HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No. 3811/2008 (OA No.1526/1996) Date of Decision: April 29, 2009 Shashi Bala ……. Petitioner Versus State of H.P. & Anr. …….. Respondents. Coram: The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting? Yes For the petitioner : Mr. Ramakant Sharma, Advocate with Ms. Anita Dogra, Advocate. For the respondents : Mr. R. K. Sharma, Sr. Addl.A.G. with Ms. Vivek Thakur, Addl. A.G. & Mr. Anil Jaswal, Dy.A.G. Sanjay Karol, J. (Oral) Petitioner has prayed for the following relief:- i) That the office order dated 5.7.1996 Annexure A-8 be kindly quashed/set-aside. ii) That the condition of qualifying Matriculation Examination in Second Division or qualifying 10 plus 2 examination as imposed vide Annexure A-5 and condition for passing of typing test as imposed in Annexure A-6 be kindly quashed/set-aside. iii) That the respondents be held entitled to appointment as Clerk with effect from 18.11.1987 on notional basis and the respondents be directed accordingly to ante-date the date of appointment of applicant as Clerk with effect from 18.11.1987. iv) That non-invocation of relaxation clause in favour of the applicant by the respondents be kindly held unjust and illegal. The respondents be directed to relax the conditions of qualifications/typing test by exercising the power vested in them in a judicious manner. 2 v) that the respondents be directed to release to the applicant annual increments alongwith arrears thereof till date. vi) That the entire record pertaining to the case of the applicant may be summoned for the kind perusal of this Hon’ble Tribunal. vii) that the cost of this application may also be awarded to the applicant throughout.” Petitioner’s husband was working as Peon in the office of the Deputy Commissioner, Hamirpur. He died on 6.10.1987. The present petitioner being a legal representative applied for compassionate appointment in accordance with the Governmental instructions dated 19.11.1987. The petitioner was offered appointment as a Peon which she accepted on 18.11.1987, but however, immediately made a representation to the Deputy Commissioner, Hamirpur, requesting for an appointment as a Clerk as there existed a vacancy of Class-III post. Even though the petitioner had originally applied for the post of Clerk but however, the respondents appointed her as Peon. She set her claim based on the Governmental instructions, but inspite of the recommendations by the Deputy Commissioner, Hamirpur, the Divisional Commissioner, Mandi rejected the same in terms of letter dated 1.5.1992. The petitioner approached the erstwhile Himachal Pradesh Administrative Tribunal and her petition was disposed of with the direction that the respondents reconsider her case for appointment as a Clerk. In terms of orders dated 29.6.1993 (Annexure A-4), the Financial Commissioner-cum-Secretary (Revenue) accepted her contention but ordered for her appointment as a Clerk only w.e.f. 27.11.1991. Consequently, an order was passed by the Deputy Commissioner, Hamirpur in 1993 (Annexure A-5), wherein a condition was 3 imposed that petitioner be not promoted as Sr. Assistant till she qualified the matriculation examination in second Division or qualified 10 plus 2 examination as laid down in Governmental Instructions dated 27.11.1991. Petitioner again represented to the Govt. (Annexure A-7), requesting for her appointment as Clerk w.e.f. 19.11.1987. The said representation stood rejected in terms of orders dated 5.7.1996 (Annexure A-8). She also requested for waiving off the condition of minimum educational qualification for promotion to the next higher post. Post of Senior Assistant mandates the eligibility criteria of minimum educational qualification. The condition was introduced in the year 1991. The purpose, obviously being true to improve the standard of service. It is in public interest. Hence, there is nothing wrong with the respondents laying down such conditions in the Rules. If the respondents have chosen not to exercise power of relaxation, it is for a justifiable reason. The petitioner’s prayer that the condition of qualifying the matriculation examination in second division or qualifying 10 plus 2 examination thus cannot be quashed. That the post of Clerk was vacant in the year 1987 is not in dispute. The relevant extract of the Governmental instructions dated 19.11.1987 is reproduced as under:- “8. Selective approach (b) it is not essential that a son/daughter/near relation of a deceased class-IV employee should be considered for employment against class-IV post only but can be appointed against Class-III post for which he is educationally qualified, provided a vacancy in class-III is available.” 4 That the petitioner was fully eligible and qualified for appointment to the Class-III post is also not in dispute. Why the petitioner was not considered for the said post is not evident from the record. While rejecting the petitioner’s prayer for appointment as clerk, no reasons have been assigned by the respondents. It is true that the petitioner was given appointment on compassionate grounds but nonetheless she was fully eligible for appointment to Class-III post. The petitioner had legally enforceable right for being considered for appointment, though on compassionate basis as a clerk. The respondents without any justifiable reasons did not take any action. She was forced to knock the doors of the Court and it was only thereafter the respondents took remedial measures and appointed her as Clerk but from a later date. Learned counsel for the petitioner fairly stated that the petitioner would not claim any monetary benefits and is pursuing the matter only for the purpose of notional appointment as Clerk w.e.f. 1987. The petitioner having been fully qualified and eligible for being appointed as clerk initially, she ought to have been considered for appointment as such. The respondents in any event appointed her but from a later date w.e.f. 27.11.1991. Even though the petitioner’s main prayer for dispensing with the condition of educational qualification for the next higher post cannot be granted but however, in the facts and circumstances of the present case, it is directed that her appointment as clerk, on notional basis be considered w.e.f. 18.11.1987. It is clarified that the petitioner has not claimed monetary benefits for the said period and, as such, she shall not be entitled for the same. 5 With the aforesaid observations, the present petition stands disposed of. ( Sanjay Karol ), Judge. April 29, 2009 (rana)