Mahi Pal vs State of H.P. & Ors

Jyotsna Rewal Dua , J

Notice. Ms. Seema Sharma, learned Deputy Advocate General, appears and waives service of notice on behalf of the respondents.

Looking into the nature of controversy involved in the instant matter, the matter is being heard at this stage with the consent of learned counsel for the parties.

A previous petition bearing CWPOA No.7863/2019 (Mahi Pal Vs. State of H.P. & Ors.) instituted by the petitioner was decided on 05.01.2023 with following operative directions:-

“Having observed the factual sequence of the case, one cannot lose sight of the fact that w.e.f. 7.9.2013/7.8.2015, the petitioner for all intents and purposes is working as a clerk. The impugned order dated 28.06.2016 (Annexure A-22) rescinded the office order dated 7.8.2015. The operation of impugned order dated 28.06.2016 had been stayed vide interim order dated 1.7.2016 passed in the instant case. The said order is still in force. The petitioner is still continuing as clerk. The petitioner has now spent almost 9 years as clerk. It is also seen from the record more particularly Annexure A-25 dated 9.12.2015 that the petitioner was due for appointment to the post of clerk against 20% Limited Direct Recruitment quota. His name was also sponsored for that purpose. However, he was not appointed as clerk for the reason that the petitioner was already serving as clerk w.e.f. 7.9.2013. Hence, taking holistic view of the facts and circumstances of the case and in the interest of justice, present writ petition is disposed of by directing respondent No.1-Secretary (I&PH) to the Government of Himachal Pradesh to consider the entire case of the petitioner afresh keeping in view the discussion made hereto before and also keeping in view the fact that the petitioner is continuing as clerk for past about 9 years. A fresh decision in accordance with law shall be taken by respondent No.1 within a period of 8 weeks from today after providing an opportunity of hearing to the petitioner. Interim order dated 1.7.2016 shall remain in force until the passing of order by respondent No.1. Copy of the order so passed, shall also be communicated to the petitioner. Pending miscellaneous application(s), if any, shall stand disposed of. “

Pursuant to the above directions, respondent No.1 has passed consideration order dated 19.07.2023 rejecting the case of the petitioner for his retention on the post of clerk. Following was made the basis for rejection in the impugned consideration order:-

“NOW THEREFORE, I have gone through the matter personally and thoroughly and also perused the records and fact of the case, it is observed that the compassionate employment to the legal heirs of the deceased is not a matter of right and is not a source recruitment. It is only the circumstances which lead to appointment on compassionate grounds only to deserving cases, where the family of deceased Government servant is left in indigent circumstances, requiring immediate means of subsistence. It is also fact that the petitioner was offered the appointment on compassionate grounds as Beldar (on daily wage basis) and he accepted the same and joined as such on 07.03.2006 without any protest and has never objected the same prior to filing the petition on dated 02.05.2014. i.e. after more than 8 years. Further, the policy framed for providing employment on compassionate grounds specifically provides that when a person has accepted a compassionate appointment to a particular post, it shall be treated as final. No request for change in posts will be allowed. However, this does not bar the incumbents applying and competing for jobs under State Government/Corporations/Govt. of India etc. if they have better prospects there, like other Govt. servants. The basic purpose of providing employment on compassionate grounds to bailout the family of the deceased employee from the indigent circumstances, and the indigency of the family of deceased employee is addressed by providing him employment on daily wage basis as Beldar, which is accepted by him without any protest. Therefore, the petitioner has no right at all to claim for appointment on compassionate grounds to the post of Clerk, hence, the same require rejection.”

A careful reading of the directions issued in the judgment dated 05.01.2023 and the impugned consideration order passed by respondent No.1 on 19.07.2023 makes it evident that the factors, which were directed to be kept in view while considering the case of the petitioner have not at all been referred to in the impugned order. There is no whisper at all in the impugned order about any of the aspects referred to in the operative part of the judgment dated 05.01.2023. Hence, for that reason only, the impugned order dated 19.07.2023 is set aside. Respondent No.1 is once again directed to consider the case of the petitioner in light of the directions issued in judgment dated 05.01.2023 passed in CWPOA No.7863/2019 within a period of three weeks. The order so passed shall also be communicated to the petitioner. Pending miscellaneous application(s), if any, shall also stand disposed of.