Himachal Pradesh High Court
2 vs H.P. And Others on 21 October, 2021
Bench: Mohammad Rafiq, Sabina
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 21st DAY OF OCTOBER, 2021
.
BEFORE
HON'BLE MR. JUSTICE MOHAMMAD RAFIQ,
CHIEF JUSTICE
&
HON'BLE MRS. JUSTICE SABINA
LETTERS PATENT APPEAL No.123 of 2013
Between:-
1.
2.
OF H.P., SHIMLA.
r to
STATE OF H.P. THROUGH ITS
SECRETARY (PW) TO THE GOVT.
THE EXECUTIVE ENGINEER,
HP PWD, JUBBAL DIVISION,
DISTT. SHIMLA, H.P. ......APPELLANTS
(BY SH. ASHOK SHARMA,
ADVOCATE GENERAL WITH
SH. VIKAS RATHORE &
MS. RITTA GOSWAMI, ADDITIONAL
ADVOCATES GENERAL AND
MS. SEEMA SHARMA,
DEPUTY ADVOCATE GENERAL)
AND
1. UDAY SINGH,
SON OF LT. SH. GARIB DASS,
RESIDENT OF VILLAGE &
P.O. KUNGAL-BALTI, SUB-TEHSIL
NANKHARI, DISTT. SHIMLA, H.P. ......RESPONDENT
2. SH. BHUPINDER SINGH,
S/O LATE SH. NARENDER SINGH,
HP PWD, 12TH CIRCLE NAHAN,
DISTT. SIRMAUR, H.P.
......PROFORMA-RESPONDENT
(SH. PARVEEN CHAUHAN,
ADVOCATE, FOR R-1)
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This appeal coming on for order this day, Hon'ble
Mr. Justice Mohammad Rafiq, delivered the following:
.
JUDGMENT
Service on respondent No.2 is dispensed with
considering that he is only a proforma-respondent and also was a
co-respondent with the appellant-State in the writ petition.
2. The learned Single Judge in the impugned order has
relied a judgment rendered by a co-ordinate Bench of this Court in
CWP(T) No.4504 of 2009, titled as Ramesh Chand versus State of
H.P. and others, and held that in the present case the father of
respondent No.1-writ petitioner expired on 16th July, 2001. The writ
petitioner undisputedly stood employed on contract basis on
10th October, 2007. His request for compassionate appointment
was kept pending in different offices of the respondent/State and as
such, the same ought to have been considered in terms of the old
policy as it existed on 16th July, 2001 because the delay in the
decision is not attributable to the writ petitioner. On that note, the
learned Single Judge held that directions issued in relied judgment,
Ramesh Chand (supra), shall mutatis mutandis apply to the present
case and the State Government was directed to consider the case of
the petitioner for regularization, particularly when the respondents
themselves have regularized the services of private respondent on
the same analogy.
.
3. Ms. Ritta Goswami, learned Additional Advocate
General, has cited before us a copy of the order dated 06.09.2021,
passed by the Hon'ble Supreme Court in Petition(s) for Special
Leave to Appeal (C) No(s). 19252/2018, titled as Seema Kausar
Versus The State of Maharashtra & Ors., wherein the Hon'ble
Supreme Court has held that the policy, which was prevailing at the
time when the deceased employee died and the application for
compassionate appointment was made, is only required to be
considered. The Hon'ble Supreme Court dismissed the SLP
up-holding such view taken by the High Court.
4. In the present case, even if the ratio of the aforesaid
order of the Hon'ble Supreme Court is applied, the writ petition has
rightly been disposed of in view of the peculiar facts contained
therein because after the death of father of respondent No.1/writ
petitioner on 16th July, 2001, he was engaged on contract basis on
10th October, 2007, whereas the writ petitioner has filed application
for compassionate appointment on 27th October, 2001. It is for this
reason that the learned Single Judge has recorded a finding that
delay in taking decision to appoint the writ petitioner on
compassionate ground is not attributable to the writ petitioner.
Obviously, the respondent/State was under obligation to take a
decision on the application of respondent No.1-writ petitioner
.
expeditiously.
5. It is not in dispute that the judgment of Ramesh Chand
(supra), relied upon by the learned Single Judge, was assailed
before the Division Bench by the respondent/State in LPA No.435 of
2012. The stand of the State Government in that appeal was that
similar treatment has been meted out to respondent-Ramesh Chand
as he has been engaged on daily wage basis as Beldar. In the
present case, the argument was made that since Tota Ram, father
of petitioner, Ramesh Chand, was working on work-charge
establishment of the respondent-department as Beldar at the time of
his death. Therefore, merely because the petitioner acquired
matriculation as qualification subsequently, that would not entitle him
to be appointed as Clerk when his case is liable to be considered in
terms of the prevailing policy at the time of death of his father. The
order of the learned Single Judge, therefore, was modified to the
extent that instead of appointing the petitioner Ramesh Chand on
the post of Clerk, a direction was issued to appoint him as Class-IV
employee. In the present case also, compassionate appointment
has been ordered to be regularized on Class-IV post.
6. In view of the above and that the judgment of Ramesh
Chand (supra), having attained finality, we do not find any infirmity
.
in the order dated 18.04.2012, passed by the learned Single Judge.
The appeal, being devoid of merit, is dismissed.
( Mohammad Rafiq )
Chief Justice
October 21, 2021
r to ( Sabina )
Judge
( Himalvi/Kamlesh )
