No right to change compassionate appointment from daily wage Class-IV to Class-III post after policy-compliant acceptance; barred by unchallenged policy, lack of parity with regular employee dependents, delay, laches, and no vested right.

Judgment :

Ranjan Sharma, J.

Petitioner, Anil Kumar, had initially filed CWP No. 9281 of 2011, and upon establishment of State Administrative Tribunal the matter was transferred to Tribunal and now after its abolition, the matter stands transferred to this Court, as CWPOA No.620 0f 2019, seeking the following relief(s):-

“(i). For issuing a writ of Mandamus to the respondents for appointing the petitioner as a Clerk on Compassionate Grounds instead of his present compassionate appointment as Beldar, with all consequential benefits.

FACTUAL MATRIX:

2. Grievance of the petitioner is that his father Late Shri Chanan Singh, died during service on 21.05.2004 while working as Beldar on work charge basis, in Irrigation and Public Health Department. Petitioner applied for compassionate appointment on 04.05.2006 [Annexure P-2]. He was appointed as Beldar on daily wage basis on 02.09.2006 [Annexure P-3], and he joined on 11.09.2006 as Beldar [Class-IV] on daily wage basis and continued as such on daily wage basis.

2(i). It is averred that the petitioner came across the judgment dated 05.03.2011 [Annexure P-4] passed in CWP No.972 of 2011 and connected matters, in the case of Ram Chander versus State of Himachal Pradesh & Others to assert that the State Authorities have granted the benefit of change in post to Ram Chander from daily wage Beldar [Class-IV] to Clerk [Class-III] on daily wage basis as per Orders dated 16.05.2011 [Annexure P-5]. It is further averred that similar change in post was granted to one Shri Neter Singh, who had filed O.A. No.1025 of 2007 by the State Authorities on 17.05.2010 [Annexure P-5, Colly]. In the light of the judgments in the case of Ram Chander and Neter Singh (supra), the petitioner submitted a representation on 01.09.2011 [Annexure P-6], seeking similar benefit by changing his post from daily wage Beldar [Class-IV] to daily wage Clerk [Class-III] in the Department.

In this background, the petitioner had filed the instant petition, claiming appointment as a Clerk [Class-III] on daily wage basis from the post of Daily Wage Beldar [Class-IV] on the analogy on which change in post was granted to other persons, including Ram Chander and Neter Singh, as referred to above, with all consequential benefits.

STAND OF STATE AUTHORITIES:

3. Pursuant to the issuance of notice by this Court on 04.11.2011, Respondents No.1 to 3 have filed Reply-Affidavit dated 27.02.2012 of Superintending Engineer, IPH Circle, Nahan.

3(i). Perusal of the Reply-Affidavit indicates that the father of the petitioner died on 21.05.2004 and thereafter the petitioner-Anil Kumar applied for job on compassionate grounds in May 2006 and while his application was pending, the State Government issued the modified policy vide OM dated 16.08.2005 [Annexure R-1], stipulating that, in case, the deceased employee was work charge employee or was a daily wager having rendered more than 07 year of daily wage service then in such cases, the appointment was to be offered on daily wage only. In Para 2(c) of Reply-Affidavit, the State Authorities have distinguished the cases of Ram Chander and Netar Singh by stating that respective fathers of Ram Chander and Netar Singh died while working as regular Beldar(s) and therefore, Ram Chander and Netar Singh were appointed on regular basis, on compassionate grounds as per norms and the judgments in case of Ram Chander and Netar Singh were distinguishable.

3(ii). In Para 2(d) & (i) of the Reply-Affidavit, the State Authorities have stated that the petitioner was appointed as a daily wage Beldar on 11.09.2006 whereas the instant petition was filed belatedly in the year 2011, after 5 years.

In these circumstances, a prayer is made for dismiss