Bina Devi vs State of H.P. and Another

V.K. Ahuja, J.—The writ petition has been filed with the following prayers:

(i) The impugned order dated 20.7.2010 and 12.7.2010 (Annexure P-7) may kindly be quashed and set aside being wrong, illegal, arbitrary and unconstitutional being violative of Articles 14 & 16 of Constitution of India as well as policy of Government for appointment on compassionate grounds.

(ii) That the Respondents may kindly be directed to appoint the Petitioner as Helper/Chowkidar on compassionate grounds as has been recommended by the Respondent No. 3 in its letter dated 26th August, 2004.

(iii) The records of CWP(T) No. 3998 of 2008 may kindly be perused and the Respondents may be directed to produce the entire record of the case.

It appears that the Petitioner is on the third round of litigation. The application was rejected on the only ground that the husband of the Petitioner was an employee of Nahan Foundry and the same had been declared as a dying cadre. For one thing, it has to be seen that policy regarding compassionate appointment as promulgated by the government on 18th January, 1990 and clarified thereafter on several occasions, does not make any difference as to whether a government servant is in a dying cadre or not. The only expression used in the policy is ''government servant''. There is no dispute that the husband of the Petitioner was a government servant at the time of his death. In other words, it is a case of an employee dying while in government service. That apart, it is seen from Annexure P-8, order, dated 23rd December, 1989 in the matter of taking over of Nahan Foundry that "The employee taken over from erstwhile Nahan Foundry will be integrated in the cadre of corresponding categories of employees of PWD/IPH subject to provision of para-7.

In para 7, it is provided that an employee who become surplus to the requirements of the State PWD/IPH workshop shall, at first instance, be absorbed in the PWD/IPH and thereafter in other government departments or other Boards/Corporations in due course and their services shall be transferable throughout the Himachal Pradesh. Therefore, the notification would clearly show that the employee of the erstwhile Nahan Foundry had become an employee of the State Government. Whether those posts would cease to be available on account of retirement or otherwise is an irrelevant consideration in the matter of considering a case on compassionate appointment. What is relevant in that regard is only as to whether the case is covered by the policy, on the premises that the deceased employee is a government servant. That condition is satisfied in the instant case, since at the time of death of the husband of the Petitioner on 24.7.2001 he was in service, after taking over of the Nahan Foundry in the year 1989.

Learned Additional Advocate General submits that the appointment on compassionate grounds is not to be treated as a matter of right. There cannot be any quarrel with the well settled proposition. But the question is whether the Petitioner is entitled to be considered in terms of the policy. The rejection of the case of the Petitioner is only on the ground that the husband of the Petitioner belonged to Nahan Foundry-dying cadre. . As we have already held above, it is an irrelevant factor. Therefore, this writ petition is disposed of as follows:

Annexure P-7 is quashed. There will be a direction to the 2nd Respondent to consider the case of the Petitioner in terms of the policy regarding the eligibility for compassionate appointment ignoring the objection of the Nahan Foundry being a dying cadre. In the process, if it is found that the Petitioner is otherwise eligible, she shall be appointed forthwith. It is made clear that the decision, as above, will be taken by the Engineer-in-Chief/competent authority in light of the findings regarding entitlement as recorded in the communication , dated 27.10.2004 (Annexure P-4) and 26th August, 2004 from the Superintending Engineer to the Engineer-in-Chief. Needful shall be done within one month from the date of production of the copy of this judgment alongwith the recommendations of the Superintending Engineer and Engineer-in-Chief, as referred to above.

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