Point of Law: Rules for compassionate appointment were amended vide office memorandum and provision for relaxation in minimum educational qualification was omitted.

JUDGMENT :

Satyen Vaidya, J.

By way of instant petition, the petitioner has prayed for following substantive relief:-

“(i) That Annexure P-3 may be set aside/quashed and the respondents may be ordered to provide compassionate appointment to the petitioner with immediate effect.”

2. The father of petitioner was Chowkidar in respondent No.2-Corporation and had died in harness in the year 2003. Petitioner applied for compassionate appointment to respondent No.3. His case remained pending and vide letter dated 14.06.2017 Annexure P-1, he was required by respondent No.2 to complete the necessary formalities. Needful was done by him and Board of Directors of respondent No.2, in its meeting held on 27.09.2017, approved the proposal for petitioner's appointment on compassionate ground. The minimum educational qualification for the post of Beldar-cum-Chowkidar in respondent No.2-Corporation was middle pass and since the petitioner lacked such qualification, his case was referred to respondent No.1 for relaxation. Subsequently, petitioner received communication dated 23.03.2020 (Annexure P-3) from respondent No.3 which was addressed to the Special Secretary (Industries), to the Government of Himachal Pradesh, with a copy to the petitioner, stating inter alia that in the interregnum the State Government had issued office memorandum dated 07.03.2019 and now there was no provision for relaxation and thus the petitioner was advised to acquire the requisite qualification of middle pass.

3. Respondents by way of their reply have admitted that the Board of Directors of respondent No.2 had approved the case of petitioner for compassionate appointment vide its decision taken in meeting held on 27.09.2017 and the case was further forwarded to respondent No.1 seeking relaxation in the condition of minimum qualification. In response, the State Government vide letter dated 17.12.2019 had required respondent No.2 to forward the case of petitioner strictly in term of office memorandum dated 07.03.2019. It is further submitted that as per office memorandum dated 7. 03.2019, revised policy for compassionate appointment had come into force and in terms thereof, no relaxation could be granted in the minimum educational qualification. On these grounds, the case of the petitioner was closed with advise to the petitioner to obtain the necessary qualification.

4. I have heard learned counsel for the parties and have also gone through the record carefully.

5. It is contended on behalf of the petitioner that the revised policy for compassionate appointment declared vide office memorandum dated 07.03.2019, could not be applied retrospectively. It is further contended that the case of petitioner was to be governed under the Rules prevalent in the year 2003, when father of petitioner had died in harness.

6. On the other hand, learned counsel for the respondents have supported the decision of respondents by contending that even in the policy dated 10.01.1990, that was prevalent in the year 2003, the relaxation in educational qualification for Class-IV post, in genuine cases, could be granted with the approval of the cabinet.

7. Though, the claim of petitioner in respect of compassionate appointment is highly belated, but the same stands condoned by the respondents themselves by their conduct. Admittedly, respondent No.2 in the meeting of its Board of Directors held on 27.09.2017, had approved the appointment of petitioner on compassionate ground to the post of Class-IV. The appointment order could not be issued as the petitioner did not have the minimum educational qualification of middle pass and as such the relaxation in that regard was sought from respondent No.1.

8. As is evident from the contents of reply filed on behalf of respondents, the case of petitioner for relaxation was forwarded to the State Government on 02.09.2019 i.e. after almost two years from the decision of Board of Directors of respondent No.2. In the meantime, Rules for compassionate appointment were a