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2015 DIGILAW 1433 (HP)

Yudhvir Singh v. State of Himachal Pradesh

2015-10-08

MANSOOR AHMAD MIR, SURESHWAR THAKUR

body2015
JUDGMENT Mansoor Ahmad Mir 1. Issue notice. Mr. J.K. Verma, learned Deputy Advocate General, waives notice on behalf of the respondents. 2. The writ petitioner has landed in second round of litigation and has been dragged from pillar to post and post to pillar. 3. The bone of contention in this writ petition is whether the order, dated 07.09.2015, (Annexure P10) made by the respondents in terms of the directions of the Court in CWP No. 10257 of 2012 is illegal or correct? 4. Learned counsel for the parties stated at the Bar that this Court has already determined the issue in a batch of writ petitions, CWP No. 9094 of 2013, titled as Surinder Kumar versus State of H.P. and others, decided on 06.10.2015 and this writ petition be also disposed of in terms of the judgment (supra). Their statements are taken on record. 5. It appears that the father of the writ petitioner died while in service, the writ petitioner laid an application in terms of the policy framed in the year 1990 for appointment on compassionate grounds, which was rejected, constraining him to file CWP No. 10257 of 2012, which was disposed of on 02.04.2015 with a direction to the respondents to consider the case of the writ petitioner for appointment on compassionate ground afresh. 6. Thereafter, the respondents examined the case of the writ petitioner afresh and rejected the same vide order, dated 07.09.2015, on the ground that the case of the writ petitioner does not fall under the income ceiling fixed by the Government for providing employment on compassionate grounds, which is impugned in this writ petition. 7. This Court in Surinder Kumar's case (supra) has held that the family pension and other retiral benefits received by the family of the deceased employee are not to be included in the family income for denying the compassionate appointment. It has also been held that no income slab has been prescribed in the scheme of 1990. It is apt to reproduce relevant portion of the judgment herein: "Point No.(i) : Whether the amount of family pension and other retiral benefits, received by the family of the deceasedemployee, can be included in the family income for denying the compassionate appointment? 46. It is apt to reproduce relevant portion of the judgment herein: "Point No.(i) : Whether the amount of family pension and other retiral benefits, received by the family of the deceasedemployee, can be included in the family income for denying the compassionate appointment? 46. Clause 10(c) of the Policy mandates that while making appointment on compassionate ground, the competent Authority has to keep in mind the benefits received by the family on account of ad hoc exgratia grant, improved family pension and death gratuity. Therefore, we may place on record at the outset that no maximum income ceiling has been prescribed in the Policy. Only what has been prescribed is that the competent Authority has to keep in mind the benefits received by the family after the death of the employee, as detailed above. 47. The aim and object of granting compassionate appointment is to enable the family of the deceased employee to tide over the sudden financial crisis which the family has met on the death of its breadwinner. Though, appointment on compassionate ground is inimical to the right of equality guaranteed under the Constitution, however, at the same time, we cannot be oblivious to the fact that the concept of granting appointment on compassionate ground is an exception to the general rule, which concept has been evolved in the interest of justice, by way of Policy framed in this regard by the employer. The object sought to be achieved by making such an exception is to provide immediate assistance to the destitute family, which comes to the level of zero after the death of its breadearner. Thus, we are of the considered view that the amount of family pension and other retiral benefits cannot be equated with the employment assistance on compassionate ground. 54. In order to show that the maximum income ceiling was prescribed by the competent Authority, the respondents have relied upon the letter, dated 1st November, 2008, written by the Secretary (PW) to the Government of H.P., to the Engineer in Chief, HP PWD, referred to above, wherein it was mentioned that the income ceiling fixed by the Finance Department, for a family of four members, was Rs.1.00 lac. A perusal of this letter shows that it has been mentioned therein that “the Income Criteria fixed by the Finance Department takes into consideration maximum family income ceiling fixed by the finance Deptt. A perusal of this letter shows that it has been mentioned therein that “the Income Criteria fixed by the Finance Department takes into consideration maximum family income ceiling fixed by the finance Deptt. for a family of 4 members as Rs.1.00 lac.” It is nowhere mentioned in the said letter that the income ceiling was fixed by the competent Authority by making amendment in the Policy. Moreover, the said amendment, if any, has not been placed on record and has not seen the light of the day. Therefore, the letters/ communications issued by a Department to another Department cannot be said to be amendment in the Policy unless the said amendment has got the approval of the competent Authority i.e. the Cabinet. 55. Having regard to the above discussion, we are of the considered view that the action of the respondents of denying employment assistance to the dependant of a deceased employee by taking into account the family pension and other terminal benefits is not tenable in the eyes of law. Point No.(i) is answered accordingly." 8. In view of the above, the impugned order, dated 07.09.2015 (Annexure P10) is quashed, the writ petition is allowed and the respondents are directed to consider the case of the writ petitioner for appointment on compassionate ground without taking into account the income slab in terms of the tests and principles laid down in Surinder Kumar's case (supra). 9. Pending applications are also disposed of accordingly.