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2023 DIGILAW 462 (HP)

Khubwati v. State of Himachal Pradesh

2023-11-21

AJAY MOHAN GOEL

body2023
JUDGMENT : AJAY MOHAN GOEL, J. By way of this petition, the petitioners have prayed for the following relief: “i) to quash and setaside Annexure P8 and Annexure P13 being arbitrary, illegal, unjust and against the principle of natural justice. ii) To grant employment assistance on compassionate grounds to the petitioner in view of the policy Annexure P1, P11 and P14 read with judgment of this Hon’ble Court passed in CWP No.3100 of 2010 dated 28-10-2020 (Annexure P15).” 2. The case of the petitioner is that her mother died while serving as a Peon on 20.06.2009 in harness. The petitioner applied for appointment on compassionate basis, which was rejected by the Competent Authority vide Annexure P8 on 28.02.2014 by assigning the following reasoning: “This is with reference to your application dated 28-1-2014 on the subject cited above. In this context, it is informed that as per available office record. no application dated 4-1-2010 for giving appointment on compassionate ground has ever been received in this office. As such your case is time barred and beyond the scope of Govt policy for appointment on compassionate grounds. In view of above, your application dated 20-3-2013 alonewith ite enclosures in original are returned herewith. The copy of the Govt. policy issued vide O.M. No. Per (APII) F(4)4/89, dated 18-1-1990 is enclosed for your information and further necessary action. if any.” 3. This order was not challenged by the petitioner. She, however, again took up the matter with the department for offering her appointment on compassionate basis from time to time and lastly, her claim has been rejected vide Annexure P13 dated 26.08.2022 by assigning the following reasoning “On the above noted subject, it is intimated that as per the record available in the office your mother, who was an employee of this Department, expired on 29-09-2009 and you applied for employment on compassionate grounds on 2003-2013. Since, you and applied for employment on compassionate grounds after the lapse of stipulated period of three years prescribed under the kith & kin policy of the Government, therefore, your case was rejected on this ground vide this office letter No. 40129/ 92coop( estt.) dated 02-12-2016. Moreover, the Hon'ble High court of HP. Since, you and applied for employment on compassionate grounds after the lapse of stipulated period of three years prescribed under the kith & kin policy of the Government, therefore, your case was rejected on this ground vide this office letter No. 40129/ 92coop( estt.) dated 02-12-2016. Moreover, the Hon'ble High court of HP. vide judgment dated 06-10-2015 passed in CWP No. 9094 of 2013 titled Surinder Kumar vs State of H.P. & others has held that" No relaxation in time limit for submission of compassionate employment case after completion of three years from the date of death of the deceased Government employee(s) permissible". However, your representation for grant of employment on compassionate grounds received in this office on 12-09-2019 through the office of the ARCS Kullu, was placed before the committee constituted vide Government notification no. Coop.B (15)10/ 2015 dated 20-07-2019 for consideration. The committee scrutinized your case in toso and observed that you had not applied for employment on compassionate grounds within the period of three years from the date of deceased Government employee and the time limit so fixed under the kith & kin policy of the Government cannot be relaxed in terms of the judgment of Hon'ble High Court referred above. Therefore, your case for grant of employment on compassionate grounds was rejected by the committee after due consideration.” 4. Learned counsel for the petitioner has argued that rejection of the case of the petitioner is not sustainable in the eyes of law as the authority has erred in not appreciating that the petitioner did not immediately apply for appointment on compassionate basis as she was a married daughter and in terms of the policy, she was not eligible to seek appointment on compassionate basis. Learned counsel further argued that now as this Court in CWP No.3100 of 2020, titled as Mamta Devi vs. State of Himachal Pradesh and others, decided on 28.10.2020, has held that even a married daughter is entitled for appointment on compassionate basis, the case of the petitioner is entitled to be considered on said count. He has accordingly prayed that petition be allowed by setting aside the impugned order and by directing the respondents to offer appointment to the petitioner on compassionate basis. 5. He has accordingly prayed that petition be allowed by setting aside the impugned order and by directing the respondents to offer appointment to the petitioner on compassionate basis. 5. The prayer has been opposed by the respondents, inter alia, on the ground that the case of the petitioner was initially rejected on 10.06.2013 and the challenge to Clause 2 of the Policy, dated 18.01.1990 after ten years of rejection is hit by delay laches. Learned Additional Advocate General has argued that the mother of the petitioner died on 20.06.2009 and at the relevant time, the petitioner was married. As it was the policy dated 18.01.1990, which was in vogue at the relevant time, therefore, the case of the petitioner was to be considered in terms of the policy which remained in force till 07.03.2019. The petitioner initially applied for appointment on compassionate basis on 20.03.2013 by claiming herself to be a divorcee, which application was rejected as having been filed beyond the time limit, i.e. after three years from the date of death of mother of the petitioner. Her second representation submitted on 28.01.2014 was again rejected vide letter dated 28.02.2014. Her representation made to the Worthy Chief Minister of the State was received by the Administrative Department and it was clarified that no relaxation in time limit for submission of compassionate appointment case after three years from the date of death of the deceased was permissible in terms of the law laid down by the High Court in CWP No. 9094 of 2013, titled as Surinder Kumar vs State of H.P. & others, decided on 06-10-2015. The last application received from the petitioner for seeking appointment on compassionate basis was also rejected vide letter dated 26.08.2022, by applying the relevant compassionate policy and as the petitioner primarily had not approached the Authority for grant of appointment on compassionate basis within time, her applications were rightly rejected as time barred. As per respondents, petitioner otherwise also is not eligible for appointment on compassionate basis. 6. Having heard learned counsel for the petitioner as also learned Additional Advocate General, this Court is of the considered view that no interference is called for visàvis the orders that have been passed by the Competent Authority, rejecting the application(s) filed by the petitioner from time to time, seeking appointment on compassionate basis primarily on the ground of the application(s) being time barred. 7. 7. It has not been disputed before this Court that in terms of the policy in vogue in the year 2009 when the mother of the petitioner died, the application seeking appointment on compassionate basis was required to be filed within three years as from the date of death. Admittedly, no application was preferred by the petitioner within the said period. That being the case, rejection of the original application on the ground that the same was time barred, cannot be faulted with. Whether or not, the petitioner was eligible for appointment is a separate issue. 8. Now, incidently herein though there are four rejections of the representations of petitioner by the Competent Authority made from time to time, but fact of the matter remains that first rejection of her application for appointment on compassionate basis was not assailed by her in any Court of Law. 9. That being the case, when the first order passed by the Competent Authority rejecting the case of the petitioner had attained finality, this Court is of the considered view that the subsequent representations filed by her were of no consequence whatsoever. The petitioner without getting rid of the initial order of rejection, could not have banked on the subsequent representations or orders passed thereupon either for the purpose of limitation or to demonstrate that her case was not hit by delays and laches. 10. A Five Judges Bench of Hon’ble Supreme Court in S.S. Rathore vs. State of Madhya Pradesh, 1989 (4) Supreme Court Cases 582, has been pleased to hold that the cause of action shall be taken to arise not from the date of the original adverse order, but on the date when the order of the higher authority where a statutory remedy is provided, entertaining the appeal or representation is made and where no such order is made, though the remedy has been availed of, a six months period from the date of preferring of the appeal or making of the representation shall be taken to be the date when cause of action shall be taken to have first arisen. Hon’ble Supreme Court further observed in this judgment that this principle may not be applicable where the remedy availed of has not been provided by law. 11. Hon’ble Supreme Court further observed in this judgment that this principle may not be applicable where the remedy availed of has not been provided by law. 11. Herein the right to seek appointment on compassionate basis flows from the policy formulated by the Government from time to time and in the case of the petitioner it was the policy formulated in the year 1990 which was governing the field that the mother of the petitioner died. In terms of the said policy, the time period within which the application was required to be filed after the death of a person seeking appointment on compassionate basis was three years. The time barred application which was filed by the petitioner seeking appointment on compassionate basis, as per the averments made in the reply was rejected initially on 10.06.2013. This rejection of the representation of the petitioner conferred or occasioned the cause of action in favour of the petitioner to have had assailed this order before this Court, passed on 10.06.2013. 12. Admittedly, this order was not challenged by the petitioner, still she continued to be made repeated representations which were also rejected by the Competent Authority by assigning the same grounds. But fact of the matter remains that the first rejection of the case of the petitioner which was on the basis of the application which was filed by her as per the 1990 policy was passed as far as back as on 10.06.2013, which was allowed by the petitioner to attain finality. 13. The rejection besides other grounds was also on the ground that the petitioner had not filed her case for consideration for appointment on compassionate basis within three years as from the date of death of her mother. 14. That being the case and further in light of the law declared by this Court in CWP No. 9094 of 2013, titled as Surinder Kumar vs State of H.P. & others, decided on 06-10-2015, that in the case of compassionate appointment, no relaxation in time limit for submission of compassionate appointment case after completion of three years service is permissible, the orders passed by the Competent Authority from time to time rejecting the case of the petitioner on the ground that the same was time barred do not suffer from any illegality or perversity and do not call for any Judicial review. 15. 15. In view of the above observations, this petition is dismissed, so also the pending miscellaneous applications, if any.