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2012 DIGILAW 469 (HP)

Sunil Kumar v. State Of Himachal Pradesh

2012-08-29

RAJIV SHARMA

body2012
JUDGMENT : Rajiv Sharma, J. Petitioner's father was employed with the respondent department as Multi Purpose Worker. He died on 17th September, 1991. Petitioner's mother submitted an application somewhere in the year 1996 vide Annexure P-1, seeking appointment to petitioner on compassionate basis after his attaining the age of majority. Petitioner at the time of submission of application was five years old. The case was forwarded by the Block Medical Officer to Chief Medical Officer, District Solan on 20.02.1996. Thereafter, the Chief Medical Officer, Solan, District Solan forwarded the original application made by the mother of the petitioner to the Director of Health Services on 02.05.1996. The Director, Health Services, Himachal Pradesh informed the Chief Medical Officer vide letter dated 15th May, 1996 that since the petitioner was minor at that time, the matter regarding giving him appointment on compassionate basis may be presented again after he attains the age of majority. Petitioner passed his Senior Secondary examination in the month of October, 2008. He submitted an application for considering his candidature for appointment on compassionate basis. The application was forwarded by the Block Medical Officer, CHC Syri, District Solan, H.P. to the Chief Medical Officer, Solan, District Solan, H.P. on 20.12.2008. The Chief Medical Officer, Solan, District at Solan forwarded the case of the petitioner to the Director of Health Services, Himachal Pradesh, Shimla-9 on 09.01.2009. The Director raised certain objections. The same were removed. Thereafter, the Chief Medical Officer again forwarded the case of the petitioner to the Director of Health Services, Himachal Pradesh, Shimla-9 on 03.03.2009. The Director, Health Services, Himachal Pradesh sent a proposal to the Principal Secretary, Health, Himachal Pradesh on 15.05.2009, seeking permission to give compassionate appointment to the petitioner to the post of Clerk according to his educational qualification. The matter was not decided by the State Government. Petitioner sought information, which was supplied to him vide Annexure P-9. According to the contents of Annexure P-9, the matter was still under consideration of the State Government. 2. The respondent-State has filed the reply. According to the reply filed by the State, the case of the petitioner is not covered under the new policy. According to the respondent-State, the priority has to be given for appointment on compassionate basis to widows or orphans. It is also stated in the reply that the case is barred by delay and laches. 3. According to the reply filed by the State, the case of the petitioner is not covered under the new policy. According to the respondent-State, the priority has to be given for appointment on compassionate basis to widows or orphans. It is also stated in the reply that the case is barred by delay and laches. 3. I have heard the learned counsel for the parties and gone through the pleadings carefully. 4. Petitioner has lost his father on 17th September, 1991. The mother of the petitioner has made a representation in the month of August 1995 and vide Annexure P-1 in 1996, seeking appointment for her son after attaining the age of majority. The Chief Medical Officer was informed by the Director, Health Services, Himachal Pradesh on 15.05.1996 that the case of the petitioner would be considered after he attains the age of majority. It is in these circumstances, the petitioner has submitted an application after passing Senior Secondary examination in October, 2008, seeking appointment on compassionate basis to the Block Medical Officer, CHC Syri, District Solan, H.P. The Block Medical Officer, CHC Syri, District Solan, H.P. has forwarded the same to the Chief Medical Officer, Solan, District Solan, H.P. on 20.12.2008. The Chief Medical Officer, Solan, District at Solan forwarded the case of the petitioner to the Director, Health Services, Himachal Pradesh, Shimla on 09.01.2009. The Director, Health Services sought permission of the State Government to fill up the post on compassionate basis on 15.05.2009. 5. Petitioner's father died on 17.09.1991. The State Government has issued an office memorandum for making appointment of sons/daughters/near relations of Government servants, who died in harness, leaving his family in immediate need of assistance on 18.01.1990. According to paragraph No. 8 of the memorandum, the requests for grant of employment assistance should be received from the department concerned within three years from the death of the Government servant and in case of minor, the time limit for receipt of request for employment assistance in department concerned would be attainment of age of 21 years by the eldest son/un-married daughter. Thus, the case of the petitioner is not barred by delay and laches. The petitioner has approached the authorities within time. The case of the petitioner is required to be considered as per the norms laid down in the office memorandum dated 18.01.1990 and not as per latest policy. Thus, the case of the petitioner is not barred by delay and laches. The petitioner has approached the authorities within time. The case of the petitioner is required to be considered as per the norms laid down in the office memorandum dated 18.01.1990 and not as per latest policy. The date of death is relevant for determining the case for compassionate appointment. 6. The Full Bench of Punjab and Haryana High Court in Krishna Kumari v. State of Haryana and others 2012 (4) SLR 481 (Pb. & Hry.) 481 has held that the date of death of an employee is an important factor to be taken into consideration and the policy applicable on the date of death needs to be invoked to provide immediate relief. The Full Bench has held as under: "..In view of this clear enunciation of law we cannot but come to the conclusion that rules applicable on the date of death/incapacitation of an employee need to be followed. Neeless to observe it is upto the authority to consider the application without inordinate delay and take a decision thereon. In the eventuality application remains pending for considerable period and some other policy comes into operation, no fault can be found on the part of the employee. This appears to be the principle recognised by the apex court in its recent judgment in Bhawani Prasad Sonkar's case. As held therein, application for compassionate employment has to be preferred without undue delay and has to be considered within a reasonable period of time as compassionate appointment is to meet the sudden crisis on account of death or invalidation of the bread winner of the family. We, thus, come to the conclusion that in case an application is made by the dependant belatedly or is considered after inordinate delay, basic requirement of meeting the immediate crisis becomes redundant. Since the objective of the policy is to rescue the family from sudden event plunging it into penury, consideration of application after number of years would be beyond the principles accepted by the apex court in its various decisions. In such circumstances, it would be difficult to accept the exception to the general rule of employment as envisaged by Articles 14 and 16 of the Constitution of India. We answer the reference accordingly." 7. Mr. In such circumstances, it would be difficult to accept the exception to the general rule of employment as envisaged by Articles 14 and 16 of the Constitution of India. We answer the reference accordingly." 7. Mr. Vikas Rathore, learned Deputy Advocate General has also argued that the case of the petitioner could only be considered for Class-IV post and not for Clerical post, as mentioned in Annexure P-8, dated 15.05.2009. 8. Sub-paragraph (b) of paragraph No. 10 of office memorandum, dated 18.01.1990, reads thus: (b) It is not essential that a son or a daughter or widow of a deceased Class-IV employee should be considered for employment against Class-IV post only but can be appointed against the lowest rung of class-III post as indicated in para 4 above for which he is educationally qualified, provided a vacancy in Class-III is available." 9. Thus, even as per office memorandum dated 18.01.1990, the petitioner can be considered for the post of Clerk, taking into consideration his educational qualification. His father was also working as Multi Purpose Worker. Petitioner's mother has been apprised by the Director, Health Services, Himachal Pradesh on 15.05.1996 that the case of her son would be considered after he attains the age of majority. It is in these circumstances, the case has been forwarded by the Block Medical Officer, CHC Syri, District Solan, H.P. to the Chief Medical Officer, Solan, District Solan, H.P. on 20.12.2008. The Chief Medical Officer, Solan, District at Solan forwarded the case of the petitioner to the Director of Health Services, Himachal Pradesh, Shimla-9 on 09.01.2009. Thereafter, the Director, Health Services, Himachal Pradesh wrote a letter to the Principal Secretary (Health), Himachal Pradesh on 15.05.2009, seeking permission to fill up the post of Clerk on compassionate basis. 10. Their Lordships of the Hon'ble Supreme Court in a recent judgment pertaining to compassionate appointment rendered in Shreejith L. v. Deputy Director (Education) Kerala & Others. JT 2012 (6) SC 94 have held as under: "11. A conjoint reading of the Statutory Rules and para 19 of the Government Order extracted above would show that the compassionate appointment scheme itself permits applications to be made within two years from the date of death of the Government servant. In the case of minors the permissible period for making applications is three years from the date the minor attains majority. In the case of minors the permissible period for making applications is three years from the date the minor attains majority. It is not in dispute that the application for appointment as a Lower Grade Sanskrit Teacher was made by the respondent on 7th February, 2005 i.e. within three years of his attaining majority. Such being the position under the terms of the scheme, the validity or wisdom whereof is not under challenge before us, it is manifest that the scheme not only permitted making of an application but when read in conjunction with Rule 9A entitled respondent No. 5 to seek such an appointment subject to his fulfilling other requirements stipulated in the scheme. It is nobody's case that respondent No. 5 did not satisfy other conditions stipulated in the Government Order nor was his request for appointment as Junior Grade Sanskrit Teacher rejected on any such ground. That being so, the High Court was justified in holding that the prayer for appointment made to respondent No. 5 should have been allowed." In this case also, the compassionate appointment scheme itself permits applications to be made within two years from the death of the Government servant and in case of minors, the permissible period for making applications is three years from the date the minor attains the age of majority. 11. The respondents could not wriggle out of the promise held to the petitioner's mother in the year 1996 by the Director, Health Services, Shimla, whereby she was informed that her son's case would be considered for compassionate appointment after his attaining the age of majority. 12. Accordingly, in view of the observations and discussions made here in above, the writ petition is allowed. The respondents are directed to consider the case of the petitioner for appointment to the post of Clerk on compassionate basis as per office memorandum dated 18.01.1990, within a period of eight weeks. The pending application(s), if any, also stands disposed of. No costs.