CWP/5652/2020 of RADHA MOHAN Vs STATE OF HP AND ORS on 31 December 2021

1. STATE OF H.P. THROUGH ITS SECRETARY(HOME) TO THE GOVT. OF HIMACHALPRADESH, H.P. SECRETARIAT SHIMLA-171002.(HOME) TO THE GOVT. OF HIMACHALPRADESH, H.P. SECRETARIAT SHIMLA-171002.

2. STATEOFH.P.THROUGHITSSECRETARY( FINANCE) TO THE GOVT. OFHIMACHAL PRADESH, H.P. SECRETARIAT,SHIMLA-171002.SECRETARY( FINANCE) TO THE GOVT. OFHIMACHAL PRADESH, H.P. SECRETARIAT,SHIMLA-171002.

3. STATE OF H.P. THROUGH ITS JOINTSECRETARY ( HOME) TO THE GOVT. OFHIMACHAL PRADESH, H.P. SECRETARIATSHIMLA-171002.SECRETARY ( HOME) TO THE GOVT. OFHIMACHAL PRADESH, H.P. SECRETARIATSHIMLA-171002.

4. THE DIRECTOR GENERAL OF POLICE,HIMACHALPRADESH,POLICEHEADQUARTERS NIGAM VIHAR, SHIMLA,H.P.-171002.HIMACHALPRADESH,POLICEHEADQUARTERS NIGAM VIHAR, SHIMLA,H.P.-171002.

5. THESUPERINTENDENTOFPOLICE,KINNAUR, DISTRICT AT RECKONG PEO,DISTRICT KINNAUR, H.P.-172107.

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.........RESPONDENTS

(BY SHRI BHARAT BHUSHAN, ADDL. ADVOCATE GENERAL WITH MR. KUNAL THAKUR, DEPUTY ADVOCATE GENERAL,FOR THE RESPONDENTS.

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This petition coming on for hearing this day-Hon'ble Mr. Justice Satyen Vaidya, delivered the following :O R D E R

By way of instant petition, the petitioner has prayedfor the following reliefs:-

i.That a writ of certiorari may kindly be passedand the orders of the respondent No.3 videAnnexure P/8 may kindly be quashed and set aside.ii.That a writ in nature of mandamus may kindlybe issued and the respondents may kindly bedirected to reconsider the case of the petitioner, andgrant him employment on compassionate grounds.

2. Case of petitioner is that his father (late Sh. RoopLal), was employed in the Department of Home with theSuperintendent of Police, Kinnaur, and had died in harness on26.03.2012. Petitioner is the only son of his father. The date ofbirth of the petitioner is 01.10.1995. At the time of death of his father, petitioner was minor and he attained the age of majorityonly on 01.10.2013.

3. Further, on attaining majority, petitioner submittedhis application for appointment on compassionate ground withrespondent No. 5, on 29.04.2015. His application remainedpending and respondent No. 4 vide communication dated17.12.2016 directed respondent No. 5, to send complete case ofthe petitioner. The prayer of the petitioner was rejected videcommunication dated 23.8.2017, Annexure P-8, which reads asunder: - " I am directed to refer to your letter No. P-3-(41)0OHT(RM)/1/2017- PHQ dated nil on the subjectcited above and to say that matter has beenexamined in this department in the light of F.D'slatest instructions No. Fin.-F-(A)-(16)-1/2013, dated24.02.2016. As per F.D's OfÏce memorandum dated24.02.2016 "No relaxation in time limit forsubmission of compassionate employment case aftercompletion of three years from the date of death ofthe deceased Government employee(s) ispermissible in terms of decision of the Hon'ble HighCourt passed on 06.10.2015 in CWP No. 9094 of2013, titled as Surinder Kumar Versus State of H.P. &Ors."The applicant has applied for job oncompassionate employment after the lapse of threeyears time period. Therefore, the claim forcompassionate employment cannot be accepted.

The enclosures so received are returned herewith inoriginal."

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

5. In reply, respondents have tried to justify the reasonfor rejection as communicated vide letter dated 23.08.2017. Ithas been averred that the request of the petitioner forcompassionate appointment was received for the first time on22.11.2016, vide U.O. Note No. SPS (UPA)/2016-Police. Accordingto the respondents, the request for compassionate appointment,made by petitioner, could not be acceded to as it was madebeyond the period prescribed in the policy i.e. three years fromthe date of death or in case of the applicant being minor on suchdate, before he/she attains the age of 21 years. The specificstand of the respondents is that as per Finance Department,OfÏce Memorandum dated 24.02.2016, no relaxation in timecould be granted for submission of compassionate appointment.Reference in this regard was also made to the judgment dated06.10.2015 of this Court in CWP No. 9094 of 2013, titled asSurinder Kumar Vs. State of H.P. and Ors.

6. Petitioner by way of rejoinder again reiterated thathis application for compassionate appointment was submittedwith Superintendent of Police, Kinnaur on 29.04.2015.

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

8. From perusal of record, the stand taken by therespondents does not appear to be genuine. The averment thatpetitioner had not submitted any application for compassionateappointment before attaining the age of 21 years, does notappear to be correct. Nothing has been placed on record to showthat any inquiry was ever made from the ofÏce ofSuperintendent of Police, Kinnaur regarding submission ofapplication for compassionate appointment dated 29.04.2015 bythe petitioner. The reply submitted by the respondents is signedby the Inspector General of Police, Police Academy Training andResearch, 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 ofthe petitioner for compassionate appointment. Respondentshave relied upon the aforesaid documents as Annexure R-1.Contents of the Annexure R-1, as relied upon by therespondents, itself belies their stand. The documents AnnexureR-1 is U.O. Note issued by the then Deputy Speaker, Himachal Pradesh, Vidhan Sabha to the Hon'ble Chief Minister of H.P. andit was specifically mentioned in the said documents that theapplicant therein had completed all formalities and documentsdeposited with the concerned department but still employmentcould not be given to her son. This by itself is evident of the factthat there was some application already submitted on behalf ofthe petitioner for compassionate appointment with concernedauthorities. That being so, it was to be clarified by respondentsthat, in fact, there was no such application pending with them asreferred to in Annexure R-1. Further, on 17.12.2016, the DirectorGeneral of Police, H.P. communicated with Superintendent ofPolice, Kinnaur, requiring him to examine the matter in respectof compassionate appointment of petitioner as nocorrespondence in that regard was available in the ofÏce ofDirector General of Police. Thereafter, the process forconsidering the grant of compassionate appointment to thepetitioner was taken forward on 28.07.2017. The OfÏce ofDeputy Inspector General of Police (H), H.P. submitted thecompassionate appointment case of the petitioner to respondentNo. 1 and the date of submission of application by the petitionerwas mentioned as 21.06.2017. Petitioner has specifically statedin para-4 of the petition that when no action was taken by the respondents on his application dated 29.04.2015, he submitteda formal application dated 21.06.2017.

10. As noticed above, in case the first application of thepetitioner was dated 21.06.2017, then which was the applicationthat was referred to in U.O. Note of the Deputy Speaker, H.P;Annexure R-1. Thus, there is substance in the submissions of thepetitioner that he had submitted his first application on29.04.2015. That being so, the ground of rejection ascommunicated vide letter dated 23.08.2017, Annexure P-8, byJoint Secretary (Home) to the Govt. of H.P. to the DirectorGeneral of Police, H.P., is against the factual position. The rightsof 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. inrespect of the grant of compassionate appointment tosons/daughters/ near relatives of a government servant whodied in harness, vide its clause-8, prescribes as under:- "8)Belatedrequestsforcompassionateappointments:Requests for grant of employmentassistance should be received in the Deptt. concernedwithin three years of the death of the Governmentservant. In case where none of the sons/daughters of thedeceased Government servant has attained majority (age of 18 years) at the time of the death of the Governmentservant, the time limit for receipt of request foremployment assistance in department concerned will be-attainment of age of 21 years by the eldest son/unmarried daughter. No relaxation will be allowed inentertaining requests beyond the above age except in thecase of sons/un-married daughter/widow of deceasedGovt. servants belonging to the difÏcult areas as laiddown in the Transfer Policy."

12. The reading of above notice clause further providesthat relaxation in entertaining request beyond the prescribedperiod can be allowed to those applicants who belong to difÏcultarea as laid down in transfer policy. Perusal of the transferpolicy "Comprehensive Guiding Principles 2013" for regulatingthe transfer of State Government employees vide its clauseNo.15, Category 'C' related to difÏcult/hard areas, which readsas under:- " Where journey on foot is 5 (five) kms and theclimatic conditions are very harsh. Remote areaswithout facilities for communication and notconnected with road".

13. Undisputedly, the petitioner belongs to village Ribba,Tehsil Moorang, District Kinnaur, H.P. and as per his specificaverment in the petition he belongs to Schedule Tribe category and is from “hard area”. This fact has not been denied by therespondents. In this view of the matter also, the case of thepetitioner required consideration for relaxation since the difÏcultand hard areas as per Category 'C' of Clause-15 of the TransferPolicy, have been bracketed in one and the same category.

14. In view of the above discussion, the petition isallowed and communication dated 23.08.2017 issued by JointSecretary (Home) to the Govt. of H.P. to the Director General ofPolice, H.P., Annexure P-8, is quashed and set aside.Respondents are directed to reconsider the case of the petitionerfor compassionate appointment, strictly in accordance with therelevant applicable policy and also observations madehereinabove, within a period of two months from the date ofthis order. No order as to costs.

The petition is, accordingly, disposed of in the aboveterms. Pending miscellaneous application(s), if any, also standdisposed of.

December 31, 2021 (sushma)

(Satyen Vaidya) Judge