Himachal Pradesh High Court
Between vs Scheme Really Does Not Apply In ... on 16 December, 2021
Bench: Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 16th DAY OF DECEMBER, 2021
.
BEFORE
HON'BLE MS. JUSTICE JYOTSNA REWAL DUA
CIVIL WRIT PETITION (ORIGINAL APPLICATION)
No.6892 OF 2019
Between:-
SH.RAMESH KUMAR
SON OF LATE SHRI BABU RAM,
RESIDENT OF VILLAGE GHIAL,
P.O. NAMHOL, TEHSIL SADAR,
DISTRICT BILASPUR, H.P.
r .....PETITIONER
(BY SH. ONKAR JAIRATH AND SH. PANKAJ THAKUR,
ADVOCATES)
AND
1. STATE OF HIMACHAL PRADESH
THROUGH ADDITIONAL CHIEF
SECRETARY (PW) TO THE
GOVERNMENT OF HIMACHAL PRADESH.
2. THE ENGINEER-IN-CHIEF,
HPPWD, NIGAM VIHAR, SHIMLA-2
3. THE CHIEF ENGINEER (HZ)
HPPWD, HAMIRPUR,
HIMACHAL PRADESH.
4. THE SUPERINTENDING ENGINEER,
10th CIRCLE HPPWD,
BILASPUR, HIMACHAL PRADESH.
5. THE EXECUTIVE ENGINEER,
DIVISION NO.II, HPPWD,
BILASPUR, HIMACHAL PRADESH.
6. THE ASSISTANT ENGINEER
HPPWD, SUB DIVISION NAMHOL,
BILASPUR, HIMACHAL PRADESH.
.....RESPONDENTS
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2
(SH. ASHWANI K. SHARMA, ADDITIONAL ADVOCATE
GENERAL WITH SH. VIKRANT CHANDEL AND SH.
KUNAL THAKUR, DEPUTY ADVOCATES GENERAL.)
_________________________________________________________________
.
This petition coming on for orders this day, the Court
passed the following:
ORDER
Petitioner seeks a direction to the respondents-
department to appoint him on compassionate ground.
2 The case set up by the petitioner is that:-
2(i) Father of the petitioner was working as Beldar on
regular basis with the respondents-department. He died in harness
on 27.02.2011, leaving behind family of four members consisting of
his wife and three sons. None of his family members was in
government/semi-government job. The petitioner is a matriculate.
On 05.08.2013, he represented to the respondents-department to
appoint him on compassionate ground as Class-IV employee.
2(ii) At the time of death of petitioner's father, income of the
entire family, including the pension was, Rs.1,24,371/-. Petitioner's
case for compassionate appointment remained pending with the
respondents-department. On 30.01.2016, respondent No.3 returned
the employment assistance case of the petitioner to respondent
No.4 with the following observations:-
" 1. Reasons for delay after lapse of more than three
years have not been mentioned in the Proforma-III
column-1(d).
2. The Non employment Certificates attached with the
case file at page 10,30 and 31 have not in proper
format and also been expired, as the same is valid
for one year from the date of issue.
3. The Income Certificate attached with the case file at
page-11 has been expired, as the same is valid for
.
one year from the date of issue."
3. The grievance of the petitioner is that he had applied
for appointment on compassionate ground alongwith requisite
documents on 05.08.2013 to the respondents-department.
Communication dated 30.01.2016 reflected that his case was
forwarded by respondent No.4 to respondent No.3 only on
30.01.2016. Therefore, lapse, if any, as observed in the above
extracted observations was not on his part, but on the part of the
respondents themselves.
In their reply filed to the writ petition, the
respondents-department opposed the writ petition mainly on the
ground that annual income of the family of deceased exceeded the
ceiling limit fixed by the State. That in the year 2011, the prescribed
individual ceiling limit of income was Rs.31,250/- per annum. That
in the case of the petitioner, there were three family members, so, in
his case, ceiling limit of income would be Rs.93,750/- per annum.
Since the family income of the petitioner was Rs.1,24,371/- per
annum, which exceeded the annual ceiling limit of Rs.93,750/- per
annum for three members' family, his case could not be considered
for appointment on compassionate ground.
4. I have heard learned counsel for the petitioner and
learned Deputy Advocate General for the respondents-department.
4(i). The stand taken by the respondents in their reply is
factually incorrect. Petitioner's father died on 27.02.2011. He was
survived by his family of four members i.e. his wife and three sons.
.
The income ceiling limit for a family of four members would have
been Rs.31250 x 4=Rs.1,25,000/-. The family income of the
petitioner fell within the ceiling limit. Later, one of the brothers of
the petitioner i.e. Shri Sanju died on 18.09.2014. However, he was
alive at the time when his father died and also at the time of
petitioner's applying for the post in question. It appears from the
reply that respondents-department have taken income limit as it
existed in the year 2011 and number of family members as they
existed in the year 2014, which is not permissible. The grounds
taken in the reply w.r.t. ineligibility of petitioner vis-à-vis income
criteria do not seem justifiable.
4(ii). The grounds for rejection as given by the respondents
are not in consonance with law laid down by the Hon'ble Apex
Court. It has been well settled by catena of judgments that cases for
appointment on compassionate grounds are to be considered in
terms of Policy prevalent on the date of death of the deceased
employee and not on the basis of Policy in vogue at the time of
consideration of the case.
It is no longer res-integra that the claim for
compassionate appointment has to be decided only on the basis of
relevant scheme, which was prevalent on the date in question.
Subsequent scheme cannot be looked into for the purpose. It will be
appropriate in this regard to refer to (2020) 2 SCC 729 titled
Indian Bank and Others Vs. Promila and another, which in turn
relied upon (2015) 7 SCC 412, titled Canara Bank Vs. M.Mahesh
.
Kumar. Relevant paragraphs of the same are extracted as under:-
"18. The question of applicability of any subsequent
Scheme really does not apply in view of the
judgment of this Court in Canara Bank (supra) .
Thus, it would not be appropriate to examine the
case of the respondents in the context of subsequent
Schemes, but only in the context of the Scheme of
4.4.1979, the terms of which continued to be
applicable even as per the new Scheme of
5.11.1985, i.e. the Scheme applicable to the
respondents. There is no provision in this Scheme for
any ex gratia payment. The option of compassionate
appointment was available only if the full amount of
gratuity was not taken, something which was done.
Thus, having taken the full amount of gratuity, the
option of compassionate appointment really was not
available to the respondents.
19. We may also notice that though the subsequent
Schemes were not applicable, even if benefit was
sought to be given of those Schemes, initial non-
disclosure and subsequent disclosure by respondent
No.1, of her employment and her emoluments would
disentitle her under those Schemes, too. Thus, when
the appellant was calling upon the respondents to
apply under the subsequent Schemes, that could
have been beneficial to the respondents only if they
were entitled to any of the benefits under that
Scheme. That could not happen because the
benchmark provided in those subsequent Schemes
took the emoluments of respondents beyond the
prescribed limit, so as to disentitle them from both,
compassionate employment and ex gratia payment.
20. We have to keep in mind the basic principles
applicable to the cases of compassionate
employment i.e. succour being provided at the stage
.
of unfortunate demise, coupled with compassionate
employment not being an alternate method of public
employment. If these factors are kept in mind, it
would be noticed that the respondents had the
wherewithal at the relevant stage of time, as per the
norms, to deal with the unfortunate situation which
they were faced with. Thus, looked under any
Schemes, the respondents cannot claim benefit,
through, as clarified aforesaid, it is only the relevant
Scheme prevalent on the date of demise of the
employee, which could have been considered to be
applicable, in view of the judgment of this Court in
Canara Bank. It is not for the Courts to substitute a
Scheme or add or subtract from the terms thereof in
judicial review, as has been recently emphasised by
this Court in State of H.P. Vs. Parkash Chand."
In a recent judgment rendered by Hon'ble Apex Court
on 18.11.2021 in Civil Appeal No.6903/2021, titled as The State of
Madhya Pradesh & Ors Vs. Ashish Awasthi it was reiterated that
the Policy prevalent at the time of death of the deceased employee
only is required to be considered and not the subsequent policy.
Relevant para from the judgment is extracted as under:-
"4.1 ................it is observed and held that claim for
compassionate appointment must be decided only on
the basis of relevant scheme prevalent on date of
demise of the employee and subsequent scheme
cannot be looked into. Similar view has been taken by
this Court in the case of State of Madhya Pradesh and
Ors. Vs. Amit Shrivas, (2020) 10 SCC 496.It is
required to be noted that in the case of Amit Shrivas
(supra) the very scheme applicable in the present case
was under consideration and it was held that the
scheme prevalent on the date of death of the deceased
.
employee is only to be considered. In that view of the
matter, the impugned judgment and order passed by
the Division Bench is unsustainable and deserves to
be quashed and set aside."
5. It is not disputed by the parties that the case of the
petitioner, seeking employment on compassionate ground has not
been decided by the respondents-department as yet. Accordingly, in
light of above observations it is deemed appropriate to dispose of
this petition by directing the respondents/competent authority to
decide the petitioner's case, seeking employment assistance on
compassionate ground within a period of six weeks from today in
accordance with law.
Accordingly, the instant petition stands disposed of in
the above terms, so also the pending miscellaneous application(s),
if any.
Jyotsna Rewal Dua
Judge
December16, 2021
R.Atal
