CWP/5652/2020 on 31 December 2021

O R D E R

By way of instant petition, the petitioner has prayed for the following reliefs:- i. That a writ of certiorari may kindly be passed and the orders of the respondent No.3 vide Annexure P/8 may kindly be quashed and set aside. ii. That a writ in nature of mandamus may kindly be issued and the respondents may kindly be directed to reconsider the case of the petitioner, and grant him employment on compassionate grounds.

2. Case of petitioner is that his father (late Sh. Roop Lal), was employed in the Department of Home with the Superintendent of Police, Kinnaur, and had died in harness on 26.03.2012. Petitioner is the only son of his father. The date of birth of the petitioner is 01.10.1995. At the time of death of his

father, petitioner was minor and he attained the age of majority only on 01.10.2013.

3. Further, on attaining majority, petitioner submitted his application for appointment on compassionate ground with respondent No. 5, on 29.04.2015. His application remained pending and respondent No. 4 vide communication dated 17.12.2016 directed respondent No. 5, to send complete case of the petitioner. The prayer of the petitioner was rejected vide communication dated 23.8.2017, Annexure P-8, which reads as under: - " I am directed to refer to your letter No. P-3- (41)0OHT(RM)/1/2017- PHQ dated nil on the subject cited above and to say that matter has been examined in this department in the light of F.D's latest instructions No. Fin.-F-(A)-(16)-1/2013, dated 24.02.2016. As per F.D's Office memorandum dated 24.02.2016 "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) is permissible in terms of decision of the Hon'ble High Court passed on 06.10.2015 in CWP No. 9094 of 2013, titled as Surinder Kumar Versus State of H.P. & Ors."The applicant has applied for job on compassionate employment after the lapse of three years time period. Therefore, the claim for compassionate employment cannot be accepted.

The enclosures so received are returned herewith in original."

4. Aggrieved against the said rejection, petitioner has approached this Court for reliefs as noticed above.

5. In reply, respondents have tried to justify the reason for rejection as communicated vide letter dated 23.08.2017. It has been averred that the request of the petitioner for compassionate appointment was received for the first time on 22.11.2016, vide U.O. Note No. SPS (UPA)/2016-Police. According to the respondents, the request for compassionate appointment, made by petitioner, could not be acceded to as it was made beyond the period prescribed in the policy i.e. three years from the date of death or in case of the applicant being minor on such date, before he/she attains the age of 21 years. The specific stand of the respondents is that as per Finance Department, Office Memorandum dated 24.02.2016, no relaxation in time could be granted for submission of compassionate appointment. Reference in this regard was also made to the judgment dated 06.10.2015 of this Court in CWP No. 9094 of 2013, titled as Surinder Kumar Vs. State of H.P. and Ors.

6. Petitioner by way of rejoinder again reiterated that his application for compassionate appointment was submitted with Superintendent of Police, Kinnaur on 29.04.2015.

7. I have heard learned counsel for the parties and have also gone through the record.

8. From perusal of record, the stand taken by the respondents does not appear to be genuine. The averment that petitioner had not submitted any application for compassionate appointment before attaining the age of 21 years, does not appear to be correct. Nothing has been placed on record to show that any inquiry was ever made from the office of Superintendent of Police, Kinnaur regarding submission of application for compassionate appointment dated 29.04.2015 by the petitioner. The reply submitted by the respondents is signed by the Inspector General of Police, Police Academy Training and Research, H.P. and not by the Superintendent of Police, Kinnaur.

9. Respondents have considered the U.O. Note No. SPS (UPA)/2016-Police, dated 22.11.2016, to be the first request of the petitioner for compassionate appointment. Respondents have relied upon the aforesaid documents as Annexure R-1. Contents of the Annexure R-1, as relied upon by the respondents, itself belies their stand. The documents Annexure R-1 is U.O. Note issued by the then Deputy Speaker, Himachal

Pradesh, Vidhan Sabha to the Hon'ble Chief Minister of H.P. and it was specifically mentioned in the said documents that the applicant therein had completed all formalities and documents deposited with the concerned department but still employment could not be given to her son. This by itself is evident of the fact that there was some application already submitted on behalf of the petitioner for compassionate appointment with concerned authorities. That being so, it was to be clarified by respondents that, in fact, there was no such application pending with them as referred to in Annexure R-1. Further, on 17.12.2016, the Director General of Police, H.P. communicated with Superintendent of Police, Kinnaur, requiring him to examine the matter in respect of compassionate appointment of petitioner as no correspondence in that regard was available in the office of Director General of Police. Thereafter, the process for considering the grant of compassionate appointment to the petitioner was taken forward on 28.07.2017. The Office of Deputy Inspector General of Police (H), H.P. submitted the compassionate appointment case of the petitioner to respondent No. 1 and the date of submission of application by the petitioner was mentioned as 21.06.2017. Petitioner has specifically stated in para-4 of the petition that when no action was taken by the

respondents on his application dated 29.04.2015, he submitted a formal application dated 21.06.2017.

10. As noticed above, in case the first application of the petitioner was dated 21.06.2017, then which was the application that was referred to in U.O. Note of the Deputy Speaker, H.P; Annexure R-1. Thus, there is substance in the submissions of the petitioner that he had submitted his first application on 29.04.2015. That being so, the ground of rejection as communicated vide letter dated 23.08.2017, Annexure P-8, by Joint Secretary (Home) to the Govt. of H.P. to the Director General of Police, H.P., is against the factual position. The rights of the petitioner have been prejudiced on non-existent ground, therefore, the impugned communication dated 23.08.2017, Annexure P-8, is liable to be set-aside.

11. The policy framed by the Government of H.P. in respect of the grant of compassionate appointment to sons/daughters/ near relatives of a government servant who died in harness, vide its clause-8, prescribes as under:- "8) Belated

requests

for

compassionate appointments: Requests for grant of employment assistance should be received in the Deptt. concerned within three years of the death of the Government servant. In case where none of the sons/daughters of the deceased Government servant has attained majority (age

of 18 years) at the time of the death of the Government servant, the time limit for receipt of request for employment assistance in department concerned will be attainment of age of 21 years by the eldest son/un- married daughter. No relaxation will be allowed in entertaining requests beyond the above age except in the case of sons/un-married daughter/widow of deceased Govt. servants belonging to the difficult areas as laid down in the Transfer Policy."

12. The reading of above notice clause further provides that relaxation in entertaining request beyond the prescribed period can be allowed to those applicants who belong to difficult area as laid down in transfer policy. Perusal of the transfer policy "Comprehensive Guiding Principles 2013" for regulating the transfer of State Government employees vide its clause No.15, Category 'C' related to difficult/hard areas, which reads as under:- " Where journey on foot is 5 (five) kms and the climatic conditions are very harsh. Remote areas without facilities for communication and not connected with road".

13. Undisputedly, the petitioner belongs to village Ribba, Tehsil Moorang, District Kinnaur, H.P. and as per his specific averment in the petition he belongs to Schedule Tribe category

and is from “hard area”. This fact has not been denied by the respondents. In this view of the matter also, the case of the petitioner required consideration for relaxation since the difficult and hard areas as per Category 'C' of Clause-15 of the Transfer Policy, have been bracketed in one and the same category.

14. In view of the above discussion, the petition is allowed and communication dated 23.08.2017 issued by Joint Secretary (Home) to the Govt. of H.P. to the Director General of Police, H.P., Annexure P-8, is quashed and set aside. Respondents are directed to reconsider the case of the petitioner for compassionate appointment, strictly in accordance with the relevant applicable policy and also observations made hereinabove, within a period of two months from the date of this order. No order as to costs. The petition is, accordingly, disposed of in the above terms. Pending miscellaneous application(s), if any, also stand disposed of. (Satyen Vaidya) Judge December 31, 2021 (sushma)