IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP(T) No. 7240 of 2008 Date of Decision : July 21, 2010 Sh. Jitender Kumar Petitioner Versus State of Himachal Pradesh and others Respondents Coram: The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the petitioner : Mr. Ranjan Sharma, Advocate, for the petitioner. For the respondent : Mr. Ram Murti Bisht, Deputy Advocate General for the respondents. Sanjay Karol, J. (Oral) Petitioner’s father Sh. Jai Karan died on 30.4.1999. Petitioner applied for appointment on compassionate ground. Respondents/ State has framed a policy dated 19.11.1987 (amended on 18.1.1990) providing for employment to the wards of the family members of the deceased employee on compassionate grounds. 2. There is no dispute that petitioner was offered employment as a Class-IV employee in terms of order dated Whether reports of Local Papers may be allowed to see the judgment? 2 2.7.1999 (Annexure A-5). There is also no dispute that petitioner accepted the same. However in terms of Annexure A-6 it is evident that petitioner had protested for his appointment as a Class-IV employee as he was otherwise eligible for being considered for appointment as a Clerk or any other Class-III post. In fact his case was recommended by the District Ayurveda Officer, Kangra at Dharamshala to the Director (Ayurveda) in terms of letter dated 17.11.1999 (Annexure A-9). Since the authorities did not take any action petitioner was constrained to approach the Court by filing the instant petition. 3. Noticeably in the petition it is mentioned as under:- “(e) That once the Respondents State i.e. 1 & 2 had given appointments to Mrs. Suman Kumari, a matriculate as a Clerk, on the death of her husband Dr. Ashok Kumar and also to Sh. Suman Kumar as a Clerk on the death of his father Sh. Yudhisther Sharma also as a Clerk in view of the qualifications of matriculation/10+2 possessed by the respective dependants and once these appointments were also made in the month of Aug, 1999 i.e. subsequent to the applicant then, the action of the respondents in appointing the above dependants as Clerks i.e. a Class- III posts and in appointing the applicant as a Class- IV/Peon i.e. a lower post despite being similarly situated educationally and professionally, is discriminatory and is thus unconstitutional. (f) That in-continuation to the above para, it is submitted that the action of the Respondent State in not considering the applicant for appointment at par 3 with his qualifications and his eligibility as per the R&P Rules, i.e. as a Clerk or other Class-III posts, is discriminatory when, the Respondent State had appointed one Sh. Suresh Kumar as a Clerk, Sh. Balwant Singh and Sh. Rakesh Kumar as a Clerk on the basis of their respective qualifications and moreover when their respective father had been working on Class- IV posts, whereas, the applicant’s elibibility and qualifications for appointment of a Clerk has been ignored by appointing him as a Class-IV/Peon by acting in a discriminatory, illegal, malafide and unconstitutional manner.” 4. The respondents authorities have filed the reply which is reproduced in toto as under:- “Para-1 to 5:- Need no submission being formal Para-6(i) &(ii):- Call for no submission. Para-6(iii):- Denied for want of knowledge. Para (iv):- Admitted. Para-(v) & (vi):- In reply to this para it is submitted that after the death of the applicant’s father on 30.4.1999, the applicant applied for employment on compassionate grounds vide his application dt. 11-5-99 for the post of Clerk. His application was sympathetically considered and keeping in view his family indigent circumstances he was offered the post of Class-IV vide office order No. Ay. H(B)(4)-137/97 dt. 2-7-99 and he had accepted the same and joined his duty at Ayurvedic Health Centre-Ichhi (Kangra) on 8-7-99. Para-6(vii)&(viii):- Admitted to the extent that the qualification prescribed in the R & P Rules of the post of 4 Clerk is Matric with second division or +2 pass from the recognized Board/University. But the employment on compassionate grounds to the dependants of Govt. Servants who die while in service is not to be provided as a matter of right as has been laid down in the said policy annexed to this O.A. and marked as A-6. Para-6(ix):- Admitted. Para-6 (x):- That the applicant was offered the post of Class-IV under compassionate grounds and he has accepted the same. Now he ceases to be entitled for the appointment for the post of Clerk as there is no provision in the said policy to change the post. Para-6(xi):- Admitted. Para-6(xii):- That since the applicant has accepted the post and joined on the post of Class-IV, hence, he is not entitled for change of post in view of the provision contained under clause-II of the said policy annexed to this reply. Para -6(xiii):- That there is no such provision in the policy of the Govt. hence this para is denied. Para-6(xiv):- Admitted to the extent that the respondent No. 3 had recommended the case of applicant for promotion to the post of Clerk, but the applicant does not fulfil the 5 years service condition prescribed in the relevant R & P Rules of the post of Clerk. Moreover, there is no provision in the existing policy of the Govt. to allow the applicant to change the post held by him. Therefore, the proposal dt. 17.11.99 submitted by the respondent No. 3 was considered and rejected. However, his case for promotion will be considered after acquiring eligibility for the post of Clerk as per rules. 5 Para-6(xiv)&(xv):- That the case of the applicant for promotion to the post of Clerk will be considered after acquiring eligibility as per R & P rules of the post of Clerk. Para-6(xv)&(xvi):- That as per policy of the Govt. the applicant can not be allowed to change the post. However, his case will be considered for promotion to the post of clerk at the appropriate time when he will be eligible. Para-6(xvii)(a) to (h):- That the applicant was offered the post of Class-IV on compassionate grounds and he has accepted the same and joined on 8.7.1999 at the place of his posting. As such he can not be allowed to change the post. However, his case against 10% of promotion quota will be considered after acquiring eligibility for promotion to the post of Clerk as per seniority. Para-7(i) to (v):- That as per provision of the policy known as “Employment on compassionate grounds to the dependents of Govt. servants who die while in service” the applicant was offered the post of Class-IV and he has accepted the same. Now he has requested for appointment as Clerk, which is not admissible under the above said policy. As such this O.A. is not tenable. Para-8:- That in view of the submission made above the applicant is not entitled for any relief. Para-9:- Call for no submission. Para-10:- Denied for want of knowledge. Para-11 to 13:- Call for no submission. It is therefore, respectfully prayed that keeping in view the above para-wise reply, this O.A. is not maintainable and may be dismissed in the interest of justice.” 6 5. The respondent/State has not denied the fact that similarly situated persons were given employment as Clerks on compassionate grounds under the scheme. It is also not the case of the State, as is borne out from the reply that no vacancy of Class – III post was available on the date when the petitioner’s application was considered for appointment. 6. Petitioner thus stands discriminated and his valuable right defeated. The state cannot pick and choose and in an arbitrary manner exercise the power of discretion vested in it. He was otherwise eligible for being considered for appointment on Class-III post. The petition thus needs to be allowed. While taking this view I am fortified by the decision rendered by the Apex Court in Surya Kant Kadam versus State of Karnataka and others, (2002) 9 SCC 445 as also the Division Bench of this Court in LPA No. 63 of 2008, titled as Ms. Anchna Kumari versus State of Himachal Pradesh and others, decided on 17.3.2010, copy of which is taken on record. 7. The respondent/State is thus directed to consider the petitioner’s case for appointment in the lowest rank of Class-III post as on the date when his original application for appointment on compassionate grounds was considered by the State. While doing so the respondent/State shall take into account the availability of the vacant post existing as on that date. 7 8. Needful be done within a period of twelve weeks from the date of receipt of the certified copy of the order. All consequential action shall be taken by the respondent/State within the aforesaid period. Petition stands disposed of. (Sanjay Karol), Judge. July 21, 2010 (PK)