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2020 DIGILAW 826 (HP)

Nishant Kumar v. State of Himachal Pradesh

2020-11-11

ANOOP CHITKARA, L.NARAYANA SWAMY

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JUDGMENT Anoop Chitkara, J. - Challenging the rejection of the representation made by son of a Government Teacher, who died in harness, the said son had come up before erstwhile Himachal Pradesh State Administrative Tribunal, vide Original Application No.6881 of 2016, seeking employment on compassionate grounds. After abolition of the Tribunal, the said OA stands transferred to this Court and re-numbered as CWPOA No.3137 of 2019. 2. Admittedly, the facts are that Shri Ram Singh, who was working as Junior Basic Teacher under respondents No.2 and 3, expired in harness on 27.7.2004. At the time of death, he had the following legal heirs: Sl. No. Name Relationship with the employee & approximate age Employed or no particulars or employment and emoluments. 1. Smt. Janki Devi Mother, 64 years Not employed 2. Smt. Nirmala Devi Wife, 43 years Not employed 3. Mr. Nishant Kumar (Petitioner) Son, 12 years Not employed 4. Ms. Pratibha Daughter, 10 years Not employed 3. The department granted the family pension of the deceased employee in favor of his widow Smt. Nirmala Devi. Earlier to that and probably before 20.7.2010, the petitioner applied for appointment on compassionate grounds, in place of his father's job, who died in harness. He filled-up the proforma for such employment and annexed the same with the original undated application. The proforma details reveal that the petitioner was born on 5.12.1991 and could not qualify for his matriculation examination because of a compartment in mathematics. 4. The Deputy Director (Elementary Education) forwarded the petitioner's case for employment on compassionate grounds for necessary action to the Director Elementary Education vide office letter dated 19.2.2011. Vide communication dated 3rd June 2011, Annexure A-12, the Additional Director (Administration), returned the case to the Deputy Director (Elementary Education), informing him that the petitioner's claim does not fall under the policy framed by the Government for appointment on compassionate grounds. 5. The case of the petitioner is that the Deputy Director never communicated such rejection to him. On 16.11.2016, the petitioner sought information about his application made for employment on compassionate grounds under the Right to Information Act. Vide communication dated 2.12.2016, the Public Information Officer sent the requisite information to him vide letter Annexure A-13. 5. The case of the petitioner is that the Deputy Director never communicated such rejection to him. On 16.11.2016, the petitioner sought information about his application made for employment on compassionate grounds under the Right to Information Act. Vide communication dated 2.12.2016, the Public Information Officer sent the requisite information to him vide letter Annexure A-13. Thus, on coming to know about the rejection in December 2016 itself, the petitioner challenged the rejection order dated 3.6.2011, Annexure A-12, by filing an Original Application under Section 19 of the Himachal Pradesh Administrative Tribunal Act, 1985. 6. The respondents filed a response to the original application. The respondents contend that in 2010, the petitioner had applied for appointment to the post of Class-IV employee. In the said application, he had attached the affidavit of his mother, Nirmala Devi, with the declaration that she could not do a Government Job due to health problems. She had no objection if the State offers such a job to her son Nishant Kumar. The respondents further stated that although, as per the Government Policy, Nirmala Devi, the widow of the employee, who died in harness, was entitled to get the job on compassionate grounds, yet, she has shown her inability to do so by filing an affidavit in which she had asked for the said job for her son. The respondents further contended that the petitioner had visited the office on numerous occasions, and on multiple occasions, the staff had verbally apprised him about the rejection of the case. 7. The petitioner had filed a rejoinder to the reply and stated that the policy framed by the Government dated 18.1.1990, for appointments on compassionate grounds, was still in force and applicable to him. 8. Vide Judgment dated 16.12.2019, learned Single Judge did not find any merit in this petition and dismissed it. Challenging such dismissal, the petitioner has preferred the present Letters Patent Appeal before this Court under Clause 10 of the Letters Patent of High Court of Judicature at Lahore, applicable to the Himachal Pradesh High Court. 9. The appellant/petitioner's case is that the respondents had offered an appointment to his mother vide letter No. EDN-SLN(E-I)17/2007-6896, dated 30.06.2009; however, the mother of the petitioner was surrounded with adverse family circumstances and was also suffering from health ailments and subsequently did not find her in a position to perform the Government Job. 10. 9. The appellant/petitioner's case is that the respondents had offered an appointment to his mother vide letter No. EDN-SLN(E-I)17/2007-6896, dated 30.06.2009; however, the mother of the petitioner was surrounded with adverse family circumstances and was also suffering from health ailments and subsequently did not find her in a position to perform the Government Job. 10. After that, the petitioner's mother sworn in an affidavit asking the respondents to offer their son the said job. The petitioner claims that in the office memorandum Annexure P-4, which is the Government's policy for appointment of dependents of an employee, who dies in harness, the petitioner was entitled in its clause 2. His grievances are that the respondents had rejected his case because, as per the policy, it was only the widow or orphans who are eligible for compassionate appointment, whereas such amendment had come into force after the rejection. Before that, it was under consideration and yet to be notified. His other grievance is that learned Single Judge has dismissed the petition on the ground of ineligibility and based on delay in applying for compassionate appointment. 11. We have heard learned counsel for the parties and gone through the record, and our analysis is as follows. 12. The relevant portion of the office memorandum No. Per (AP-II) F(4)-4/89, dated 18.1.1990, is extracted as follows:- "2.To whom the Policy is applicable: - The employment assistance on compassionate grounds will be allowed in order to priority only to widow or a son or an unmarried daughter (in case of unmarried Government Servant to father, mother, brother and unmarried sister) of: - a) a Government servant who die while in service (including by suicide) leaving his family in immediate need of assistance. b) A Daily wage employee who dies while in service after having rendered atleast 5 years service with not less than 240 days on daily wage basis in a year (to be computed as an average of the number of days served in the preceeding years) leaving his family in immediate need of assistance. In such cases compassionate employment would be on daily wages only. c) a Government servant who has been missing for more than two years and the family needs the immediate assistance. d) a Government servant (Class-III and IV only) who retires on medical grounds under Rule 38 of the C.C.S. (Pension) Rules, 1972. In such cases compassionate employment would be on daily wages only. c) a Government servant who has been missing for more than two years and the family needs the immediate assistance. d) a Government servant (Class-III and IV only) who retires on medical grounds under Rule 38 of the C.C.S. (Pension) Rules, 1972. Provided the employee so retiring has not crossed the age of 53 years and 55 years in case of Class-III and IV respectively. e) a Government servant who dies during the period of extension in service but not re-employment, leaving his family in immediate need of assistance." 13. In the response filed to the original application, the department did not place on record any Policy, after the present one, based on which they had stated that only the widow and orphans are eligible. 14. Be that as it may, a reference to Clause 8 of the Policy dated 18.1.1990, would clinch the entire issue, which reads as follows: 8) Belated requests for compassionate appointments: Requests for grant of employment assistance should be received in the department concerned within three years of the death of the Government servant. In case where none of the sons/daughters of the deceased Government servant attain majority (age of 18 years) at the time of death of the government servant, the time limit for receipt of request for employment assistance in department concerned will be attainment of age of 21 years by the eldest son/un-married daughter. No relaxation will be allowed in entertaining requests beyond the above age except in the case of sons/un-married daughter/widow of deceased Government servants belonging to the difficult areas a laid down in the Transfer Policy." 15. The Government of Himachal Pradesh, Finance Department vide office memorandum No. Fin.P(9) 1/2004, wrote to all Administrative Secretaries to the Government of Himachal Pradesh in the following terms:- " On the above subject, I am directed to say that as per present policy of the government, this Department is considering those cases where the applicant is a widow or cases of those applicants, who both parents are not alive. It is, therefore, requested that for the present only those cases may be sent to this department where applicant is a widow and cases of applicants whose both parents are not alive." 16. It is, therefore, requested that for the present only those cases may be sent to this department where applicant is a widow and cases of applicants whose both parents are not alive." 16. Subsequently, after somewhere in September, the Government amended the Policy vide letter No.Per (AP-II)F(4)-4/89-VI, which reads as follows: " I am directed to refer to this Department letter of even number dated 1st September, 2008, on the subject cited above and to say that the matter for providing compassionate employment to the parentsless applicant of the deceased Government Servant on priority basis was under active consideration of the Government. Now, it has been decided by the Government that apart from the widow applicants the cases of applicants whose both parents are not alive shall be given priority for considering the matter of providing employment on compassionate grounds subject to fulfillment of other relevant criteria prescribed by the Govt. from time to time. You are requested to please bring these instructions to the notice of all concerned for strict adherence." 17. At this stage, reference be made to Annexure A-13, which is the information supplied by the Public Information Officer-cum-Deputy Director Elementary Education, Himachal Pradesh vide letter dated 2.12.2016, to Subhash Mohan Snehi, Advocate Himachal Pradesh High Court, Shimla. 18. A bare perusal of paragraph 1 of this information reveals that the Deputy Director (Elementary Education) had received the application of Nishant Kumar for compassionate appointment through Director Higher Education on 20.7.2010. A bare perusal of the letter dated 15.7.2010, supra reveals that the Government was considering only the widow and orphans' cases. However, this consideration culminated in the Policy in September 2010. The petitioner had applied for a compassionate appointment before September 2010. Even as per the information received under RTI, Annexure A-13, the application for compassionate appointment was received in the office on 20.7.2010, through Director Higher Education, Himachal Pradesh. However, it does not depict the date of the document. Still, it can reasonably be believed that the appellant/petitioner had applied before the policy amendment, i.e., September 2010. When the petitioner had applied, the policy applicable was 18.1.1990. As per that Policy, widow or a son or an unmarried daughter were eligible for appointment on a compassionate basis. 19. However, it does not depict the date of the document. Still, it can reasonably be believed that the appellant/petitioner had applied before the policy amendment, i.e., September 2010. When the petitioner had applied, the policy applicable was 18.1.1990. As per that Policy, widow or a son or an unmarried daughter were eligible for appointment on a compassionate basis. 19. A bare perusal of the letter Annexure A-12 reveals that the department had rejected the applicant's claim based on a letter dated 15.7.2010, under which, according to the department, the petitioner was ineligible. As already discussed supra, the letter dated 15.7.2010 had not culminated in the policy. Even otherwise, the department is silent that on which date the petitioner had applied, was it 15.7.2010 or a day before. At this stage, reference is again made to Annexure A-13 of the RTI Act, where the department has supplied the information that they have received the case of the appellant-petitioner for employing on the compassionate ground through Director Higher Education, Himachal Pradesh on 20.7.2010. It means that the appellant-petitioner must have submitted his application before 20.7.2010. It appears that the learned counsel for the petitioner as well as learned Additional Advocate General has not drawn the attention of learned Single Judge to this aspect of the matter; as such, the Court was not in a position to consider the same. 20. Be that as it may, even if the date of application is taken as 20.7.2010, still at that time, the policy was not amended, which was amended later, i.e., in September and not with effect from 15.7.2010. 21. Given the above analysis, the respondents passed the office order dated 3.6.2011, Annexure A-12, presuming that the policy for appointment on compassionate grounds, dated 18.1.1990, stood amended restricting the entitlement of such appointment to a widow or orphans, but without even referring to the date of such amendment. On the contrary, a perusal of letter No. Per (AP-II)F(4)-4/89-VI, reveals that such an amendment might have come into force after the petitioner had already applied for such an appointment under the previous policy of 1990. It further appears that the parties did not bring this aspect to the notice of Ld. Single Judge. 22. Thus, the Letter Patent Appeal is allowed, the office order dated 3.6.2011, Annexure A-12, as well as the Judgment dated 16.12.2019, passed by Ld. It further appears that the parties did not bring this aspect to the notice of Ld. Single Judge. 22. Thus, the Letter Patent Appeal is allowed, the office order dated 3.6.2011, Annexure A-12, as well as the Judgment dated 16.12.2019, passed by Ld. Single Judge in CWPOA No.3137 of 2019 is set aside, and the concerned respondent is directed to decide, the application of the petitioner for compassionate appointment, within three months from today, in the light of the policy for compassionate appointments in force at the time when the appellant-petitioner Nishant Kumar, had applied for employment on compassionate grounds. Pending application, if any, also stands disposed of.