IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No. 16453 of 2008. Reserved on: 13.07.2011. Decided on 29.09.2011. _____________________________________________________ Kali Dass. …Petitioner. -Versus- Secretary (Forests), Govt. of H.P. and others. …Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. __________________________________________________________ For the petitioner. : Mr. T.C. Sharma, Advocate, for the petitioner. For the respondents. : Mr. Vikas Rathore, Deputy Advocate General with Mr. R.P. Singh, Assistant Advocate General. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge: Petitioner’s father, namely, Shri Khem Chand was engaged as a Beldar on daily wage basis w.e.f. 01.01.1990. He was regularized vide office order dated 8th January, 2003. He submitted his joining report on 24th January, 2003 in Suket Forest Division, Sundernagar. He died on 25th January, 2003. Petitioner submitted an application seeking compassionate appointment after the sad demise of his father on 25th January, 2003. Case of the petitioner remained under prolonged correspondence between various functionaries of the respondent-State. Initially, case of the petitioner for compassionate appointment was not considered only on the ground that due to model code of conduct his father’s joining could not be accepted on 23rd January, 2003. Subsequently, as 1 Whether the reporters of the local papers may be allowed to see the judgment?. No. - 2 - per the averments contained in the reply, the petitioner was offered appointment on daily wage basis, on the basis of modified instructions, dated 16.08.2005 and not as a Clerk. 2. Mr. T.C. Sharma, learned counsel for the petitioner has strenuously argued that the instructions issued on 16.08.2005 could not operate retrospectively to take away with the vested/accrued rights of the petitioner. He then argued that the petitioner’s father had already worked for more than 10 years on daily wage basis and the decision has been taken to regularize him on 8th January, 2003 and the joining was only a formality. He then argued that once the petitioner has been regularized, no separate letter was required to be issued for appointing him. 3. Mr. Vikas Rathore, learned Deputy Advocate General has vehemently argued that the petitioner has already been given appointment on daily wage basis as per latest instructions dated 16.08.2005 and since father of the petitioner was not working on regular basis, his case could only be considered for appointment on daily wage basis and not to the post of Clerk. 4. I have heard the learned counsel for the parties and gone through the pleadings carefully. 5. Petitioner’s father was regularized vide office order dated 8th January, 2003. He submitted his joining report on 24th January, 2003 in Suket Forest Division, Sundernagar. He died on 25th January, 2003. According to Mr. T.C. Sharma, learned counsel for the petitioner, the petitioner has completed all the codal formalities at the time of submitting his joining. - 3 - 6. Mr. Vikas Rathore, learned Deputy Advocate General has argued that no regular appointment letter could be issued to the petitioner, since according to him, model code of conduct has come into force w.e.f. 21.03.2003, as per Annexure R-II. There is no merit in the contention of Mr. Vikas Rathore, learned Deputy Advocate General. Petitioner’s father has been regularized and he has only to submit his joining report, which he did on 24.01.2003. No separate appointment letter was required to be issued to the petitioner. The regularization of petitioner’s father had already taken place on 8th January, 2003 and thus, imposition of model code of conduct could not come in his way. Case of the petitioner has remained under prolonged correspondence between various functionaries of the respondent-State. As per the averments contained in the reply, petitioner has been offered appointment on daily wage basis. The Court is of the considered view that instructions dated 16.08.2005 could not be applied retrospectively to deny the petitioner the right to be appointed as a Clerk. The rights of the petitioner have crystallized on the date of his father’s death, i.e., 25.01.2003. The instructions dated 16.08.2005 will apply prospectively. Consequently, action of the respondents of not considering the case of the petitioner for appointment to the post of Clerk is arbitrary. 7. Accordingly, in view of the observations and discussions made hereinabove, the petition is allowed. Respondents are directed to consider the case of petitioner for appointment on compassionate basis as per the instructions which were in vogue on 25.01.2003, within a period of three - 4 - months from today. The pending application(s), if any, also stands disposed of. No costs. (Rajiv Sharma) Judge September 29, 2011. (bhupender) - 5 - `