit)