Research › Search › Judgment

Himachal Pradesh High Court · body

2023 DIGILAW 21 (HP)

Mahi Pal v. State of H. P.

2023-01-05

JYOTSNA REWAL DUA

body2023
JUDGMENT : [Jyotsna Rewal Dua, J.] 1. Petitioner was employed on compassionate basis as daily wage Beldar on 7.3.2006. He was regularized as such on 6.9.2013. On 7.8.2015, respondent No.2 in purported compliance to an order passed by the Administrative Tribunal ordered for retrospective compassionate appointment of petitioner as Clerk (daily wage) w.e.f. 7.3.2006 and on regular basis w.e.f. 7.9.2013. Petitioner started working as Clerk. The order dated 7.8.2015 was withdrawn by the respondents on 8.6.2016. The operation of order dated 8.6.2016 was stayed in this case on 1.7.2016. Petitioner who continues to serve as clerk has assailed order dated 8.6.2016 and has further prayed to allow him to continue to serve as clerk. 2. The facts are not in dispute:- 2(i) Petitioner’s father was appointed as Pipe Fitter Grade-I with the respondent-department on 20.12.1990. He died in harness on 16.07.2000. The petitioner became a matriculate in the year 2003. He obtained 10+2 qualification in the year 2005. 2(ii) After attaining the age of majority, the petitioner applied for compassionate appointment to the post of clerk on 21.07.2004 (Annexure A-1). His case was recommended by respondent No.2 to respondent No.1 vide office letter dated 7.11.2005 (Annexure A-2). 2(iii) On 6.3.2006 (Annexure R-I), petitioner requested respondent No.3 to appoint him on compassionate basis as Beldar on daily-wage basis. Petitioner’s request was accepted and he was offered compassionate employment as daily-wage Beldar vide order dated 7.3.2006 (Annexure R-II). The petitioner accepted the post and joined as such. He was regularized as Beldar on 06.9.2012 (Annexure R-III). 2(iv) Petitioner made a representation to the respondent-department on 18.9.2012 requesting to appoint him to the post of clerk. The application was made on the ground that he had applied for employment on compassionate basis as per the Policy prevailing in the year 2004. The petitioner was eligible for the post of clerk as per Policy prevailing at the relevant time. But instead of appointing him to the post of clerk w.e.f. 7.3.2006, the respondent-department had offered him the post of Beldar. Respondent No.3 considered petitioner’s application and on 20.09.2012 (Annexure P-5), recommended reviewing petitioner’s case to respondent No.2 for the post of clerk retrospectively. But instead of appointing him to the post of clerk w.e.f. 7.3.2006, the respondent-department had offered him the post of Beldar. Respondent No.3 considered petitioner’s application and on 20.09.2012 (Annexure P-5), recommended reviewing petitioner’s case to respondent No.2 for the post of clerk retrospectively. Recommendation made by respondent No.3 did not find favour with the Chief Engineer (SZ) IPH Department, who vide office letter dated 1.8.2013 (Annexure A-6) rejected the case for the reason that “post once accepted by the petitioner on compassionate ground cannot not be changed in view of covering instruction of the Department of Personnel Office Memorandum No.Per(AP-II)f(4)/89dated 18.01.1990 Para-11”. 2(v) The respondent’s decision dated 01.08.2013 (Annexure A-6) was assailed by the petitioner in CWP No. 2626/2014 (Mahi Pal Vs. State of H.P. & Ors). It was submitted by the petitioner in the said petition that his case was covered by a judgment dated 22.11.2012 rendered in CWP No. 9945/2012 (Naresh Kumar Vs. State of H.P. & Ors). It was also brought to the notice of the Court that Special Leave Petition assailing the decision in Naresh Kumar’s case supra had been dismissed by the Hon’ble Supreme Court on 16.12.2013 (Annexure A-10). Accordingly, petitioner’s CWP No.2626/2014 was decided on 11.09.2014 (Annexure A-8) with the following directions:- “5. As such, leaving all other questions of law open, we dispose of the present petition with the following directions:- (i) The respondents shall consider and decide the petitioner’s case in the light of judgment rendered in Naresh Kumar (supra); (ii) Liberty is reserved to the petitioner to place additional material before the appropriate authority; (iii) The question of petitioner’s entitlement, in accordance with law, shall be considered by the authorities; (iv) The decision shall be taken by the competent authority within a period of three months, from the date of production of certified copy of this order, by affording due opportunity of hearing/representation to all concerned, including the petitioner and (v) Also the authorities shall pass a reasoned order, which shall be communicated to the petitioner.” At this juncture, it would be appropriate to take note of the judgment passed on 22.11.2012 in CWP No.9945/2012 (Naresh Kumar Vs. State of H.P. & Anr) (Annexure A-9), which reads as under:- “The writ petition is filed with the following prayer:- “i) Issue writ of mandamus with directing the respondent-department to consider the case of the petitioner for appointment as daily waged clerk i.e. lowest grade of Class-III post.” 2. According to the petitioner, on the date of his appointment on compassionate basis as Class-IV vacancies were available in Class-III. 3. In several judgments, this Court has made it clear that the appointment on compassionate basis necessarily need not be in Class-IV, if an incumbent is qualified and in case there is vacancy available, the appointment has to be made in the lowest grade of Class-III post. There will be a direction to the second respondent/competent authority to examine the case of the petitioner and in case, there was vacancy available in the lowest grade of Class-III post on the date of appointment of the petitioner as Class-IV, the petitioner shall be forthwith appointed in the lowest grade of Class-III. 4. With the aforesaid observations, the writ petitioners stands disposed of, so also the pending application(s), if any.” In light of directions dated 11.09.2014 issued in CWP No.2626/2014 (Mahi Pal Vs. State of H.P. & Ors), the respondent-department considered the case of the petitioner and observed that the petitioner was offered appointment as Beldar on 6.3.2006, which he accepted and joined as such on 07.03.2006. The petitioner had continued to serve as Beldar. Therefore under the Policy, his appointment cannot be changed from Class-IV to Class-III after a gap of 8 years. The claim of the petitioner for change in the category of the post on which he was given compassionate employment was hopelessly time barred. The order rejecting the case of the petitioner was passed by respondent No.3 on 06.02.2015 (Annexure A-11). 2(vi) Petitioner again represented to respondent No.3 on 19.3.2015 (Annexure P-13) seeking to review the order dated 06.02.2015, whereby his case was rejected by respondent No.3. In this third round, respondent No.3 recommended to respondent No.2 on 23.3.2015 (Annexure A-14) for reviewing the compassionate employment case of the petitioner in accordance with the judgment rendered in CWP No.9945/2012 (Naresh Kumar Vs. State of H.P. & Anr). In the meanwhile, the petitioner preferred Original Application No. 1021/2015, before the erstwhile H.P. Administrative Tribunal. The said original application was decided on 21.05.2015 (Annexure A-19). State of H.P. & Anr). In the meanwhile, the petitioner preferred Original Application No. 1021/2015, before the erstwhile H.P. Administrative Tribunal. The said original application was decided on 21.05.2015 (Annexure A-19). The original application was taken up for disposal after dispensing the requirement of filing of replies. On behalf of the petitioner, it was stated that petitioner’s case was covered by the judgment dated 22.11.2012 delivered in CWP No. 9945/2012 (Naresh Kumar Vs. State of H.P. & Ors). Taking note of the submissions, the learned Tribunal disposed of the original application with a direction to the respondent-competent authority that subject to the verification of records and on finding the petitioner to be similarly situate, the benefit of the said judgment shall also be extended to the petitioner with all consequential benefits. 2(vii) Respondent No.3 thereafter considered the entire matter afresh and vide order dated 7.8.2015 (Annexure A-21) ordered appointment of the petitioner as clerk on daily-wage basis w.e.f. 7.3.2006 and on regular basis w.e.f. 7.9.2013. The operative part of the order reads as under:- “Hence, based upon the above admitted position and direction of the Hon’ble High Court and the Hon’ble Himachal Pradesh Administrative Tribunal at Shimla, it shall be in the fitness of things, being legal and proper that the petitioner may also be appointed as Clerk on daily wages basis @ Rs.89/- per day with effect from 7.3.2006. However, the petitioner shall not be entitled for arrears on account retrospective daily wages appointment as Clerk instead of Daily waged beldar and it shall be strictly on notional basis. Consequently, he shall be considered as regular clerk w.e.f. 7.9.2013 against vacancy in IPH Circle Nahan in the pay scale of Rs.5910-20200 + GP Rs.1900, initial start of Rs.7810/-.” The above order passed by respondent No.3 was not accepted by the higher authority. On 23.06.2016 (Annexure A-23), respondent No.1 directed respondent No.2 that the order dated 7.8.2015 was passed without the approval of competent authority and wrongly gave Class-III post (clerk) to the petitioner, hence be rescinded. Consequently, respondent No.3 on 28.06.2016 (Annexure A-22) withdrew the office order dated 7.8.2015. On 23.06.2016 (Annexure A-23), respondent No.1 directed respondent No.2 that the order dated 7.8.2015 was passed without the approval of competent authority and wrongly gave Class-III post (clerk) to the petitioner, hence be rescinded. Consequently, respondent No.3 on 28.06.2016 (Annexure A-22) withdrew the office order dated 7.8.2015. It is in the above background that the petitioner has preferred the instant writ petition seeking the following substantive reliefs:- “(i) That the impugned orders 28.06.2016 (Annexure A-22) and order dated 23.06.2012 (Annexure A-23) may kindly be quashed and set aside being illegal and the office order dated 07.08.2015 passed by respondent No.3 may kindly be upheld. (ii) That the respondents may kindly be directed to allow the applicant to continue working as clerk in the office of the respondent No.3.” Interim order dated 1.7.2016 passed in this petition stayed the operation of impugned order dated 28.06.2016 (Annexure A-22). Petitioner is presently serving as Clerk. 3. Contentions Learned counsel for the petitioner contended that respondent No.3 had rightly passed the order dated 7.8.2015 (Annexure A-21) appointing the petitioner as Clerk retrospectively w.e.f. 7.3.2006 and regularizing him as such w.e.f. 7.9.2013. This was in view of the fact that the petitioner had possessed the qualifications required for appointment as clerk at the time of his initial appointment as Beldar. The petitioner was wrongly offered the appointment on compassionate basis as Beldar on 7.3.2006. In view of the Policy prevailing at that relevant time, the petitioner ought to have been appointed on Class-III post i.e. clerk. The error in his appointment had been rectified by respondent No.3 by issuing office order dated 7.8.2015. The said office order was also in consonance with the directions issued in CWP No. 2626/2014 (Mahi Pal Vs State of H.P. & Ors) decided on 11.09.2014. In the said case, respondents were directed to decide petitioner’s case in light of the judgment rendered in Naresh Kumar’s case (supra). Petitioner’s case was similar to that of Naresh Kumar. In compliance to judgment passed in Naresh Kumar’s case supra, said Naresh Kumar in view of his qualification was eventually appointed against Class-III post. However, similar treatment was denied to the petitioner. The respondent-department had earlier wrongly rejected the case of the petitioner for appointment to the post of clerk vide office order dated 6.2.2015. This compelled the petitioner to institute OA No. 1021/2015. However, similar treatment was denied to the petitioner. The respondent-department had earlier wrongly rejected the case of the petitioner for appointment to the post of clerk vide office order dated 6.2.2015. This compelled the petitioner to institute OA No. 1021/2015. The directions issued in this original application on 21.05.2015 were implemented by respondent No.3 by passing order on 7.8.2015, whereby the petitioner was ordered to be appointed as Clerk on daily-wage basis w.e.f. 7.3.2006 and regularized w.e.f. 7.9.2013. In terms of this order, the petitioner was not to be paid any arrears on account of his retrospective appointment as clerk. The said appointment was to be only on notional basis w.e.f. 7.3.2006. He was to be considered as regular clerk w.e.f. 7.9.2013 against vacancy in I&PH Circle Nahan. Opposing the writ petition, learned Additional Advocate General submitted that the order dated 7.8.2015 was not correct in law. It was passed by respondent No.3, who was not competent to pass such order. It was for that reason that the Special Secretary (IPH) had sent communication dated 23.6.2016 to respondent No.2 to rescind the order dated 7.8.2015 issued by respondent No.3, pursuant to which, by issuing office order dated 28.6.2016 (Annexure A-22), respondent No.3 had withdrawn its earlier passed order dated 7.8.2015. It was further submitted that the judgment in Naresh Kumar’s case was based upon facts of that case and cannot be straightway applied to the facts of the instant case. Learned Additional Advocate General placed reliance upon certain decisions of the Hon’ble Supreme Court in support of his contention that the petitioner was not entitled for compassionate employment to the post of clerk. 4 Observations 4(i) The case record shows that the petitioner had applied for compassionate appointment on 21.7.2004 against the post of clerk. It is an admitted case of the parties that at that stage petitioner was only a matriculate. It is pleaded case of the petitioner that he passed 10+2 examination during the year 2005. It is also borne out from the record that the petitioner had himself requested the respondents on 6.6.2006 for employing him on compassionate basis against the post of Beldar. The respondent-department had accordingly appointed the petitioner on compassionate basis as Beldar on daily-wage basis vide order dated 7.3.2006. The petitioner accepted the offer and joined as Beldar. The record also shows that the petitioner was even regularized as Beldar on 6.9.2012. The respondent-department had accordingly appointed the petitioner on compassionate basis as Beldar on daily-wage basis vide order dated 7.3.2006. The petitioner accepted the offer and joined as Beldar. The record also shows that the petitioner was even regularized as Beldar on 6.9.2012. 4(ii) Seven years after petitioner’s compassionate appointment as Beldar on daily wage basis and after his regularization as Beldar, the petitioner moved a representation to the respondent-department seeking his appointment as clerk on compassionate ground w.e.f 7.3.2006. His case was rejected by the Chief Engineer (SZ) IPH Department on 1.8.2013. The decision dated 1.8.2013, though was not interfered with by this Court while deciding petitioner’s Writ Petition No.2626/2014, however, respondent No.3 was directed to examine the case of the petitioner in light of the judgment dated 22.11.2012 rendered in Naresh Kumar’s case (supra). In compliance thereto, respondent No.3 considered the case of the petitioner and vide office order dated 6.2.2015 turned down petitioner’s prayer. The petitioner now filed an OA No. 1021/2015, before the erstwhile H.P. Administrative Tribunal. The Tribunal vide order dated 21.05.2015 again directed the respondent-department to decide the case of the petitioner in light of the judgment passed in Naresh Kumar’s case (Supra). This time respondent No.3 decided the case in favour of the petitioner and on 7.8.2015 ordered for his appointment as clerk retrospectively w.e.f. 7.3.2006. The petitioner was also to be considered as regular clerk in terms of this order w.e.f. 7.9.2013 against the vacancy in IPH Circle Nahan. 4(iii) According to the reply filed by respondents No.1 to 3, respondent No.3 was not competent to allow the claim of the petitioner for his appointment as clerk that too retrospectively w.e.f 7.3.2006 and to consider him as a regular clerk w.e.f. 7.9.2013. As per the reply, the order passed by respondent No.3 on 7.8.2015 was without jurisdiction. The competent authority to pass such order was the Finance Department. Be that as it may. 4(iv) In 2022(1) SCC 30 (State of Uttar Pradesh and others Vs Premlata), ‘Dying-In-Harness Rules 1974’ on compassionate ground appointment in State of Uttar Pradesh were under consideration. Rule 5 of these rules provided for appointment on compassionate grounds on ‘suitable post’. Hon’ble Apex Court considered various precedents in time line relating to appointment on compassionate ground. 4(iv) In 2022(1) SCC 30 (State of Uttar Pradesh and others Vs Premlata), ‘Dying-In-Harness Rules 1974’ on compassionate ground appointment in State of Uttar Pradesh were under consideration. Rule 5 of these rules provided for appointment on compassionate grounds on ‘suitable post’. Hon’ble Apex Court considered various precedents in time line relating to appointment on compassionate ground. It was reiterated that appointment on compassionate ground offered to a dependent of a deceased employee is an exception to norms of providing equal opportunity to all aspirants in Government vacancies mandated under Articles 14 & 16 of the Constitution. The compassionate ground is a concession and not a right. The interpretation given by the High Court that ‘suitable post’ would mean any post suitable to the qualification of the candidate irrespective of the post held by the deceased employee, was held to be defeating the object and purpose of appointment on compassionate ground. Compassionate appointment to higher post than held by deceased employee cannot be granted as matter of right on ground that dependent is eligible for such higher post. Following was held by the Hon’ble Apex Court:- “10.2 The Division Bench of the High Court in the present case has interpreted Rule 5 of Rules 1974 and has held that ‘suitable post’ under Rule 5 of the Rules 1974 would mean any post suitable to the qualification of the candidate irrespective of the post held by the deceased employee. The aforesaid interpretation by the Division Bench of the High Court is just opposite to the object and purpose of granting the appointment on compassionate ground. ‘Suitable post’ has to be considered, considering status/post held by the deceased employee and the educational qualification/eligibility criteria is required to be considered, considering the post held by the deceased employee and the suitability of the post is required to be considered vis a vis the post held by the deceased employee, otherwise there shall be no difference/distinction between the appointment on compassionate ground and the regular appointment. In a given case it may happen that the dependent of the deceased employee who has applied for appointment on compassionate ground is having the educational qualification of Class-II or Class-I post and the deceased employee was working on the post of Class/Grade IV and/or lower than the post applied, in that case the dependent/applicant cannot seek the appointment on compassionate ground on the higher post than what was held by the deceased employee as a matter of right, on the ground that he/she is eligible fulfilling the eligibility criteria of such higher post. The aforesaid shall be contrary to the object and purpose of grant of appointment on compassionate ground which as observed hereinabove is to enable the family to tide over the sudden crisis on the death of the bread earner. As observed above, appointment on compassionate ground is provided out of pure humanitarian consideration taking into consideration the fact that some source of livelihood is provided and family would be able to make both ends meet. 10.3 In the present case as observed hereinabove initially the respondent applied for appointment on compassionate ground on the post of Assistant Operator in Police Radio Department. The same was not accepted by the Department and rightly not accepted on the ground that she was not fulfilling requisite eligibility criteria for the post of Assistant Operator. Thereafter the respondent again applied for appointment on the compassionate ground on the post of Workshop Hand. The case of the respondent was considered, however, she failed in the physical test examination, which was required as per the relevant recruitment rules of 2005. Therefore, thereafter she was offered appointment on compassionate ground as Messenger which was equivalent to the post held by the deceased employee. Therefore appellants were justified in offering the appointment to the respondent on the post of Messenger. However, the respondent refused the appointment on such post. 11. In view of the above and for the reasons stated above, the Division Bench of the High Court has misinterpreted and misconstrued Rule 5 of the Rules 1974 and in observing and holding that the ‘suitable post’ under Rule 5 of the Dying In Harness Rules 1974 would mean any post suitable to the qualification of the candidate and the appointment on compassionate ground is to be offered considering the educational qualification of the dependent. As observed hereinabove such an interpretation would defeat the object and purpose of appointment on compassionate ground.” The above observations of the Hon’ble Apex Court were reiterated by the Hon’ble Apex Court in its decision dated 02.08.2022 passed in Civil Appeal No. 5038/2022 (Suneel Kumar Vs State of U.P. Ors). It was held therein that the words ‘suitable employment’ must be understood with reference to the post held by the deceased employee. Superior qualification held by a dependent cannot determine the scope of the words ‘suitable employment’. 4(v) In the instant case, admittedly the petitioner had accepted the post of Beldar offered to him on compassionate basis. He had joined as Beldar on 7.3.2006. The petitioner was also regularized as Beldar on 6.9.2012. It was only on 20.09.2012 that the petitioner represented to the respondent-department for reviewing his case and to consider him for the post of clerk retrospectively on the ground that he had qualification of 10+2 required for the post of clerk at the time when he was offered the post of Beldar in the department. The case of the petitioner was turned down by the respondent-department on 1.8.2013. Pursuant to the directions issued on 11.09.2014 in CWP No. 2626/2014 instituted by the petitioner, respondent-department once again rejected the case of the petitioner on 6.2.2015. Though in compliance to order dated 21.05.2015, passed by the erstwhile Tribunal in O.A. No.1021/2015, respondent No.3 allowed petitioner’s prayer on 7.8.2015 by appointing him on compassionate basis as clerk (on daily wage basis) retrospectively w.e.f. 7.3.2006 & as a regular clerk w.e.f. 7.9.2013, however, the fact remains that this order was withdrawn on 8.6.2016. Having observed the factual sequence of the case, one cannot lose sight of the fact that w.e.f. 7.9.2013/7.8.2015, the petitioner for all intents and purposes is working as a clerk. The impugned order dated 28.06.2016 (Annexure A-22) rescinded the office order dated 7.8.2015. The operation of impugned order dated 28.06.2016 had been stayed vide interim order dated 1.7.2016 passed in the instant case. The said order is still in force. The petitioner is still continuing as clerk. The petitioner has now spent almost 9 years as clerk. It is also seen from the record more particularly Annexure A-25 dated 9.12.2015 that the petitioner was due for appointment to the post of clerk against 20% Limited Direct Recruitment quota. His name was also sponsored for that purpose. The petitioner is still continuing as clerk. The petitioner has now spent almost 9 years as clerk. It is also seen from the record more particularly Annexure A-25 dated 9.12.2015 that the petitioner was due for appointment to the post of clerk against 20% Limited Direct Recruitment quota. His name was also sponsored for that purpose. However, he was not appointed as clerk for the reason that the petitioner was already serving as clerk w.e.f. 7.9.2013. Hence, taking holistic view of the facts and circumstances of the case and in the interest of justice, present writ petition is disposed of by directing respondent No.1-Secretary (I&PH) to the Government of Himachal Pradesh to consider the entire case of the petitioner afresh keeping in view the discussion made hereto before and also keeping in view the fact that the petitioner is continuing as clerk for past about 9 years. A fresh decision in accordance with law shall be taken by respondent No.1 within a period of 8 weeks from today after providing an opportunity of hearing to the petitioner. Interim order dated 1.7.2016 shall remain in force until the passing of order by respondent No.1. Copy of the order so passed, shall also be communicated to the petitioner. Pending miscellaneous application(s), if any, shall stand disposed of.