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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
SANDEEP SHARMA, J.
Kamal Kishore – Petitioner
Versus
State of H.P. and Another – Respondents
C.W.P. No. 8553 of 2022
Decided On : 18-03-2024
Compassionate Appointment - Government Policy - 2013, 2019 - The court found that the petitioner's case for compassionate appointment was rejected without proper consideration of the income criteria and without affording an opportunity of hearing. The court quashed the impugned orders and directed the department to reconsider the case of the petitioner afresh in accordance with the observations made, affording an opportunity of hearing and passing a speaking order.
Fact of the Case:
The petitioner's father, a government employee, died in 2009. The petitioner, fully eligible for compassionate appointment, applied for the post of clerk. The case was considered thrice and rejected each time on the grounds of income criteria, without proper communication of the reasons for rejection to the petitioner.
Finding of the Court:
The court found that the petitioner's case was not considered in light of the policy in vogue, and the rejections were made without proper inquiry and without application of mind. The court also noted that the income criteria had changed over the years, and the petitioner's income was within the criteria at the relevant time.
Issues: The issues revolved around the proper consideration of the petitioner's case for compassionate appointment in light of the applicable government policies and the communication of reasons for rejection to the petitioner.
Ratio Decidendi: The court held that the petitioner's case should have been considered in accordance with the policy in vogue at the relevant time, and the rejections without proper inquiry and communication of reasons were unjust. The court also emphasized the importance of affording an opportunity of hearing and passing a speaking order.
Final Decision: The court allowed the petition, quashed the impugned orders, and directed the department to reconsider the petitioner's case afresh in accordance with the court's observations, affording an opportunity of hearing and passing a speaking order. The petitioner was also reserved the liberty to file appropriate proceedings if still aggrieved.
JUDGMENT :
SANDEEP SHARMA, J.
1. Being aggrieved and dissatisfied with orders dated 15.10.2014, 29.10.2014 and 08.02.2021 (Annexure P-10, Annexure P-11 & Annexure P-21), whereby prayer made on behalf of the petitioner for appointment on compassionate grounds, came to be rejected, petitioner has approached this Court in the instant proceedings filed under Article 226 of the Constitution of India, praying therein following main reliefs:
2. Precisely, the facts of the case, as emerge from the record are that father of the petitioner, i.e. Late Sh. Hans Raj, who was working as a Peon in the Education Department, Himachal Pradesh, died in harness on 16.12.2009. Immediately after death of his father, petitioner being fully eligible for compassionate appointment, applied for the post of clerk. The Deputy Director of Higher Education, submitted the case of the petitioner to the higher authorities on 22.05.2013. However, vide communication dated 18.06.2013, Joint Director sent a communication to the Deputy Director for sending the PPO alongwith calculation sheet showing the income from pension as well as from other sources in respect of the family on the date of submission of application. On 29.06.2013, petitioner submitted fresh application after removing all the objections along with PPO, Income Certificate and calculation sheet, which was further sent to the Director of Higher Education on 08.07.2013. Case of the petitioner was further sent by the Director Higher Education to Principal Secretary Education vide communication dated 31.07.2023 for taking final decision in the matter, which came to be rejected vide communication dated 15.10.2014. Since aforesaid order was not communicated to the petitioner, he again sent a detailed representation on 21.02.2017, specifically raising query from the respondents that why action till date has not been taken pursuant to communication dated 31.07.2013. After taking note of the aforesaid communication, the Joint Secretary, Higher Education submitted the case of the petitioner to Director and asked him to send the case back after examination. The Joint Director of Higher Education, after following the direction of this Court in CWP No. 9094/2013, asked the petitioner to resubmit the entire information on new prescribed form No. (i) to (vi) and the same was submitted by the petitioner on 17.04.2017. On 27.05.2017, Director of Higher Education submitted the case of the petitioner complete in all regards, to Additional Chief Secretary for further action, however, the same was rejected on the ground that petitioner does not meet the income criteria. Since the aforesaid order was again not communicated to the petitioner, he again applied to the authorities. Director of Higher Education vide communication dated 22.05.2019, directed the Deputy Director of Higher Education, Una to reconsider the case of the petitioner, as per prescribed proforma along with income proforma and the check list given in the new policy dated 25.03.2019. In compliance to the aforesaid direction issued by the department, petitioner again submitted an application alongwith all required documents including the income certificate as required. However, vide order dated 08.02.2021, respondents rejected the case of the petitioner on the same ground, but even at that stage, no copy of the order was communicated to the petitioner and the same was obtained by him only on 06.07.2022, that too, under Right to Information Act. In the aforesaid background, petitioner was compelled to approach this Court in the instant proceedings filed under Art
Proper consideration of compassionate appointment cases in accordance with the applicable government policies, affording an opportunity of hearing, and passing speaking orders.
The policy prevalent at the time of the deceased employee's death is the only criteria to be considered for compassionate appointment, and subsequent policies cannot be looked into.
The policy for compassionate appointment must evaluate criteria based on circumstances at the time of the employee's death, not subsequent income limits.
The main legal point established in the judgment is that the amended Rules of 2019 applied to pending cases, and the petitioner was eligible for compassionate appointment based on the financial condi....
Compassionate appointment is an exception and a concession, not a right, and should be made strictly in accordance with the rules. Long delays can lead to the rejection of compassionate appointments.
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