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Himachal Pradesh High Court · body

2019 DIGILAW 1927 (HP)

Nishant Kumar v. State Of H P

2019-12-16

TARLOK SINGH CHAUHAN

body2019
JUDGMENT Tarlok Singh Chauhan, J. - The instant petition has been filed for the grant of following substantive reliefs: i) That the office order dated 03.06.2011 (Annexure A-12) may kindly be quashed and set-aside. ii) That the respondents may kindly be directed to give compassionate appointment to the applicant within a time bound period, since he fulfills all the eligibility criteria and after the untimely and sudden demise of his father late Shri Ram Singh, the family is living under indigent circumstances and moreover, the mother of the applicant has already sworn an affidavit for providing the employment to the applicant on compassionate ground." 2. The father of the applicant late Sh. Ram Singh while serving as Junior Basic Teacher (for short JBT) under respondents No.2 and 3 had died on 27.7.2004. 3. The mother of the applicant Smt. Nirmla Devi had submitted an affidavit that due to her health problems, she is not able to do the Govt. service and she has no objection if the service on compassionate ground is provided to her son Sh. Nishant Kumar. In the year 2010 the applicant submitted his case for providing employment on compassionate ground to the post of Class-IV employee. The case of the applicant was received in the office of respondent through respondent No.3 i.e. Deputy Director of Elementary Education, Solan and the matter was examined by the respondent as per Govt. Notification dated 15.07.2010 vide which it has been directed that at present only those cases may be sent to this Department where the applicant is a widow or cases of those applicants whose both parents are not alive. The case of the applicant was not covered under the criteria fixed by the Government for employment on compassionate ground, therefore, the matter was sent back by the respondent vide letter No.Shiksha-H(Pra) (1) B (6)- 15/2009 (compassionate) dated 03.06.2011 to respondent No.3, who further directed respondent No.4 to inform the petitioner accordingly. 4. Now, the moot question is whether despite there being no provision, can the petitioner still be appointed on compassionate grounds de hors the policy? 5. I have heard learned counsel for the parties and have also gone through the records of the case carefully. 6. 4. Now, the moot question is whether despite there being no provision, can the petitioner still be appointed on compassionate grounds de hors the policy? 5. I have heard learned counsel for the parties and have also gone through the records of the case carefully. 6. It is more than settled that there is no right to compassionate appointment as it is an exception to general rule that appointment to any public post in service of State must be made in accordance with Articles 14 and 16 of the Constitution and that is the reasons that there has to be a strict adherence to the terms and conditions of the policy relating to compassionate appointment. 7. This was so held by the Hon''ble Supreme Court while dealing with the instant policy in State of Himachal Pradesh and another vs. Shashi Kumar, (2019) 3 SCC 653 , wherein it was observed as under: "18. While considering the rival submissions, it is necessary to bear in mind that compassionate appointment is an exception to the general rule that appointment to any public post in the service of the State has to be made on the basis of principles which accord with Articles 14 and 16 of the Constitution. Dependants of a deceased employee of the State are made eligible by virtue of the Policy on compassionate appointment. The basis of the policy is that it recognizes that a family of a deceased employee may be placed in a position of financial hardship upon the untimely death of the employee while in service. It is the immediacy of the need which furnishes the basis for the State to allow the benefit of compassionate appointment. Where the authority finds that the financial and other circumstances of the family are such that in the absence of immediate assistance, it would be reduced to being indigent, an application from a dependent member of the family could be considered. The terms on which such applications would be considered are subject to the policy which is framed by the State and must fulfill the terms of the Policy. In that sense, it is a well-settled principle of law that there is no right to compassionate appointment. The terms on which such applications would be considered are subject to the policy which is framed by the State and must fulfill the terms of the Policy. In that sense, it is a well-settled principle of law that there is no right to compassionate appointment. But, where there is a policy, a dependent member of the family of a deceased employee is entitled to apply for compassionate appointment and to seek consideration of the application in accordance with the terms and conditions which are prescribed by the State." 8. Once, the policy itself provides for appointment on compassionate ground only to the widow, therefore, the benefit under the same cannot be extended to any other person save and except the one mentioned in the policy. That apart, Ram Singh died in the year 2004, whereas the request for appointment was made after delay of more than seven years. 9. An identical issue came up before the Hon''ble Supreme Court in Shashi Kumar''s case (supra) and while coming to the conclusion that there was delay and laches on the part of the respondents therein in approaching the High Court, it was observed as under: "35. Insofar as the individual facts pertaining to the respondent are concerned, it has emerged from the record that the Writ Petition before the High Court was instituted on 11 May 2015. The application for compassionate appointment was submitted on 8 May 2007. On 15 January 2008 the Additional Secretary had required that the amount realized by way of pension be included in the income statement of the family. The respondent waited thereafter for a period in excess of seven years to move a petition under Article 226 of the Constitution. In Umesh Kumar Nagpal vs. State of Haryana, (1994) 4 SCC 138 , this Court has emphasized that the basis of a scheme of compassionate appointment lies in the need of providing immediate assistance to the family of the deceased employee. This sense of immediacy is evidently lost by the delay on the part of the dependant in seeking compassionate appointment. 36. This sense of immediacy is evidently lost by the delay on the part of the dependant in seeking compassionate appointment. 36. We are not impressed with the submission that delay should not be taken into account since Paragraph 8 of the Scheme contemplates that in a situation where all the dependant children of the deceased employee have yet to attain the age of majority, the time limit for submission of an application is extended until the first of the children attains the age of twenty one years. A case where each of the children is a minor falls in a different class altogether. This cannot be equated with a situation where a dependant of a deceased employee who was a major on the date of death fails to submit an application within a reasonable period of time from the death of the employee. This aspect of delay has been dealt with in other decisions of this Court, including State of J&K Vs. Sajad Ahmed Mir, (2006) 5 SCC 766 and Local Administration Department Vs. M. Selvanayagam, (2011) 13 SCC 42 . 37. We see no reason or purpose in now directing the State to reconsider its decision in the case of the respondent which would only result in another round of fruitless litigation. In our view, the respondent is debarred from seeking compassionate appointment by the delay as well as by the lapse of time which has taken place." 10. In view of the aforesaid discussion, I find no merit in the instant petition and the same is accordingly dismissed, so also the pending application(s) if any, leaving the parties to bear their own costs.