LPA/435/2012 on 28 December 2018

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. LPA No. 435 of 2012.

Decided on: 28th December, 2018 State of H.P. & Another ……Appellants. Versus Ramesh Chand & Another .…Respondents.

Coram

The Hon’ble Mr. Justice Dharam Chand Chaudhary, Judge. The Hon’ble Mr. Justice Chander Bhusan Barowalia, Judge. Whether approved for reporting?1 Yes. For the appellant : Mr. Vikas Rathore, Addl. A.G. with Mr. J.S. Guleria & Mr. Kunal Thakur, Dy. A.Gs. For the respondents : Mr. Vishwa Bhushan, Advocate for respondent No.1. Dharam Chand Chaudhary, J. (oral).

The State of Himachal Pradesh aggrieved by the judgment dated 9.12.2011, passed by learned Single Judge in CWP No. 4504 of 2009 is in appeal. The complaint is that respondent No.1-writ petitioner in the given facts and circumstances of the case could have not been directed to be considered for appointment as Clerk 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.

on regular basis on the analogy of respondent No.2 (respondent No.3 in the writ petition).

2. Admittedly, the father of respondent No.1-writ petitioner, Shri Tota Ram was on the work- charge establishment of the respondent- department and working as Beldar. He died on 12.10.2001 in harness. Respondent-writ petitioner being under matric at the relevant time, made an application for appointment on compassionate grounds. The application, he made, remained pending with respondent-Department for sufficient long time and could only be considered after a gap of about six years. In the meanwhile, he passed matriculation examination also. On consideration of the application, the respondent-writ petitioner made, he was engaged as Beldar on daily wage basis. Since the private respondent, respondent No.2 herein, allegedly a similarly situated person and whose father had expired on 18.12.2001, i.e. after the death of the father of the petitioner, was appointed as clerk on regular basis well before the engagement of the writ petitioner as Beldar on daily wage basis, therefore, against such action allegedly discriminatory, the petitioner has approached this Court by filing the writ petition for seeking a direction against the respondents to appoint him also as clerk, on daily wage basis.

3. Learned Single Judge on appreciation of the facts of the case and hearing the parties on both sides has allowed the writ petition and directed the respondents to consider the case of the petitioner for appointment to the post of clerk on the analogy of respondent No.3.

4. The respondent-State aggrieved by the judgment so passed by learned single Judge has quashed the legality and validity thereof on several grounds, however, mainly that there being no discriminatory treatment meted out to the petitioner and as he has rightly been engaged on daily wage basis as Beldar, the impugned judgment is not legally and factually sustainable. The same as such has been sought to be quashed and set aside.

5. On 28.11.2018, a direction was issued to the respondent-State to produce the Policy prevalent in the matter of making appointment on compassionate grounds at the time of death of the father of the petitioner and also as to what was the designation of late Tota Ram, his father. Learned Additional Advocate General, on instructions, submits that late Shri Tota Ram was on work-charge establishment of the respondent-Department as Beldar at the time of his death.

6. Mr. Vishwa Bhushan, Advocate, learned counsel

representing

respondent

No.1-writ petitioner has produced the copy of the Policy notified vide office memorandum No. Per(AP-II)F(4)- 4/89, dated 18th January, 1990. We have gone through the same. There was provision of providing employment on compassionate grounds on daily wage basis to the kith and kin of a deceased daily wage employee died while in service after having rendered atleast five years of service with 240 days in a calendar year. In the case in hand deceased Tota Ram, the father of the petitioner was brought on work-charge establishment and working as Beldar at the relevant time. The question arises as to whether the petitioner has to be appointed as clerk when his father at the time of his death was working as Beldar on daily wage basis. The answer to this poser in all fairness and in the ends of justice would be in negative for the reason that the petitioner was under matric at the relevant time. He may have acquired matriculation as qualification subsequently, however, the same not render him eligible for being appointed as clerk when we are considering his case in terms of the Policy, which was prevalent at the time of death of his father. Otherwise also, he cannot be said to be similarly situated person to respondent No.3 in the writ petition, who was eligible for appointment as clerk at the time of the death of his father and even his father was working as T-mate, a Class-III post in the respondent-department. The petitioner, however, could have not been appointed/engaged as Beldar on daily wage basis as respondent-department did in the case in hand because we find nothing in the Policy which authorize the competent authority to engage the kith and kin of deceased employee on work-charge establishment on daily wage . The petitioner as such deserves to be appointed as Class-IV employee in the respondent-Department on regular basis.

7. Therefore, we quash the impugned judgment to the extent the same contains a direction to the respondent to consider the case of the writ petitioner for appointment as clerk and direct them to appoint him as Class-IV employee atleast from the date on which respondent No.3 was appointed on compassionate grounds i.e.

7.9.2002. Consequential benefits be also worked out and released to the petitioner within two months from the date of production of the copy of this judgment by the petitioner before the Engineer- in-Chief, H.P.P.W.D., Shimla. The impugned judgment

stands

modified

accordingly. Consequently, the appeal is also allowed partly and stands accordingly disposed of. Pending application(s), if any, shall also stand disposed of. (Dharam Chand Chaudhary) Judge.

(Chander Bhusan Barowalia) December 28, 2018 (ps) Judge.