Tehsil Nahan vs State Of H.P
2022 Latest Caselaw 11722 HP

                                                        .
       IN   THE    HIGH   COURT OF HIMACHAL              PRADESH,





                             SHIMLA
                ON THE 29th DAY OF DECEMBER, 2021





                              BEFORE
               HON'BLE MR. JUSTICE AJAY MOHAN GOEL

            CIVIL WRIT PETITION (ORIGINAL APPLICATION)
            No.5159 of 2020





    Between:

    SH.SUNIL KUMAR S/O LATE
    RANBIR SINGH, R/O VILLAGE
    NEHAR,    P.O.
                   r CHALANA

    TEHSIL    NAHAN,    DISTT.
    SIRMOUR, H.P.
                                                      ....PETITIONER.

    (BY. MR. V.D.KHIDTTA, ADVOCATE )



    AND




    1. STATE OF HIMACHAL
    PRADESH THROUGH ITS





    SECRETARY (IPH) TO THE
    GOVT. OF H.P. SHIMLA­02.





    2. THE ENGINEER­IN­CHIEF,
    I & PH DEPARTMENT U.S.
    CLUB SHIMLA­1.

    3.    THE      EXECUTIVE
    ENGINEER, I & PH DIVISION
    NAHAN, DISTT. SIRMOUR,
    H.P.
                                                  ....RESPONDENTS.

    (BY. MR. ASHOK SHARMA, ADVOCATE GENERAL, WITH MR.
    ADARSH SHARMA, MR. SUMESH RAJ AND MR. SANJEEV
    SOOD, ADDITIONAL ADVOCATES GENERAL.)




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    Whether approved for reporting?1 Yes

          This petition coming on for hearing this day, the Court passed the following:





                 ORDER

By way of this petition, the petitioner has prayed for the

following reliefs:­

"(i) That the impugned order dated 30.08.2017 and

26.08.2017 Annexure A­10 (Colly) may kindly be

quashed and set aside.

(ii) That the respondents may kindly be directed to consider the case of the applicant for employment as

beldar on the basis of the policy/office memorandum dated 4th April 2008 (Annexure A­11) and be made covered as per the decision of this Hon'ble Tribunal

dated 22.11.2017 passed in OA No.7158/2016 titled

Harsh Sharma Vs. State of H.P.

(iii) That the respondents may kindly be directed to

consider the candidature of the applicant for appointment as beldar on compassionate ground from the date his juniors have been considered i.e. from the year 2010 with all consequential benefits.

(iv) That the respondent may kindly be directed to produce the entire record pertaining to the case of the applicant."

.

2. Brief facts necessary for the adjudication of this petition

are that the father of the petitioner, who was serving as a beldar

with the respondent­department, died in harness on 10.12.2009.

The petitioner thereafter applied to the respondent­department in

the month of March, 2010 vide Annexure A­2, for appointment on

compassionate basis. This application of the petitioner stands

rejected by the respondent­department vide Annexure A­10, i.e.

communication dated 30.08.2017, inter alia, on the ground that the

family of the deceased employee does not appears to be indigent and

as such cannot claim compassionate appointment.

3. Feeling aggrieved with the rejection, the petitioner has

filed the present petition.

4. I have heard learned counsel for the parties and have

gone through the pleadings including the Writ Petition and the reply

filed thereto.

5. The grievance of the petitioner is that despite the fact

that he applied for appointment on compassionate basis in the year

2010, yet his case has been rejected by the respondent­department

by applying the policy in vogue with regard to compassionate

appointments at the time of consideration of his case rather than

considering it by applying the policy which was in vogue at the time

.

when he had applied for such appointment. His further contention is

that rejection of his claim is by way of a non­speaking order as no

reasoning stands assigned therein as to why a family of deceased

beldar who happens to be a Class­IV employee, as per the

respondent­department, does not fall within the definition of an

indigent family. It is further the contention of the petitioner that

similarly situated persons have been granted appointment on

compassionate basis whereas the petitioner has been discriminated

arbitrarily by the respondent­department.

6. The stand of the respondent­department as is evident

from the reply, specially the preliminary submissions thereof is to

the effect that the assignment of the eligibility for compassionate

appointment lies with the employer and if the eligibility criteria is

altered by the employer, then none has a right to challenge the

same. It is further the stand of the respondent­department that vide

letter dated 21.12.2012, issued by the Finance Department, to the

Government of Himachal Pradesh, now there was a mandate that

clear cases wherein appointment on compassionate basis has been

sought, the same has to be examined in the light of the benefits

received by the family of the deceased on account of family pension,

ex facie grant, death gratuity, Employee Group Insurance Scheme,

.

Leave Encashment etc. As per the respondent­department, after

applying this criteria, it was found that as the family of the deceased

was not an indigent family, therefore, the case of the petitioner was

rejected, which rejection as per the respondent­department is strictly

in terms of the policy of the government.

7.

Learned Additional Advocate General during the course

of arguments has also drawn the attention of this Court to the stand

of the State which is to the effect that in terms of communication

dated 15.07.2010, whereby after the death of an employee, a widow

is entitled for employment on compassionate basis and their wards

are entitled for employment only in the case of death of both the

parents.

8. This Court is of the considered view that though the

appointment on compassionate basis is not the normal channel of

employment and is an exception to the normal channel of

employment, yet the assessment of a candidate as to whether he or

she is eligible for being considered for appointment on

compassionate basis, cannot be done arbitrarily by the department

concerned. This Court is using the term 'arbitrarily' with the purpose

that date of death of predecessor­in­interest of the applicant as also

the date when the applicant applies for the post in issue, has

.

relevance and needs to be taken into consideration by the

department at the time when the case of such an applicant is

considered and subsequent policy, if any, framed by the department

concerned, cannot act to the detriment of such an applicant. In

other words, it is the policy which is in vogue at the time when the

predecessor­in­interest of the applicant dies or the policy which is in

vogue at the time when he applies for the post, provided there is

some variance in them, which has to be taken into consideration by

the department at the time of consideration of the case of such a

person and not any subsequent policy which may be framed has to

be considered. This Court is making this observation in the light of

the judgment passed by the Hon'ble Supreme Court of India, in

Seema Kausar Versus the State of Maharashtra & Ors, SLP

No.19252/2018, in which Hon'ble Supreme Court has been pleased

to observe that it is a policy which was prevailing at the time when

the deceased employee died/the application was made, which only is

required to be considered.

9. In view of the observations made hereinabove, this

petition is allowed. Impugned order dated 26.08.2017 and

30.08.2017 Annexure A­10 (Colly) is quashed and set aside, with the

direction to the respondent­department to take a decision afresh on

.

the application of the petitioner for grant of compassionate

appointment on the basis of the policy which was in vogue at the

time of death of the deceased employee/submission of application.

The needful be done within a period of three months from today.

10. The petition is disposed of accordingly, so also pending

December 29, 2021

miscellaneous applications, if any.

                                                  (Ajay Mohan Goel)

        (rishi)                                         Judge