Jagdish Chand vs State Of Himachal Pradesh & Ors.

Ranjan Sharma, Judge

Petitioner, Jagdish Chand, being an eligible dependant of deceased employee, had initially filed an Original Application No 4988 of 2018 before the State Administrative Tribunal; and after the abolition of Tribunal, the matter came to be transferred to this Court, as CWPOA No 5126 of 2020, seeking the following reliefs:-

Case as set by Learned Counsel is that the petitioner’s father Late Sh Krishan Dass, served as a Beldar on Daily Wage Basis since 21.02.1985 in Irrigation & Public Health Department and he was regularized as such on 01.01.1996. During the course of employment, father of the petitioner died on 17.02.2012 leaving the entire family in harness.

2(i). It is averred that after the death of his father, the petitioner Jagdish Chand, being an eligible dependent, applied for compassionate appointment on 31.08.2012 but his case was rejected by the State Authorities on 03.09.2015 [Annexure A-1] on the ground that the petitioner and his family did not meet the income criteria fixed by the State Government in terms of the Instructions issued by the State Govt between 24.08.2002 till 19.07.2014 respectively. It is averred that the aforesaid rejection order dated 03.09.2015 {Annexure A-I}, was assailed by the petitioner in Original Application No 1834 of 2016, Jagdish Chand vs State of Himachal Pradesh, on the ground that the terminal-retiral benefits paid to the family of the deceased employee could not have been taken into account for determining the income of the dependant family for compassionate employment and with the plea that once the State Government have prescribed the maximum income limit for a family consisting of four members at Rs 125,000/-and the income of the family of the deceased employee including the petitioner was Rs 74000/-, therefore the rejection was erroneous. It is averred that the aforesaid OA No 1834 of 2016, was decided by the State Administrative Tribunal on 07.05.2016 [Annexure A-2] by directing the State Authorities to examine the claim of the petitioner in the light of the judgement passed by this Court in Surinder Kumar vs State of HP and Ors {CWP No 9094 of 2013 decided on 06.10.2015}, within four weeks.

2(iii). It is averred that after passing of orders by the Tribunal dated 07.05.2016, Annexure A-2, petitioner submitted a representation to Respondent No 1 on 13.10.2016 [Annexure A-3] stating that once the income of the family of deceased employee was within prescribed limits and even otherwise, the communication dated 26.09.2017 [Annexure A-3 colly], provided that retiral/terminal benefits like Family Pension, DCRG etc., which were due to the deceased employee and were received by dependant family were to be excluded while computing the income in view of the letter dated 03.09.2015 issued by Additional Chief Secretary (IPH) and based on this, the case of petitioner was resubmitted to higher authorities but the same was again rejected by the Respondent no 2-Engineer-in-Chief on 25.04.2018 [Annexure A-4], on the ground that as per Office Memorandum dated 27.01.2016 once the deceased employee had crossed the age of 50 years at the time of his death therefore, the petitioner was not eligible for compassionate appointment.

In this backdrop, the petitioner has prayed for quashing the Rejection Orders dated 25.04.2018 [Annexure A-4] and direct the Respondents to appoint the petitioner on compassionate appointment with all consequential benefits.

Pursuant to the issuance of notice by the Tribunal on 24.09.2018, the State Authorities have filed Reply-Affidavit dated 27.12.2018 of Superintending Engineer, I & PH Circle Sundernagar [Now Jal Shakti Vibhag].

3(i). In Para 1 of Preliminary Submissions of Reply Affidavit, the State Authorities have admitted the factual matrix that father of the petitioner died on 17.02.2012 while working as a work charged Beldar and the fact that the petitioner applied for job on 31.08.2012.

High Court of H.P.^{3(ii). In Para 1 Preliminary Submissions and} Para 7 (v & vi) of Reply Affidavit, the State Authorities have averred that “the policy in force on the date of actual consideration and not the policy when application was made will be applicable in the present case’ and at the time of consideration of the case of petitioner for compassionate appointment, the Policy dated 18.01.1990 had been amended vide Memorandum dated 27.01.2016 [Annexure R-I], and as per amended compassionate appointment policy, only those eligible dependants would be considered where deceased government employee had died on or before attaining 50 years of age and accordingly, the case of the petitioner was considered under present policy dated 27.01.2016. It is averred that once the father of the petitioner, late Shri Krishan Dass had died on 17.02.2012 after having attained 50 years of age [being 59 years of age as per Date of Birth being 25.05.1952] therefore, petitioner was not eligible for compassionate appointment and his case was rejected on 25.04.2018 [Annexure P-4] and said order is legal and justified. 3(iii). Reply-Affidavit states that State Authorities have the prerogative to issue, modify or alter the policy of compassionate employment and in view of modified Policy dated 27.01.2016 [Annexure R-I] ; and the judgment passed by this Court in State of Himachal Pradesh and Others versus Sanjay Kumar along with connected matters, LPA No 77 of 2013, decided on 17.09.2013, [Annexure R-II]; and the facts that after the death of Krishan Dass, the legal heirs had received the terminal benefits of Rs 5,81,246 and the mother of petitioner was receiving the family pension of Rs 5065 per month besides having landed property and the income from other source coupled with the fact that no indigent circumstances existed and compassionate appointment cannot be claimed as a source of recruitment and in these circumstances, the State Authorities have opposed the claim of the petitioner for compassionate grounds, with the prayer for dismissing the writ petition.

In the rejoinder, the petitioner has placed on record an OM dated 07.03.2019 [Annexure A-5] superseding the OM dated 27.01.2016 [Annexure R-I], from the date it was issued on 27.01.2016. It was averred that Income Certificate dated 23.08.2013 [Annexure A-6 colly, at Pg 57] established that the income of the family [headed by his mother namely Rosansu Devi, including petitioner] from all resources was Rs 74000 per annum. It was averred that the State Authorities have applied different yardsticks for giving employment, in view of the fact that while giving employment to Ms. Sujata on 7.10.2016 (Annexure P-7, at Pg 66] whose father had died on 14.11.2010) the income criteria which was in force on the date of considering her for appointment in the year 2016 was applied (on the basis of the income limit of Rs 62500 per member which comes to Rs 1,87,500 for three members and stretches over to maximum income limit of Rs 250000 for a family consisting of four members} whereas while considering the case of the petitioner in terms of amended policy dated 27.01.2016 [Annexure R-I] and while rejecting/returning his case on 25.08.2018 [Annexure P-4] or even thereafter while returning his case on 28.06.2021/23.07.2021 [Annexure A-9], applicable maximum income limit was Rs 2,50,000 as per OM dated 01.11.2019 {at Page 78} then, the action of the State Authorities in taking into account terminal benefits which were due to deceased employee and were received by the mother of the petitioner in the month of August 2012 or such date in the year 2012, amounts to discriminatory application of norms, which was asserted to be illegal, arbitrary and unsustainable.

Heard, Mr. Pankaj Thakur and Mr. Kamal Sharma, Advocates appearing as vice counsel for the petitioner and Mr. Hemant Kumar Verma, Learned State Counsel for the respondents-State.

Taking into account the entirety of facts and circumstances and the material on record, this Court is of the considered view, that the Rejection Orders dated 25.04.2018 [Annexure A-4], denying the compassionate appointment on the ground that in terms of the Office Memorandum dated 27.01.2016 [Annexure R-1], once the deceased employee had died after having attained 50 years of age therefore, the dependant family member including the petitioner was not eligible for compassionate appointment ; and aforesaid rejection cannot pass the test of judicial scrutiny, for the following reasons:

6(i). Indisputably, the petitioner’s father Late Shri Krishan Dass served as a Beldar on Daily Wage basis from 21.02.1985 and he was regularized on 01.01.1996 and he died during the course of employment on 17.02.2012, leaving the family in harness, which consisted of five persons as per Legal Heir Certificate [at page 58 of paper book] and total income of the dependant family as per Income Certificate [Annexure A-6, at page 57 of paper book] was Rs 74,000/- per annum but the case of the petitioner for compassionate appointment was rejected on 25.04.2018 [Annexure A-4], on the ground that as per the Office Memorandum dated 27.01.2016 [Annexure R-1], once the father of the petitioner had attained the age of 50 years at the time of death {on 17.02.2012} then, dependant family member(s), including the petitioner was not eligible for compassionate appointment.

6(ii). Material on record indicates that rejection order dated 25.04.2018 [Annexure A-4], was passed the State Authorities in view of Office Memorandum dated 27.01.2016 [Annexure R-1] but once this Office Memorandum stand superseded/deleted by the State Authorities with the issuance of another Office Memorandum issued on 07.03.2019 [Annexure A-5] and in applying it retrospectively w.e.f. 27.01.2016. In this backdrop, once the very foundation leading to passing of rejection order stands deleted and becomes non-existent, then, the rejection order dated 25.04.2018 [Annexure A-4] cannot be permitted to operate and same is quashed and set-aside, entitling the petitioner to be reconsidered for compassionate

6(iii). Learned State Counsel has opposed the claim on the ground that after passing of rejection orders on 25.04.2018 [Annexure A-4], the case of petitioner was returned on 28.06.2021 / 23.07.2021 (Annexure A-9), on the ground after the death of employee, Late Shri Krishan Dass on 17.02.2012, and on the date of submitting the application for employment on 31.08.2012, the legal heirs had been paid terminal benefits of Rs 5,81,246/- and mother of the petitioner was receiving family pension of Rs 5065/- per month besides having valuable lands and deposits in savings bank and income from other sources and therefore, there were no indigent circumstances.

The above plea is misconceived and the action of State Authorities cannot sustain, for the reason, that firstly, State Authorities have admitted in Para 1 of Preliminary Submissions and Para 7 (v & vi) of Reply Affidavit that “policy in force on date when the case was actually considered and not the policy when the application was made will be applicable in present case”; and secondly, the stand in the Reply Affidavit that the case of the petitioner was considered as per the norms in force on date of consideration is in consonance with the mandate of Three Judges of the Honble Supreme Court in case of N C Santosh vs State of Karnataka & Ors, (2020) 7 SCC 617 [Para 19], mandating that the norms prevalent on the date of consideration of application should be the basis for consideration of his/her application and a dependant is disentitled to seek consideration inaccordance with norms applicable on date of death of an employee and this principle was reiterated by the Honble Supreme Court in case of State of Himachal Pradesh vs Abhishek Kumar, Civil Appeal No 2869 of 2024, decided on 20.02.2024; and thirdly, the action of the State Authorities in returning the case of the petitioner on 28.06.2021/23.07.2021 (Annexure A-9), by “taking into account the income of the dependant family existing as on the date of death of deceased employee [Late Shri Krishan Dass on 17.02.2012] and /or income of the family existing as on the date of submitting the application for employment [on 31.08.2012]” vitiates the decision making process in view of the fact that as per the stand taken by the State Authorities in Reply-Affidavit as well as the principles outlined by the Honble Supreme Court in the cases of N C Santosh and Abhishek (supra) “the policy in force on the date when the case was actually considered will be applicable in present case” and the process followed by the State Authority vitiates the decision making process ; and fourthly, the State Authorities have adopted two different yardsticks while giving the compassionate employment; and fifthly, a perusal of the material on record indicates that the State Authorities have appointed Ms. Sujata on 7.10.2016 (Annexure P-7), whose father had died on 14.11.2010 by computing income in terms of the criteria, applicable at the time of giving appointment to her in the year 2016 (revised income limit of Rs 62500/-per member, which comes to Rs 1,87,500 for three members and stretches over to maximum income limit of Rs 250000/- [at Page 71-72] for a family consisting of four members} whereas in case of the petitioner, the State Authorities have returned the case on 28.06.2021/23.07.2021 [Annexure A-9] by computing the income existing on the date of death or date of submitting application for appointment establishes pick and choose criteria, double yardsticks, rendering the state action discriminatory and unsustainable; and lastly, in instant petition, though the petitioner has laid a challenge to the rejection order dated 25.04.2018 [Annexure A-4] and even if the State Authorities have issued a communication in June / July 2021 [Annexure P-9] returning the case of the petitioner then also, once aforesaid communication was issued, but without considering the case of the petitioner it in its true perspective vitiates the decision making process regarding communication of June/July 2021, Annexure A-9. Thus, once the State Authorities have applied the norms for computing the income which existed on the date of death of deceased employee [in 2012], instead of computing the income of petitioner and other parameters by applying the norms which existed as on the date of consideration, being contrary to the admitted stand in Reply Affidavit and the mandate of law declared by the Honble Supreme Court in the cases of N C Santosh and Abhishek (supra), has resulted in depriving the petitioner of his right of consideration in terms of the Reply and the mandate of law, as discussed above. The State Authorities have not chosen to file a Sur-rejoinder and thus the averments in rejoinder remain uncontroverted. In view of the above discussion, communication issued in June/ July 2021 [Annexure A-9], is declared inoperative, qua the petitioner.

6(iv). Besides the above, Learned State Counsel has placed reliance on the judgment in the case of Sanjay Kumar ( LPA No 77 of 2013, Annexure R-II) but the aforesaid judgement is not applicable and is distinguishable, as it governs a different situation, where, the dependant of deceased employee was appointment on compassionate grounds on daily wages and he had filed a writ petition seeking change in appointment as regular Beldar, which is not the case in instant case. In view of factual distinction, the plea of Learned State Counsel is misconceived and is turned down.

6(iv). Learned State Counsel has contended that that the appointment cannot be given at this belated stage.

The above plea cannot sustain, for the reason, that the father of the petitioner Late Shri Krishan Dass on 17.02.2012. The petitioner submitted an application employment on 31.08.2012 but the State Authorities slept over the matter till passing of rejection orders on 25.04.2018, [Annexure A-4]. Feeling aggrieved, the petitioner filed an Original the Learned Tribunal and after the abolition of Tribunal, the matter was transferred to this Court as CWPOA No.5126 of 2020 and the said petition remained pending till day. Mere pendency of the petition since 2018 till day cannot be the basis so as to deprive him of the consideration, in view of the principle outlined in “Actus curiae neminem gravabit”. In these circumstances, the contention of Learned State Counsel is devoid of merit and is turned down.

No other point was argued/raised.

In view of above discussion and for the reasons recorded hereinabove, instant petition is allowed, in following terms:

In aforesaid terms, the instant petition and all pending miscellaneous application(s), if any, shall stand disposed of.