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Himachal Pradesh High Court · body

2024 DIGILAW 182 (HP)

Kamal Kishore v. State of H. P.

2024-03-18

SANDEEP SHARMA

body2024
JUDGMENT : SANDEEP SHARMA, J. 1. Being aggrieved and dissatisfied with orders dated 15.10.2014, 29.10.2014 and 08.02.2021 (Annexure P-10, Annexure P-11 & Annexure P-21), whereby prayer made on behalf of the petitioner for appointment on compassionate grounds, came to be rejected, petitioner has approached this Court in the instant proceedings filed under Article 226 of the Constitution of India, praying therein following main reliefs: “That the impugned order dated 08.02.2021(Annexure P-21) and also the orders dated 15.10.2014 (Annexure P-10) and 29.10.2014 (Annexure P-11) may kindly be quashed and set aside. Further respondents may kindly be directed to give employment to the petitioner as clerk on compassionate basis w.e.f. 02.08.2010, i.e. the date of application as he is fully eligible and fulfills the income criteria so fixed.” 2. Precisely, the facts of the case, as emerge from the record are that father of the petitioner, i.e. Late Sh. Hans Raj, who was working as a Peon in the Education Department, Himachal Pradesh, died in harness on 16.12.2009. Immediately after death of his father, petitioner being fully eligible for compassionate appointment, applied for the post of clerk. The Deputy Director of Higher Education, submitted the case of the petitioner to the higher authorities on 22.05.2013. However, vide communication dated 18.06.2013, Joint Director sent a communication to the Deputy Director for sending the PPO alongwith calculation sheet showing the income from pension as well as from other sources in respect of the family on the date of submission of application. On 29.06.2013, petitioner submitted fresh application after removing all the objections along with PPO, Income Certificate and calculation sheet, which was further sent to the Director of Higher Education on 08.07.2013. Case of the petitioner was further sent by the Director Higher Education to Principal Secretary Education vide communication dated 31.07.2023 for taking final decision in the matter, which came to be rejected vide communication dated 15.10.2014. Since aforesaid order was not communicated to the petitioner, he again sent a detailed representation on 21.02.2017, specifically raising query from the respondents that why action till date has not been taken pursuant to communication dated 31.07.2013. After taking note of the aforesaid communication, the Joint Secretary, Higher Education submitted the case of the petitioner to Director and asked him to send the case back after examination. After taking note of the aforesaid communication, the Joint Secretary, Higher Education submitted the case of the petitioner to Director and asked him to send the case back after examination. The Joint Director of Higher Education, after following the direction of this Court in CWP No. 9094/2013, asked the petitioner to resubmit the entire information on new prescribed form No. (i) to (vi) and the same was submitted by the petitioner on 17.04.2017. On 27.05.2017, Director of Higher Education submitted the case of the petitioner complete in all regards, to Additional Chief Secretary for further action, however, the same was rejected on the ground that petitioner does not meet the income criteria. Since the aforesaid order was again not communicated to the petitioner, he again applied to the authorities. Director of Higher Education vide communication dated 22.05.2019, directed the Deputy Director of Higher Education, Una to reconsider the case of the petitioner, as per prescribed proforma along with income proforma and the check list given in the new policy dated 25.03.2019. In compliance to the aforesaid direction issued by the department, petitioner again submitted an application alongwith all required documents including the income certificate as required. However, vide order dated 08.02.2021, respondents rejected the case of the petitioner on the same ground, but even at that stage, no copy of the order was communicated to the petitioner and the same was obtained by him only on 06.07.2022, that too, under Right to Information Act. In the aforesaid background, petitioner was compelled to approach this Court in the instant proceedings filed under Article 226 of the Constitution of India, praying therein for the reliefs, as have been reproduced hereinabove. 3. Precisely, the grouse of the petitioner, as has been highlighted in the present case and further canvassed by Mr. Nishant Khidtta, learned counsel representing the petitioner is that though respondents on three occasions considered the case of the petitioner for compassionate appointment, but every time, rejected the same on the same premise. Mr. Khidtta, while making this court peruse the orders dated 15.10.2014, 29.10.2014 and 08.02.2021 (Annexure P-10, P-11 & P-21), attempted to persuade this Court to agree with his contention that neither due opportunity of being heard was afforded to the petitioner nor his case was considered in light of the parameters laid down in the policy in vogue at that time. 4. Mr. 4. Mr. B.C. Verma, learned Additional Advocate General while refuting the aforesaid submissions made by learned counsel representing the petitioner, contended that since respondents considered the case of the petitioner thrice, it does not lie in the mouth of the petitioner to claim that no opportunity of hearing was afforded to him. Mr. Verma, further argued that bare perusal of the orders passed in the instant proceedings, clearly reveals that every time, the case of the petitioner was considered in terms of the policy in vogue and as such, no illegality can be said to have been committed by the respondents while rejecting the case of the petitioner for compassionate appointment. Mr. Verma, while making this Court peruse policy applied in the case of petitioner, attempted to argue that since income of the petitioner was more than the prescribed criteria, there was no occasion, if any, for the department to offer appointment on compassionate grounds to the petitioner. 5. Having heard learned counsel representing the parties and perused the material available on record vis-a-vis reasoning assigned in the impugned orders, this Court finds that the facts, as have been noticed hereinabove, are not in dispute, rather stand admitted. It is not in dispute that late father of the petitioner was in Government service and he died in harness. It is also not in dispute that at the first instance, petitioner being fully eligible applied for compassionate appointment on 02.08.2010, which prayer of him was required to be considered in terms of the policy in vogue. Having perused order dated 15.10.2014 (Annexure P-10), whereby first application filed by the petitioner came to be rejected on the ground of financial criteria, this Court finds force in the submissions of Mr. Khidtta, that afore order was passed in a slipshod manner because, neither there is any discussion with regard to income of the family of deceased employee nor with regard to parameters, which were required to be adhered to by the department, while considering the prayer made on behalf of the petitioner. If the communication dated 31.07.2013 (Annexure P-9) issued under the signatures of Director of Higher Education is perused, it reveals that at the relevant time, income of the family of the deceased employee was Rs. 1,10,660/- and while arriving at aforesaid figure, income from pension was also taken into consideration. If the communication dated 31.07.2013 (Annexure P-9) issued under the signatures of Director of Higher Education is perused, it reveals that at the relevant time, income of the family of the deceased employee was Rs. 1,10,660/- and while arriving at aforesaid figure, income from pension was also taken into consideration. Though, as per policy in vogue in the year 2013, income from pension otherwise could not be taken into consideration, while computing annual income of the applicant, but even otherwise, there appears to be merit in the contention of Mr. Nishant Khidtta, learned counsel, that petitioner was eligible to be offered appointment for the reasons that even at that relevant time, income of the petitioner was less than Rs. 1,25,000/- as has been admitted by the respondents in their reply to the petition. Similarly, this Court finds that vide order dated 29.10.2014 (Annexure P-11), respondents rejected the case of the petitioner, without assigning any reason. If the aforesaid communication is perused, it cannot be said that case of the petitioner at the relevant time was considered in light of the policy in vogue, rather in a stereotyped manner, department again reiterated that case of the petitioner cannot be accepted on account of higher income. 6. Leaving everything aside, both the aforesaid orders never came to be communicated to the petitioner. Though, Mr. B.C. Verma, learned Additional Advocate General, argued that aforesaid orders were very much in the knowledge of the petitioner, but even if it is so, where was the occasion for the department to consider the case of the petitioner time and again. Firstly, the case of the petitioner was considered in the year 2013 and thereafter in the year 2014 and lastly in the year 2021. Needless to say, with the change in income criteria in the policies starting from 2010 to 2019, every time, there was an increase in financial criteria and in that eventuality, there was otherwise no occasion, if any, for the department to re-consider the case of the petitioner, may be on his repeated applications, rather repeated applications could only be rejected on one ground that the case of the petitioner already stands rejected vide order dated 15.10.2014. However, in the case at hand, department considered the case of the petitioner thrice, but every time, instead of passing detailed/reasoned order, rejected the same on the ground that petitioner exceeds the income criteria, whereas, as has been noticed hereinabove, at the time of consideration of the case of the petitioner in the year 2014, his income was less than Rs. 1,25,000/-. If it is so, his case otherwise could not have been rejected for compassionate appointment. Lastly, the case of the petitioner came to be rejected on 08.02.2021 (Annexure P-21). Perusal of the aforesaid order clearly reveals that the case of the petitioner came to be scrutinized by the Screening Committee constituted at Directorate level in terms of Government Notification dated 07.03.2019 and 01.11.2019 and the petitioner was found unfit on account of his having exceeded income criteria. Annexures annexed with the aforesaid communication (available at page Nos. 87 & 88) nowhere reveal discussion, if any, with regard to income of the petitioner vis-a-vis income criteria provided in the policy of 2019 and as such, this Court is compelled to draw a conclusion that aforesaid orders came to be passed in a slipshod manner, without any application of mind, rather authorities in routine manner as they had been doing since the year 2013, again rejected the case of the petitioner without holding proper inquiry. 7. Leaving everything aside, this Court is of the view that since death of father of the petitioner had taken place in the year 2009, case of the petitioner for compassionate appointment, could only be considered in light of the policy in vogue at the relevant time. Consideration, if any, of the case of the petitioner in light of policy of 2019, is of no consequence because by that time admittedly, income criteria provided in the earlier policies had under gone a sea change. Even if, it is accepted that case of the petitioner was required to be considered in light of the policy of the year 2019, petitioner ought to have been offered compassionate appointment on account of the fact that at the relevant time, income of the family of the petitioner was less than Rs. 2,50,000/- i.e. 2,42,800/- whereas, as per policy of 2019, minimum income has been fixed at Rs. 2,80,000/- which fact has been otherwise, admitted in the reply filed by the respondents. 8. 2,50,000/- i.e. 2,42,800/- whereas, as per policy of 2019, minimum income has been fixed at Rs. 2,80,000/- which fact has been otherwise, admitted in the reply filed by the respondents. 8. Consequently, in view of the detailed discussion made hereinabove, this Court finds merit in the present petition and accordingly, the same is allowed. Impugned orders dated 15.10.2014, 29.10.2014 and 08.02.2021 (Annexure P-10, Annexure P-11 & Annexure P-21) are quashed and set aside with direction to the department to consider the case of the petitioner afresh in terms of observation made hereinabove, expeditiously, preferably, within a period of four weeks. Needless to say, respondents shall afford an opportunity of hearing to the petitioner and pass a speaking order thereafter. Liberty is reserved to the petitioner to file appropriate proceedings in appropriate court, if he still remains aggrieved. 9. Petition stands disposed of in the aforesaid terms alongwith all pending applications.