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Judgment
Ajay Mohan Goel, Judge
By way of this writ petition, the petitioner has prayed for the following reliefs:-
“(i)Issue a writ of mandamus or direction in the nature of writ of mandamus directing the respondents to appoint the petitioner on the post of Clerk on compassionate grounds, with all consequential benefits.”
Brief facts necessary for the adjudication of this petition are that the father of the petitioner, who was serving as a Class-IV employee on regular basis died on 22.01.2019. After the death of his father, the petitioner, on the strength of his qualifications possessed by him, applied for appointment on compassionate basis against the post of Clerk. The petitioner applied for the appointment on compassionate basis immediately after the death of his father.
In terms of Annexure P-9, Director Health Services, vide communication dated 12.01.2021, forwarded the case of the petitioner to Secretary (Health) and submitted that the case of the petitioner had been examined/scrutinized by the Committee at the Directorate level and found fit for offer of appointment in terms of the new policy/instructions dated 07.03.2019 and 01.11.2019 against the post of Clerk on contract basis, as he possessed the minimum educational qualification as per the existing R&P Rules.
Yet, the petitioner was appointed on daily wage basis vide Annexure P-11 dated 23.03.2022 against a Class-IV post on compassionate basis.
In this backdrop, the petitioner joined against a Class-IV post vide Annexure P-12 (joining letter dated 26.03.2022), but immediately, he made a representation vide Annexure P-13 (communication dated 24.05.2022) that as he had applied for the post of Clerk on compassionate basis and his case was found fit for appointment against the post of Clerk and as he had not submitted his willingness for appointment against a Class-IV post, he may be issued fresh order of appointment against the post of Clerk. However, as nothing was being done in this regard by the Department, therefore, the petitioner has approached this Court praying for the relief already enumerated hereinabove.
Learned counsel for the petitioner argued that after the death of the father of the petitioner on 22.01.2019, the petitioner immediately applied for appointment on compassionate ground. In the light of his qualifications, he applied for a Class-III post, i.e., the post of Clerk. She submitted that the petitioner had applied for a Class-III post as the policy governing appointment on compassionate basis at the relevant time so provided that the kith and kin of a deceased Class-IV employee could apply for a Class-III post also, if eligible. She submitted that the case of the petitioner for appointment on compassionate basis against a Class-III post was duly recommended. She argued that rather than offering appointment to the petitioner against a Class-III post, he was on one hand offered appointment against a Class-IV post vide Annexure P-11 dated 23.03.2022, without any option etc. having been obtained from him that his opting for a Class-IV post on daily wage basis on compassionate appointment would render him ineligible for further consideration for appointment against a Class-III post on compassionate basis, yet, within a month from the date of appointment of the petitioner, in terms of Annexure P-19 and P-20 appended with the rejoinder filed to the writ petition dated 25.04.2022, nine persons were offered appointment on compassionate basis against the post of Clerk. Learned counsel further argued that the documents appended with CMP No.20438 of 2026 demonstrate that one Shri Ajay Kumar, whose father late Shri Roshan Lal was also serving as a Class-IV employee and who had died in harness was offered appointment against a Class-III post of JOA (IT) on job trainee and in terms of office order dated 29.07.2026 also appended with the application demonstrate that later on also appointments were made against Class-III posts on compassionate grounds of incumbents mentioned therein. She thus submitted that here is a clear case of discrimination and accordingly, she prayed that the act of the respondents of not offering appointment to the petitioner against a Class-III post be declared as bad in law and the respondents be directed to offer appointment to the petitioner on compassionate basis against a Class-III post.
On the other hand, learned Additional Advocate General argued that the petitioner though applied for appointment against a Class-III post, but, when a Class-IV post was offered to him vide Annexure P-11 appended with the petition, he accepted the post without any objection. He submitted that on account of this conduct of the petitioner, he is estopped from filing and maintaining the writ petition. He further argued that the discrimination being alleged by the petitioner is totally ill-founded, because, each case of compassionate appointment has to be considered by the Department on its own merit and appointment is offered taking into consideration the number of vacancies which are existing and also of the category at the relevant time. Learned Additional Advocate General argued that after the case of the petitioner was forwarded to the Government for seeking employment assistance on compassionate ground, the Government in turn returned all the cases with the observation that majority of the required documents/certificates in all cases were beyond a period of one year from their date of issue and in case of non-employment certificate, it may not be beyond period of six months. Government accordingly sought latest documents, which was evident from Annexure R-3 appended with the reply, dated 16.03.2021. Learned Additional Advocate General also argued that thereafter this was conveyed to Chief Medical Officer, Mandi, with directions to furnish requisite documents vide letter Annexure R-4 dated 19.05.2021. He submitted that thereafter again the case of the petitioner along with the case of other applicants was forwarded to Government for seeking necessary approval for their appointment as a Clerk on compassionate grounds, but in response to the letter dated 02.07.2021, as well as other letters which were written to the Government, the Government again vide its letter dated 17.09.2021 (Annexure R-5), returned back the cases with the query as to how many posts were lying vacant in the Department of Class-III posts and Class-IV posts under the 5% quota for compassionate ground and it was also observed that if no vacancies were available, then the cases be furnished only when the vacancies were available. Learned Additional Advocate General submitted that it is evident from the reply that as 5% quota of Class-III posts had already exhausted, this factual position was conveyed to the Government by respondent No. 2 on 04.01.2022 vide Annexure R-6. Subsequently, Government through Department of Finance, revised policy for providing compassionate employment, notified on 07.03.2019, vide a memo dated 24.01.2022 and in terms of this relaxation, the cases of those incumbents who had applied for Class-III posts were required to be resubmitted after giving such incumbents an option to be considered for the post of Class-IV. He submitted that thereafter, the case of the petitioner along with 16 other cases was forwarded to the State Government for necessary approval and after the approval was granted by the Government for the appointment of such incumbents against a Class-IV post, irrespective of whether they had applied for Class-III post or Class-IV post, in relaxation of the ceiling of 5% quota, the offer of appointment was made to the petitioner, which he accepted. He submitted that in this backdrop, the contention of the petitioner that he has been discriminated against is totally incorrect and the petition therefore deserves to be dismissed.
When this case was listed on 24.06.2026, this Court passed the following order:-
“The petitioner herein, who is legal heir of a Class-IV employee of the respondent-Department who died in harness, has approached this Court seeking a mandamus for directing the respondents to offer him a Class-III post under the Compassionate Appointment Policy.
Learned Counsel for the petitioner has drawn the attention of the Court to the relevant Clause of the Policy and submitted that in terms of this Policy, i.e. Clause-11 thereof, it is mentioned that it is not essential that a son, daughter or widow of a deceased Class-IV employee should be considered for employment against Class-IV post only and she/he can be appointed against the lowest rung of Class-III post, for which he is educationally qualified etc. She further submitted that after the death of his father, the petitioner had applied for a Class-III post. In terms of appointment letter 23.03.2022 (Annexure P-11), the petitioner was offered appointment against a Class-IV post without giving him any option whether he wanted to accept the post or not. She further submitted that immediately after the offer of appointment which he had to accept on account of the circumstances of his family, which had lost a bread earner, the petitioner vide Annexure P-13, dated 24.05.2022, wrote to the Authority for offer of appointment against a Class-III post as he had not submitted his willingness for the appointment against a Class-III post. Learned Counsel also referred to Annexure P-19 and Annexure P-20, appended with the rejoinder filed by the petitioner to the reply of the Department and submitted that in terms of these two Annexures dated 25.04.2022, the appointment on compassionate basis against the post of Clerk was offered to the persons mentioned therein after the appointment of the petitioner.
Learned Assistant Advocate General to have instructions in this regard that if indeed the Compassionate Policy of the State Government provides for the appointment against a Class-III post also to the legal heir of a Class-IV post, then why the appointment was not offered to the petitioner, if indeed the petitioner had initially requested for appointment against a Class-III post, more so in light of Annexure P-19 and Annexure P-20, appended with the rejoinder, which prima facie contradict the stand of the Department in reply that 5% quota in the category of ClassIII post was not available for the adjustment of the petitioner.
As prayed for, list on 14.07.2026.”
In the light of aforesaid order, instructions were handed over by learned Advocate General received from Director, Health Services, which read as under:-
In this regard, it is submitted that all the individuals as per Annexure P-19 and P-20 attached with the re-joinder filed by the petitioner, had been offered an appointment as Class-III by the Department vide separate office orders dated 25-04-2022 on contract basis and daily waged basis respectively, in whose cases the initially approvals had factually been conveyed by the Government initially vide letter dated 12-02-2021 alongwith some other incumbents, copy enclosed as FLAG-A. However keeping in view the non-availability of vacancies of Class-III posts for direct recruitment at that relevant time, the matter remained under correspondence and finally vide letter dated 25-02-2022, copy enclosed as FLAG-B, the Government had again directed to offer appointment to such candidates as Class-III posts (approval whereof stood already conveyed) strictly as per earlier correspondence dated 12-02-2021.
It is further submitted that as per factual position on record the petitioner after the death of his father, had applied on 17-10-2019 for his appointment on compassionate grounds to the replying respondent department. Accordingly, after getting his case duly scrutinized alongwith the cases of the other similarly situate candidates through a duly constituted committee in the office of the present replying respondent on 07-01-2021, the same was further forwarded to the Government for granting necessary recommendation/approval in the matter vide letter dated 07-07-2021.
It is further submitted that after going through the complete cases including the case of the present petitioner, the Government, in turn had sought the exact vacancy position of Class-III and Class-IV posts which were under 5% quota for compassionate grounds vide its letter dated 17-09-2021. However since the overall 5% quota for Class-III and Class-IV posts for compassionate appointments had already been exhausted and further since there only become available 10 posts of Class-III for direct recruitment, against which the decision had been conveyed to appoint the persons approval to which stood already conveyed vide letter dated 12-02-2021, keeping in view all the above aspects, the Government vide office memorandum dated 24-01-2022, copy enclosed as FLAG-D, had granted certain relaxations in respect of Class-IV posts for granting appointment on compassionate grounds. Accordingly, in terms of relaxation so granted, the cases of all the 17 eligible incumbents as either applied for Class-III posts or Class-IV posts, and further recommended by the Scrutiny Committee in its meeting already held on 05-04-2021 including that of the present petitioner, were sent to the Government by the replying respondent department vide letter dated 03-03-2022, copy enclosed as FLAG-E. Accordingly, the Government, in turn vide its letter dated 11-03-2022, copy enclosed as FLAG-F. had conveyed its approval for extending assistance on compassionate grounds in favour of 17 applicants/incumbents including the present petitioner to the post of Class-IV on daily waged basis against the available vacant post in the Health Department in relaxation of the ceiling of 5% quota meant for such appointments. It is submitted that accordingly, pursuant to the above approval, the petitioner alongwith other similarly situated candidates stood offered with an appointment as Class-IV in the replying respondent department vide Office Order dated 23-3-2022, in a just and proper manner. It is further relevant to submit here that in compliance to the Office Order of his appointment dated 23-3-2022, the petitioner has also submitted his joining to the respondent No. 3. Chief Medical Officer Mandi on 26-3-2022 without any protest or precondition. In view of the above factual position, the petitioner cannot claim any parity with those as appointed against Class-III posts as per Annexure P-19 and P-20, in whose cases the approval stood already conveyed initially on 12-02-2021.”
Learned counsel for the petitioner sought time to go through the same and thereafter, filed CMP No.20438 of 2026, para-3 whereof reads as under:-
“That it is admitted fact that the applicant/ petitioner has been denied for appointment to the post of Clerk, though, he fulfills all the eligibility criterion to hold the said post and later on, his request for the change of post from Class-IV to Class-III (Clerk) has also been rejected on flimsy and irrelevant grounds; whereas, the respondent-department vide letter No. HFW-H (I) B (2) 32/80 dated 6th day of January, 2023 has allowed typing test other including to one Shri Ajay Kumar, whose father, Late Shri Roshan Lal, a Class-IV Govt. servant had since, died in harness during the course of his employment. The name of said Shri Ajay Kumar is at Serial Number 21 and after qualifying the tying test, he has now, been appointed as State Cadre Job Trainee-Junior Office Assistant (IT) vide office order No. Per (DOR)-B(I)-3/2026-L dated 29.07.2026 and posted in the Jal Shakti Vibhag, Jal Shakti Division, Shahpur, District Kangra (H.P.). Now, it is apparently clear that the applicant/ petitioner has been given discriminatory treatment by the respondents, which needs to be vacated in the interest of justice. Therefore, the above documents are required to be brought on record for just and proper adjudication of the case.”
On 11.08.2026, time was granted to the State to file reply to the said application, but needful was not done.
As this application has not been formally allowed, therefore, it is hereby ordered that CMP No.20438 of 2026 is allowed and the documents and contents thereof are taken on record.
The primary contention of the petitioner before the Court is that whereas despite being eligible for appointment against a Class-III post and his name being recommended for appointment against a Class-III post on the ground that he was fulfilling the eligibility criteria, the respondents have wrongly denied him appointment against a Class-III post, though similarly situated persons have been appointed against Class-III posts, i.e., persons whose parent(s) was also serving as a Class-IV employee, thus discriminating against the petitioner.
It is evident from appointment letter dated 23.03.2022 that the petitioner was offered the appointment against a Class-IV post without any option being sought from him that if he accepted the said post then, he will not be subsequently considered for a Class-III post.
Though learned Advocate General argued that the petitioner is estopped from maintaining this petition having accepted the Class-IV post on daily wage basis, however, this Court does not concur with the contention of the learned Additional Advocate General. In the present case, where the family had lost its bread earner in the year 2019 and the petitioner was being offered a Class-IV post in the year 2022, without any option, obviously, in such circumstances, neither did petitioner had any bargaining power equal to that of the State, nor the petitioner was in a position to exercise the option of waiting for the job in issue without there being any certainty as to when the job would become available.
One thing which this Court would like to point out at this stage itself is that heavy reliance was placed by the learned Additional Advocate General on Annexure R-6 and Annexure R-7 while submitting that the petitioner was offered appointment on account of relaxation in the policy concerned vide Annexure R-5, but, it could not be demonstrated by the learned Additional Advocate General during the course of his arguments that any consent was taken from the petitioner qua the conversion of his option from seeking appointment against a Class-III post to a Class-IV post. If in this backdrop one peruses Annexure R-7, which is office Memorandum dated 24.01.2022, one finds that in terms thereof, the relaxation in the 5% ceiling for appointment on compassionate ground was given only for Class-IV posts and it was mentioned therein that those who have applied for Class-III post "may also be given an option to be considered for the post of Class-IV on compassionate ground." It was further mentioned in this office Memorandum that "the claim of such persons who have applied for Class-III post, but appointed to a Class-IV post, would cease for the Class-III post as a result of opting for the Class-IV category."
The relevant clause of office Memorandum dated 24.01.2022, i.e. Clause 4, is quoted herein below:-
“Since, this relaxation is only for Class-IV posts, those who have applied for Class-III posts may also be given an option to be considered for the post of Class-IV on compassionate grounds. The claim of such persons who have applied for Class-III post, but appointed to the Class-IV category, would cease for the Class-III post as a result of option for the Class-IV category post.”
Thus, in terms of this clause, it was incumbent upon the Department concerned to have had firstly apprised an incumbent who had opted for a Class-III post that he could apply for appointment on compassionate basis against Class IV post in lieu of relaxation being granted by the State, but, in case he opts for the Class-IV post, then, his claim for appointment against a Class-III post would cease.
In the present case, admittedly, no such option was ever given to the petitioner and the case of the petitioner was unilaterally converted from Class-III category to Class-IV category by the Department and he was offered Class-IV post without his having actually consented to being offered a Class-IV post by giving up his claim against a Class-III post.
The instructions which were imparted by the respondent-Department on the directions issued by the Court demonstrate that all that is mentioned therein, to contradict the contention of the petitioner is that the petitioner cannot claim any parity with those who were appointed against Class-III posts as per Annexures P-19 and P-20 appended with the rejoinder, in whose cases the approval already stood conveyed initially on 12.02.2021 qua the relaxation of 5% quota.
Now, a perusal of the averments made in the reply by the respondent-Department demonstrates that it is mentioned in para 13 thereof that in terms of relaxation granted vide office Memorandum dated 24.01.2022 (Annexure R-7), the case of the petitioner along with other 16 similarly situated persons was forwarded to the Government by the replying respondent on 03.03.2022 for seeking necessary approval in the matter. Thereafter, the Government, in turn, conveyed its approval in respect of seven candidates, including the petitioner, irrespective of the fact whether they had applied for Class-III or Class-IV posts, by considering them for appointment as Class-IV employees on daily wage against available posts in relaxation of 5% quota. It is further the stand of the respondents in the reply that subsequently after this approval, the petitioner along with other similarly situated candidates was offered appointment as a Class-IV employee in the Department as per office order dated 23.03.2022.
This Court fails to understand that whereas on one hand, the petitioner who had applied for a Class-III post on compassionate appointment in the year 2019, was offered appointment as a Class-IV employee on 23.03.2022, but, immediately thereafter, in terms of Annexures P-19 and P-20 appended with the rejoinder filed persons who were similarly situated as per the petitioner i.e. whose parent(s) died in harness serving against a Class-IV post were offered appointment against a Class-III post. This was done vide office order dated 25.04.2022, which orders obviously were issued after the appointment of the petitioner.
This clearly and categorically demonstrates that as on the date when the petitioner was appointed as a Class-IV daily wager, there were posts available of Class-III category Clerks, otherwise the incumbents named in office order dated 25.04.2022 (Annexures P-19 and P-20) could not have been offered appointment on compassionate basis against the Class-III posts.
The documents which were made available for the perusal of the Court along with instructions dated 13.07.2026, inter alia, demonstrate that on 12.02.2021, cases of at least 17 candidates were recommended for appointment either against a Class-III post or a Class-IV post in the Department of Health Services. When this communication was issued, the petitioner had already applied for appointment on compassionate ground. Not only this, it is not understood as to why the case of the petitioner was not forwarded by the Department to the Secretary (Health) immediately on receipt of his case for compassionate appointment. Delay on the part of the Department in forwarding the case to the Government, resulting in the documents appended by the petitioner along with his application losing their efficacy cannot act to the disadvantage of the petitioner. The petitioner did whatever he was to do after the death of his father, i.e. submission of documents for appointment on compassionate basis. He applied for appointment on compassionate basis in the year 2019, yet his case was forwarded in terms of the reply filed by the Department to the Government on 02.07.2021. If the delay in the forwarding of the case of the petitioner by the Department to the Government is not attributable to the petitioner, then, he cannot be made to suffer for this.
Otherwise also, the act of the Department of denying appointment to the petitioner against a Class-III post being a colourable exercise of power is also evident from the fact that the appointment to candidate in terms of Annexures P-19 and P-20 were made after the petitioner was offered appointment against a Class-IV post, despite the fact that as per the respondents, approval for the appointment of the said incumbents, who were appointed vide Annexures P-19 and P-20 came much before. What prevented the Department from issuing their appointment letters, before the appointment letter of the petitioner was issued, has not been satisfactorily explained in the pleadings by the Department. The above clearly demonstrates that the Department firstly wanted to extinguish the right of the petitioner of claiming appointment against a Class-III post by appointing him against a Class-IV post and when the petitioner joined against a Class-IV post immediately thereafter Annexures P-19 and P-20 were issued and offer of appointment was made to similarly situated persons against Class-III post.
In the considered view of this Court, this fact clearly and categorically demonstrates that the petitioner indeed has been discriminated against vis-a-vis similarly situated persons.
Therefore, in light of the above observations and more so as there is no denial on the part of the respondents that none whose parent(s) were serving as a Class-IV employee was offered appointment against a Class-III post in terms of Annexures P-19 and P-20 or subsequently, this writ petition is allowed by holding that the act of the Department of offering appointment to the petitioner against a Class-IV post is bad in law. The respondents are directed to offer appointment to the petitioner also against a Class-III post with effect from the date when such appointment was offered to incumbents named in Annexures P-19 and P-20, appended with the petition.
In light of the fact that the present petition stood filed in the year 2023, consequential benefits which accrue from the said judgment shall be as from the date of the offer of appointment of the petitioner as a Class-III employee, i.e., the date when Annexures P-19 and P-20 were issued.
Pending miscellaneous applications, if any, also stand disposed of.