JUDGMENT Dharam Chand Chaudhary, Judge. By means of the present writ petition, the following reliefs have been claimed: “1. That the respondents may be directed to favourably consider the case of the petitioner for the appointment as clerk on compassionate ground with time bound schedule. 2. That the respondents may be directed to appoint petitioner on compassionate ground.” 2. The complaint is that the father of petitioner late Shri Lashkari Ram died in harness on 26.12.2003 while working as Drawing Master, however, irrespective of his having made an application for employment on compassionate ground under the policy framed by the 1st respondent, he has not yet been given the appointment irrespective of the direction of erstwhile Administrative Tribunal dated August 7, 2007 in O.A. (M) No. 145/2007, Annexure P-4. 3. It is seen from the reply to the writ petition filed on behalf of the respondents that virtually there is no denial to the factual position, such as, father of the petitioner having died in harness while working as Drawing Master on regular basis and the petitioner having moved an application for seeking employment on compassionate ground and there being a direction of the erstwhile Administrative Tribunal to them to consider the application of the petitioner for compassionate appointment and communicate the decision so taken to him within eight weeks. 4. The only plea in reply to the writ petition raised by the respondents in their defence, reads as under: “That the advisory department advised that as per prevailing policy, cases are being decided on the basis of indigency as well as economic status of the family of the deceased Government employee. Compassionate employment is not a matter of right and at present only cases of widow’s and where both parents of applicant are not alive are being considered. DOP’s instructions dated 18.1.990 states that compassionate employment is not a legal right of a kith and kin of deceased employee. In this particular cases, one parent i.e. Smt. Geeta Devi, mother of the applicant is still alive and is getting pension of Rs. 16,918 P.M. All such cases are not being considered for compassionate employment at this stage. About 1400 such cases have still not been approved. This case also does not meet the present policy of providing compassionate employment. Apex Court in certain judgments has held that compassionate employment to the legal heirs of deceased Govt. 16,918 P.M. All such cases are not being considered for compassionate employment at this stage. About 1400 such cases have still not been approved. This case also does not meet the present policy of providing compassionate employment. Apex Court in certain judgments has held that compassionate employment to the legal heirs of deceased Govt. employee is not a right. Hence, advisory department is unable to agree to provide compassionate employment at this stage, especially when there are other similarly situated applicants, where the parents had died earlier & who may be equally deserving or more deserving. Thus this particular case could not be approved for the aforesaid reasons.” 5. It is seen that the only reason for non-consideration of the application for appointment on compassionate ground submitted by the petitioner is that his mother Smt. Geeta Devi is alive and drawing a sum of Rs. 16,918/- per month by way of family pension and as such the family of the petitioner is stated to be not residing in indigent circumstances. Also that as per the existing policy, either widow of a deceased Government servant or a pension who is an orphan are being considered for appointment on compassionate ground. Since the mother of the petitioner is stated to be alive, therefore, his case has not been recommended for appointment on compassionate ground by the Advisory Committee. 6. It is in this backdrop, I have heard learned counsel on both sides and also gone through the record. 7. Admittedly, the father of the petitioner late Shri Lashkari Ram was working as Drawing Master in the Department of Education on regular basis. There is no quarrel as to the fact that he died in harness on 26.12.2003. The petitioner submitted application alongwith indigent circumstances certificate, Annexure P-3(Colly.). This certificate has been issued by the competent authority i.e. the Sub Divisional Magistrate, Sarkaghat, District Mandi, certifying therein that the annual income of the family of the deceased Government servant is Rs.59,900/-including income from pension i.e. Rs.4700/-per month. This document further certifies that after the death of the deceased Government servant, out of four members, no-one from his family is in Government/Semi-Government service. This document further certifies that after the death of the deceased Government servant, out of four members, no-one from his family is in Government/Semi-Government service. Annexure P-4 to the writ petition is the order whereby the erstwhile Administrative Tribunal had directed the respondents to consider and finally dispose of the application of the applicant, submitted for appointment on compassionate ground and to communicate the decision to him within eight weeks from the date of the order i.e. 7.8.2007. Admittedly, the 2nd respondent had forwarded the application of the petitioner to the 1st respondent for taking appropriate action, as is apparent from the perusal of Annexure P-5. 8. In this backdrop, the stand taken by the respondents in para 3 of the reply, reproduced supra, is a moot question to be considered in this writ petition. 9. On analysis of the pleadings as well as arguments addressed on both sides and the case law cited during the course of arguments, I am of the considered opinion that stand so taken by the respondents is neither legally not factually sustainable and as such cannot be believed to be true by any stretch of imagination. It is well settled at this stage that income of a family from retiral benefits including the family pension which would have otherwise been paid to the deceased employee on retirement or to his dependants in the event of his early death cannot be taken into consideration while considering the application for appointment on compassionate ground. It has been held so by the Hon’ble Apex Court in Govind Prakash Verma versus Life Insurance Corporation of India and others (2005) 10 Supreme Court Cases 289: 6. In our view, it was wholly irrelevant for the departmental authorities and the learned Single Judge to take into consideration the amount which was being paid as family pension to the widow of the deceased (which amount, according to the appellant, has now been reduced to half) and other amounts paid on account of terminal benefits under the Rules. The scheme of compassionate appointment is over and above whatever is admissible to the legal representatives of the deceased as benefits of service which one gets on the death of the employee. Therefore, compassionate appointment cannot be refused on the ground that any member of the family received the amounts admissible under the Rules. 10. The scheme of compassionate appointment is over and above whatever is admissible to the legal representatives of the deceased as benefits of service which one gets on the death of the employee. Therefore, compassionate appointment cannot be refused on the ground that any member of the family received the amounts admissible under the Rules. 10. Similar is the ratio of the judgment again that of the Hon’ble Apex Court in Smt. Phoolwati versus Union of India and others, AIR 1991 Supreme Court 469 which reads as follows: 3. This Court issued a notice on 23-10-90 and also directed that pending decision of this application she be permitted to continue her stay with her sons in the said quarter. The State has filed an affidavit stating that the appellant received an amount of Rs. 21,700/-as DCR Gratuity. She also received CGE Insurance amounting to Rs. 10,926/- and GPF amounting to Rs. 1717/- of her deceased husband. She is also getting a Family Pension of Rs. 390/- per month, and as such, she cannot continue to stay in the quarter. This Court repeatedly requested the learned counsel appearing on behalf of Union of India to consider the provisions that when an employee dies in harness, one of his legal representatives will be provided with an employment on compassionate ground. In spite of time being given repeatedly by this Court to consider this aspect of the matter and to take necessary instructions from Union of India, the counsel states before this Court that he has been instructed by the Government of India that it is not possible to provide her second son with an employment in the said press where her husband was previously employed. In a similar case, Smt. Sushma Gosain v. Union of India, AIR 1989 SC 1976 this Court has held as under (at page 1977 of AIR):-“It can be stated unequivocally that in all claims for appointment on compassionate grounds, there should not be any delay in appointment. The purpose of providing appointment on compassionate ground is to mitigate the hardship due to death of the bread earner in the family. Such appointment should, therefore, be provided immediately to redeem the family in distress. It is improper to keep such case pending for years. The purpose of providing appointment on compassionate ground is to mitigate the hardship due to death of the bread earner in the family. Such appointment should, therefore, be provided immediately to redeem the family in distress. It is improper to keep such case pending for years. If there is no suitable post for appointment supernumerary post should be created to accommodate the applicant.” After the observations, hereinabove, the Apex Court has concluded as under: Accordingly, we direct Union of India to take immediate steps for employing the second son of the appellant in a suitable post commensurate with his educational qualification within a period of one month from the date of this order. The appellant shall be permitted to stay in the said quarter where she is at present residing with the members of her family. The appellant will, however, withdraw her application filed before the Tribunal. The appeal is thus allowed. There will be no orders as to costs. 11. A Coordinate Bench of this Court in Sanjay Kumar versus State Bank of India and others 2007 (2) Shimla Law Cases 449, having similar facts and circumstances has held as under: 8. The upshot of the above discussion is that the case of the petitioner for compassionate appointment has been rejected in a most arbitrary manner. The Annexure R-2, dated 12.10.2000 is not a speaking order. The reasons assigned in the reply are not sufficient to deny the petitioner’s compassionate appointment after the death of his father in the year 1999. The Bank has wrongly taken into consideration while refusing the compassionate appointment to the petitioner the retiral benefits available to the mother of the petitioner as well as the amount deposited by way of Special Term Deposit Receipt and meager pension of Rs, 3,064/- 12. The legal position discussed hereinabove, leave no manner of doubt qua the view of the matter hereinabove taken by this Court while discarding the plea raised by the respondents in their defence. 13. In view of the rejoinder to the reply, I am of the considered opinion that there cannot be any other better case of an arbitrary exercise of power and discriminatory treatment. The three instances, which read as follows, quoted in the rejoinder make it crystal clear that appointment on compassionate ground was given by the respondents to the similarly situated persons: “That petitioner humbly submits that one Sh. The three instances, which read as follows, quoted in the rejoinder make it crystal clear that appointment on compassionate ground was given by the respondents to the similarly situated persons: “That petitioner humbly submits that one Sh. Rajender Kumar serving in I.P.H Department of the respondent State, died on 1.1.2004. His son Sh. Sandeep Kumar r/o village Chaswal Sub Tehsil Dharampur Tehsil Sarkaghat District Mandi was appointed on compassionate grounds on 13.12.2004. Smt. Bimla Devi wd/o Sh. Rajender Kumar PPO no. 19432 is presently getting monthly pension of Rs. 16,426/-. The document is brought on record as annexure P-6. Similarly Sh. Veer Singh r/o V.P.O. Sari Tehsil Sarkaghat District Mandi H.P serving in the Police Department of the respondent State died on 27.3.2001. His son Sunil Kumar was appointed on compassionate basis in 2007. Smt. Krishna Devi wd/o Sh. Veer Singh is presently getting monthly pension of Rs. 6215 (commuted). Her pension statement with PPO number 14650 is enclosed herewith as annexure P-7. Sh. Krishan Chand while serving in I.P.H. Department died on 14.7.2004. His son Sh. Vikant r/o Village Tarembala P.O. Logni Sub Tehsil Dharampur Tehsil Sarkaghat District Mandi was appointed on compassionate grounds in 2005. Smt. Sushila Devi wd/o Sh. Krishan Chand is presently pension was appointed on compassionate grounds in 2005. The examples quoted above are only a few which are in the knowledge of the petitioner pertaining to the area from where he belongs. There would be many more such like instances. The reasoning given in the reply is thus not justified. 14. It is significant to note that the father of the petitioner had died on 26.12.2003. He seems to have submitted an application for appointment as Clerk on compassionate ground in the year 2007 together with requisite documents and after compliance of all codal formalities, may be due to he passed out B.A. examinations in December, 2005. Annexure P-2 (Colly.) Policy which has been taken into consideration is admittedly applicable from 25.9.2010. In the policy, prior to it, no condition such as the preference in the matter of appointment on compassionate ground has either to be given to widow or an orphan was there. Annexure P-2 (Colly.) Policy which has been taken into consideration is admittedly applicable from 25.9.2010. In the policy, prior to it, no condition such as the preference in the matter of appointment on compassionate ground has either to be given to widow or an orphan was there. Learned counsel for the petitioner is thus absolutely justified in pointing out that the matter should have not been delayed and rather considered as per the policy prevalent in the year 2007 in accordance with the directions of the erstwhile Administrative Tribunal. Had it been so, the petitioner would have been in the Government job by this time and not faced with such a situation. I am thus clear in my mind that policy decision, if any, to provide employment on compassionate ground only to widow or an orphan taken by the respondents is not applicable in this case. Otherwise also in a case, like the present one where the widow Smt. Geeta Devi, the mother of the petitioner has not applied for appointment on compassionate ground, there cannot be any nexus between imposition of such a condition and the employment to be given on compassionate ground. The present is thus a case of sheer discrimination and arbitrariness on the part of the respondents. Their action in not providing the employment to the petitioner for such a long time, besides being contrary to all canon of natural justice is highly illegal and arbitrary also. The present is thus a case warranting issuance of a direction to the respondents to re-consider the case of the petitioner in the light of the observations hereinabove and the law laid down by the Apex Court. 15. In view of all the reasons hereinabove, this petition succeeds and the same is accordingly allowed together with costs quantified at Rs. 5,000/-. The respondents are directed to re-consider the case of the petitioner in the light of the law laid down by the Hon’ble Apex Court in the cases, cited supra, within a period of two months from the date of production of a certified copy of this judgment by the petitioner before the 1st respondent and appoint him on compassionate ground accordingly. Pending application(s), if any, shall also stand disposed of.