CWP/3798/2024 on 31 December 2024

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

CWP No.3798 of 2024

Decided on: 31st December, 2024 _________________________________________________________________ Jagdish

....Petitioner

Versus State of H.P. & Ors.

…Respondents _________________________________________________________________

Coram

Ms. Justice Jyotsna Rewal Dua

1 Whether approved for reporting? _________________________________________________________________ For the petitioner: Mr. Mehar Chand Thakur, Advocate.

For the respondents: Mr.

Balwinder Singh, Deputy Advocate General, for respondent No. 1.

Mr. Mukul Sood, Advocate, for respondents No. 2 to 4.

Jyotsna Rewal Dua, Judge

Petitioner’s case for compassionate appointment has been turned down by the respondent-Corporation on 21.08.2023 on the ground that his family income from all sources is beyond the prescribed ceiling income, hence, this petition.

2.

Facts

2(i) Petitioner’s father Sh. Kamal Dev was a regular

Whether reporters of Local Papers may be allowed to see the judgment? yes

employee of the respondent-Corporation. He died in harness as Beldar on 20.09.2020. At the time of death, Sh. Kamal Dev was survived by his children, namely Pawan Kumar & Jagdish (Sons), Kiran (Daughter) and Smt. Leela Devi (Wife). 2(ii) Petitioner, son of late Sh.Kamal Dev, applied for compassionate appointment to the respondent-Corporation in accordance with law on 14.09.2021. His case was processed by the respondent-Corporation and vide order dated 21.08.2023, it was rejected.

The rejection was on the ground that for a family consisting of four or more members, annual income limit for seeking compassionate appointment has been fixed at Rs. 2,50,000/- per annum by the Government in the Compassionate Appointment Policy, circulated on 01.11.2019. As per the said policy, in case the family members are less than four, then the annual income limit per member has been fixed at Rs.62,500/- per annum. Petitioner’s family consisted of three members, hence, his annual family income should not have exceeded Rs.1,87,500/- per annum, whereas as per the income certificate furnished by the petitioner, his annual family

income was Rs. 2,07,312/- per annum. This being higher than the prescribed limit of Rs.1,87,500/- per annum, would make him ineligible for compassionate appointment.

Feeling aggrieved, the petitioner has assailed the aforesaid order passed by the respondents in this writ petition.

3. Heard learned counsel for the parties and considered the case file.

4. In Rakesh Kumar Vs. State of Himachal Pradesh and others2, it was held that there was no rationale for not counting the married daughters as members of the family for the purpose of assessing annual family income for compassionate appointment. Relevant portion of the judgment reads as under:- “6. This Court wants to make an observation that when the deceased was survived by his wife, two sons and a daughter, then not considering the daughter to be a part of the family of the deceased so as to assess as to whether the per person annual income of the family members of the deceased falls within the prescribed limit or not, is arbitrary. Simply because the daughter is married, this does not means that she loses her identity as member of the family of her father. The Court is making this observation for the reason that it 2 CWPOA No.6065 of 2019 decided on 02.06.2022

is not as if on account of the marriage of the sons of the deceased, the wives of the sons of the deceased stand included as family members for this purpose. In case the criteria fixed by the Government is taken to its logical conclusion, then the factual position is that a girl by virtue of marriage loses her identity both as a daughter of her father as well as a member of her husband’s family, for the purpose of being counted as a family member to assess the income of the members of the deceased family for compassionate appointment. This in the considered view of the Court is arbitrary and discriminatory. There is no rationale as to why a daughter after marriage should not be counted as member of the family for the purpose of assessing the annual family income for compassionate appointment. In case the criteria so fixed by the Government is given the stamp of approval by the Court, then the Court will also become a party to this gender inequality, being practised by the State. Therefore, in these circumstances, this Court is of the considered view that the annual family income of the deceased in the present case has to be assessed by considering the strength of the family to be four, i.e., wife, two sons and a daughter. The Policy has to be read down as such. Now, if the number of the family is taken to be as four, then if a sum of Rs.1,25,000/- is divided by four, there is no dispute that individual annual income per family member comes to less than Rs.31,250/-.

7. Accordingly, this petition is allowed by holding that the act of the respondent-State considering the income of the individual family member of the deceased to be Rs.31,707/- by ignoring the daughter of the deceased,

while taking into consideration the number of the family members/dependents is arbitrary and mandamus is issued to the respondents to offer appointment to the petitioner on compassionate basis as per his qualification, as from the date of filing of the petition. The appointment of the petitioner from the said date shall be deemed to be notional for all intents and purposes, including monetary and actual benefits thereupon shall accrue to the petitioner as from the date of appointment, which shall be offered to the petitioner not later than 15th July, 2022.”

It is not in dispute that CMP(M) No.937 of 2023 (The State of Himachal Pradesh & Others Versus Rakesh Kumar), filed in the Letters Patent Appeal arising out of the aforesaid judgment, was dismissed by the Hon’ble Division Bench of this Court on 02.07.2024. Respondents had taken a stand on the previous date of hearing of this case that a Special Leave Petition had been preferred against the aforesaid decision in CMP(M) No.937 of 2023.

It is an admitted position that Hon’ble Apex Court on 11.11.2024, has dismissed SLP (Civil) Diary No(s).48949/2024, arising out of aforesaid decision, on the ground of delay, leaving the question of law open for being considered in an appropriate case.

As per the applicable policy issued vide office

memorandum dated 07.03.2019, indigency is to be assessed as under:- “Income Criteria will be an important criteria to determine indigency. The maximum ceiling of total family income to assess indigency is fixed as Rs.2,25,000/-, presuming a family of 04 persons. Even if the number of family persons exceeds 04, the family size will still be presumed to be 04. If the family members are less than 04, then income of the family would be calculated by multiplying Rs.56,250/- by the number of family members. Thus, if the family size is 03, the maximum income limit would be Rs.1,68,750/- per annum to determine indigency. If family size is 02, the income limit would be Rs.1,12,500/- per annum to determine indigency. The above income criteria has been mentioned to bring objectivity in the determination of indigency of a family/applicant.”

In the instant case, it is an admitted position that at the time of petitioner’s applying for compassionate appointed, his family consists of he himself, his brother, his mother and his sister i.e. total 04 members in all. Taking into consideration the assessment formula devised by the respondents, the family of the petitioner has to be considered as consisting of 04 persons. Thus, his family’s annual income of Rs.2,07,712/- per annum would fall within the ceiling limit of Rs.2,50,000/- per annum prescribed for family of four persons. The respondents’ decision of rejecting the case of the petitioner for employment on compassionate grounds on the ground that his family income is beyond the ceiling limit, therefore, is not justified.

5. In view of above discussion, this writ petition is allowed. Impugned decision of the respondents as contained in Annexure P-5, dated 21.08.2023, is set aside. Respondent No.2/Competent Authority is directed to consider the case of the petitioner for employment on compassionate grounds afresh strictly in light of the above observations within a period of three weeks from today. Copy of the order so passed, be also communicated to the petitioner.

The writ petition stands disposed of in the above terms, so also the pending miscellaneous application(s), if any.

Jyotsna Rewal Dua

Judge December 31, 2024 R.Atal