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2025 DIGILAW 345 (HP)

State of Himachal Pradesh v. STATE OF HP AND ORS

2025-03-11

SANDEEP SHARMA

body2025
JUDGMENT : (Sandeep Sharma, J.) By way of instant petition, petitioner has prayed for following main reliefs: “(i) Writ in the nature of mandamus may kindly be issued to the respondents to regularize he services of the petitioner from the date of her initial appointment i.e. 17.03.2022 alongwith all consequential benefits. (ii) Writ in the nature of mandamus may kindly be issued to the respondent corporation to regularize the services of the petitioner’s husband on 20/07/17 on completion of eight years of service from the date of his initial appointment on contract basis i.e. 20/07/2019 alongwith all consequential benefits.” 2. Precisely, the grouse of the petitioner, as has been highlighted in the petition and further canvassed by Mr. Suneel Awasthi, learned counsel for the petitioner is that though petitioner ought to have been appointed on regular basis on compassionate grounds, but she has been wrongly granted the appointment on daily wage basis. 3. Briefly stated facts, as emerge from the record, are that late husband of the petitioner was engaged on contract basis against the post of driver in the respondent-corporation on 20.7.2009, however, unfortunately, he expired on 29.5.2018. Since petitioner was fully dependent upon the earnings of her late husband, she filed representation for compassionate appointment with the respondent-Corporation. 4. Taking note of the adverse family circumstances of the petitioner, respondent-Corporation considered the case of the petitioner for compassionate grounds in terms of policy dated 16.4.2021, wherein provision was made to give compassionate appointment on daily wage basis. In nutshell, claim of the petitioner is that since her late husband had expired on 29.5.2018, policy of year 2019, formulated by the Government of Himachal Pradesh in as much as provision was made to grant compassionate appointment on daily wage basis ought not have been applied in the case of the petitioner, rather case of the petitioner should have been considered in terms of the policy in vogue at the time of death of her husband. 5. Pursuant to notices issued in the instant proceedings, Respondent-Corporation has filed reply, wherein facts as have been noticed herein above, have not been disputed. Claim as put forth in the petition has been sought to be defeated by the Respondent- Corporation on the ground that the policy of 2019, under which case of the petitioner was considered, there was only provision to give appointment on daily wage basis. Mr. Claim as put forth in the petition has been sought to be defeated by the Respondent- Corporation on the ground that the policy of 2019, under which case of the petitioner was considered, there was only provision to give appointment on daily wage basis. Mr. Vikas Rajput, Advocate, further submitted that though case of the petitioner has been rightly considered in terms of the policy of 2019, but even otherwise she is estopped to file petition for the reason that she has accepted the appointment on daily wage basis, without any reservations. 6. Having heard learned counsel for the parties and perused the material available on record, this Court finds that petitioner herein was found eligible for appointment on compassionate grounds on account of death of her husband, who was appointed as driver on contract basis in the year 2009. It is also not in dispute that the husband of the petitioner expired in May 2018 and as such, application, if any, filed by the petitioner for appointment on compassionate grounds was required to be considered in terms of policy prevalent in the year 2018. At the time of death of the petitioner, though policy issued by the Government of Himachal Pradesh in the year 1990, amended from time to time, was in vogue, but ultimately case of the petitioner for appointment on compassionate grounds came to be considered under the policy of 2019, wherein for the first time, provision came to be made that all appointments on compassionate grounds shall be made on daily wage basis. Admittedly, in the case at hand, petitioner has been given appointment against a Class-IV post, but question which needs to be determined in the instant proceedings is that “whether policy of 2019 could be made applicable in the case of the petitioner or not?” 7. Policy of 2019, if read in its entirety, clearly suggests that same has been formulated in continuation of policy of 1990, but at the time of death of the husband of the petitioner, there was no provision in policy of 1990, to give appointment on daily wage basis, rather amendment to that effect was made for the first time on 7.3.2019, as is evident from Annexure P-4. Alongwith aforesaid office memorandum, revised policy for providing compassionate appointment to the widow/son/daughter of the deceased employee of the State Government also came to be circulated. Alongwith aforesaid office memorandum, revised policy for providing compassionate appointment to the widow/son/daughter of the deceased employee of the State Government also came to be circulated. Clause 4 of the aforesaid policy is relevant for the adjudication of the case at hand and as such, same is reproduced herein below: “4) Post to which such appointment can be made: The compassionate appointment is to be provided basically in the department to which the deceased Govt. employee or the medically retired Government employee belonged subject to fulfilment of minimum educational qualifications and such skills as are prescribed for the post. In exceptional cases, where the post does not exist in the Department concerned, the said Department may recommend appointment in another department, to the Finance Department, subject to availability of vacancies in the concerned Department. On receiving the request, Finance Department will send the matter to the concerned Department to consider the appointment. The appointment on compassionate grounds can be made only to the lowest rung of class-IV and Class-III posts. The compassionate employment can be given against Class-III posts on Contract basis, in case the applicant has requisite qualifications prescribed for the job as per R & P Rules. In case the deceased was a daily waged worker, the employment assistance shall be given on daily wage basis only. Compassionate employment to be given against on Class-IV posts will only be on Daily Wage basis. Under no circumstances, appointment(s) should be made against the Class-III posts, which require technical/professional qualifications.” 8. As per aforesaid para, w.e.f. 7.3.2019, all appointments against the class-IV posts, were to be made on daily wage basis. Since amendment with regard to appointment on daily wage basis came to be made for the first time vide office memorandum dated 7.3.2019, there appears to be merit in the contention of the petitioner that policy of 2019, containing therein provisions to make compassionate appointment on daily wage basis, could not have been made applicable in the case of the petitioner. Since the husband of the petitioner had expired prior to issuance of the office memorandum dated 7.3.2019, and prior to afore date, there was no provision to grant appointment on compassionate grounds on daily wage basis, this Court finds merit in the present petition. 9. Since the husband of the petitioner had expired prior to issuance of the office memorandum dated 7.3.2019, and prior to afore date, there was no provision to grant appointment on compassionate grounds on daily wage basis, this Court finds merit in the present petition. 9. By now it is well settled that application for compassionate appointment is required to be decided in terms of policy prevalent at the time of death of a government employee. Reliance in this regard is placed upon judgment passed by the Hon’ble Apex Court in State of Madhya Pradesh and Ors. v. Ashish Awasthi (2022) 2 Supreme Court Cases 157 alongwith connected matter, relevant paras whereof read as under: “4. The deceased employee died on 08.10.2015. At the time of death, he was working as a work charge employee, who was paid the salary from the contingency fund. As per the policy/circular prevalent at the time of the death of the deceased employee, i.e., policy/circular No.C-3- 12/2013/1-3 dated 29.09.2014 in case of death of the employee working on work charge, his dependents/heirs were not entitled to the appointment on compassionate ground and were entitled to Rs. 2 lakhs as compensatory amount. Subsequently, the policy came to be amended vide circular dated 31.08.2016, under which even in the case of death of the work charge employee, his heirs/dependents will be entitled to the appointment on compassionate ground. Relying upon the subsequent circular/policy dated 31.08.2016, the Division Bench of the High Court has directed the appellants to consider the case of the respondent for appointment on compassionate ground. 5. As per the settled preposition of law laid down by this Court for appointment on compassionate ground, the policy prevalent at the time of death of the deceased employee only is required to be considered and not the subsequent policy. 6. In the case of Indian Bank and Ors. Vs. Promila and Anr., (2020) 2 SCC 729 , it is observed and held that claim for compassionate appointment must be decided only on the basis of relevant scheme prevalent on date of demise of the employee and subsequent scheme cannot be looked into. Similar view has been taken by this Court in the case of State of Madhya Pradesh and Ors. Vs. Amit Shrivas, (2020) 10 SCC 496 . Similar view has been taken by this Court in the case of State of Madhya Pradesh and Ors. Vs. Amit Shrivas, (2020) 10 SCC 496 . It is required to be noted that in the case of Amit Shrivas (supra) the very scheme applicable in the present case was under consideration and it was held that the scheme prevalent on the date of death of the deceased employee is only to be considered. In that view of the matter, the impugned judgment and order passed by the Division Bench is unsustainable and deserves to be quashed and set aside.” 10. Since it is quite apparent from the pleadings as well as other material adduced on record that respondent-Corporation has failed to consider case of the petitioner in terms of policy prevalent at the time of the death of the husband of the petitioner, necessary directions are required to be issued to the respondent-Corporation to consider case of the petitioner afresh in terms of policy in vogue at the time of death of her husband. 11. At the cost of repetition, it is once again observed that decision to give compassionate appointment against Class-IV post on daily wage basis came to be taken by the government on 7.3.2019 and if afore communication (Annexure P-4) is read in its entirety, it clearly reveals that the same is prospective in its application. If it is so, application of the petitioner, otherwise, was required to be considered under the policy in vogue at the time of death of the husband of the petitioner, wherein there was no provision for providing employment assistance on daily wage basis. 12. Consequently, in view of the above, present petition is allowed with a direction to the respondents to consider the case of the petitioner afresh in terms of policy in vogue at the time of death of husband of the petitioner, expeditiously, preferably, within two months. In case petitioner is found to be eligible for compassionate appointment on regular basis, she shall be given regular appointment from the due date alongwith all consequential benefits. In the aforesaid terms, present petition is disposed of alongwith pending applications, if any.