IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP (T) No. 7295 of 2008 Judgment reserved on: 15.12.2010 Date of decision: 21.2.2011 Pawan Kumar …Petitioner. Versus State of H.P. and others. ....Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 Yes For the Petitioner : Mr. Vikas Bhardwaj, Advocate vice Mr. Madan Thakur, Advocate. For the Respondents : Ms. Ruma Kaushik, Addl. A.G. Kuldip Singh, Judge The petitioner has prayed for quashing of communication dated 29.7.1997 Annexure A-2 vide which the case of the petitioner for compassionate appointment was returned with certain observations. The petitioner has also prayed for quashing of communication dated 21.10.1997 Annexure A-3 vide which the Superintending Engineer, Dalhousie directed the Executive Engineer, Salooni Division to take further action regarding compassionate appointment of petitioner. It has also been prayed that respondents may be directed to consider the case of the 1 Whether reporters of Local Papers may be allowed to see the Judgment ? yes 2 petitioner for appointment as Clerk on compassionate grounds alongwith all consequential benefits. 2. It has been stated by the learned Additional Advocate General that the petitioner has been promoted as Clerk on 2.3.2009. In substance, the ultimate relief prayed by the petitioner has been granted by the Department itself, therefore, the petition has become infructuous. The learned counsel for the petitioner has submitted that the claim of the petitioner is for appointment of Clerk on compassionate grounds from the very beginning and, therefore, the petition has not become infructuous even though petitioner has been promoted as Clerk on 2.3.2009. 3. The facts, in brief, are that Devi Chand, father of the petitioner had been employed as Mechanic (Work charged) in the respondent-Department and he died as such on 4.12.1994. The petitioner applied for employment as Clerk on compassionate ground in January, 1995. The petitioner had passed matriculation examination in March, 1992. 4. The petitioner being matriculate was fully hopeful that he would be appointed as Clerk on compassionate ground but the respondents kept the matter of the petitioner in abeyance. The office of respondent No.2 vide letter dated 29.7.1997 returned the case of the petitioner to respondent No.3 with some observations. The case of the petitioner was again forwarded by respondent No.5 for the post of Clerk to respondent No.3, who vide letter dated 21.10. 1997 turned down the request of the petitioner for appointment as Clerk. 3 5. The petitioner continued to agitate for his appointment as Clerk but the respondents every time ignored the petitioner and directed the petitioner to submit his application on compassionate grounds on the post of Supervisor/Peon. The petitioner and his family were facing adverse circumstances and financial hardships, as such, the petitioner had no alternative but to comply the directions of the authorities for his appointment on compassionate ground against the post of Supervisor/Peon. The respondent No.2 vide letter dated 19.7.1999 accorded approval for the appointment of petitioner as Peon on compassionate grounds. The respondent No.3 vide office order dated 3.8.1999 appointed the petitioner as Peon and was ordered to report for duty to respondent No.5. The petitioner accordingly submitted his joining report as Peon to respondent No.5. 6. The claim of the petitioner for the post of Clerk was turned down by the respondent-department on the ground that the petitioner had passed the matriculation examination in 3rd division and, therefore, petitioner was appointed as Peon on compassionate grounds. The petitioner was surprised to know that one Ashok Kumar has been given appointment as Clerk on compassionate ground by the respondent-Department in the year 1999 itself after the appointment of the petitioner on the post of Peon. Ashok Kumar was similarly situated and had passed the matriculation examination in 3rd division. The petitioner came to know that Ashok Kumar had been appointed as Clerk on the basis of the clarification contained in office memorandum dated 27.11.1991 issued by the Personnel Department of the State and endorsed by the respondent No.2 vide 4 endorsement dated 11.12.1991. As per the clarification, a matriculate candidate, irrespective of any division in matriculation examination, is eligible to be appointed as Clerk on compassionate ground. It has further been clarified that such appointment shall be subject to the condition that such employee will have to acquire the minimum qualification (matric 2nd division or 10+2 examination pass) before next promotion to the post of Senior Assistant. As such, as per the qualification and the spirit of office memorandum dated 27.11.1991, the petitioner was eligible to be appointed as Clerk on compassionate ground at the initial stage. The respondents No.2 and 3 acting arbitrarily appointed the petitioner as Peon on compassionate ground. 7. The petitioner approached the respondents to re- consider his case for appointment as Clerk in view of memorandum dated 27.11.1991. The respondents refused to re-consider the claim of the petitioner on the ground that petitioner has accepted the employment against the post of Peon. In these circumstances, the petitioner has filed the petition. 8. The petition has been contested by respondents No.1 to 6 by filing joint reply. It has been stated that petitioner was provided employment assistance against the post offered to him which he accepted by joining the post of Peon on 4.8.1999. The request for change of post cannot be allowed which was otherwise devoid of any merit at belated stage. It has been stated that the case of Ashok Kumar cannot be equated with the petitioner. Ashok Kumar had sought employment assistance for the post of Clerk on compassionate grounds and his request was duly examined 5 /considered at the Government level on merits and accepted. The petitioner sought employment assistance for the post of Peon and he accepted the same on his own volition. 9. It has also been stated that the petitioner had applied for the post of Clerk on compassionate grounds but the same was not considered because he did not possess the requisite qualifications for the post of Clerk as per Recruitment and Promotion Rules i.e. matric 2nd division or 10+2 pass. The petitioner applied for the post of Peon and this request of the petitioner was acceded to and petitioner was appointed as Peon on compassionate grounds as per the policy in vogue. The respondents have prayed for dismissal of the petition. 10. I have heard the learned counsel for the parties. The petitioner has placed on record copy of his matriculation certificate indicating that petitioner has passed matriculation examination in September, 1992 and was placed in 3rd division. The respondents in the reply have clearly stated that petitioner had applied for the post of Clerk on compassionate grounds but the same was not considered because he did not possess the requisite qualification for the post of Clerk as per the Recruitment and Promotion Rules. He was not possessing matric 2nd division or 10+2 pass. 11. The petitioner has placed on record his application Annexure A-4 addressed to Assistant Engineer, indicating that he had earlier applied for employment. He was told that he did not possess the qualification for the post of Clerk. He has requested for consideration of his case for the job of Supervisor/Peon. He has passed 10th Class in 3rd division. 6 12. The petitioner has placed on record Annexure A-7 copy of H.P. Government Department of Personnel letter dated 27.11.1991 wherein it has been stated that as per notification dated 23.7.1990 of Finance (Regulation) department of Himachal Pradesh Government Matriculation pass with 2nd division and 10+2 pass has been prescribed as requisite academic qualification for direct recruitment as Clerks. It has also been stated that after necessary discussion with the Finance (Regulation) Department of H.P. Government, it has been decided that the present system of promotion from Class-IV to the post of Clerks of Class-III with “Matric pass or Matric (only in English) and Hindi Rattan Pass” be kept applicable and minimum academic qualification for appointment in Clerk cadre on compassionate grounds be also kept prescribed as “Matric Pass” only. However, such officials, who do not possess the minimum academic qualification (Matric pass with second division or 10+2 class pass) at the time of initial appointment/promotion, shall have to acquire this minimum academic qualification before further promotion to the post of Senior Assistant. The petitioner having placed in 3rd division in matriculation examination is clearly eligible for appointment on compassionate grounds as Clerk in view of Department of Personnel letter dated 27.11.1991. 13. The respondents themselves have placed on record copy of matriculation examination, March, 1997 certificate of Ashok Kumar which indicates that Ashok Kumar has been placed in 3rd division. It has not been denied by the respondents that Ashok Kumar was appointed as Clerk on compassionate ground after the 7 petitioner who was appointed as Peon on compassionate ground. The petitioner had also applied for appointment as Clerk on compassionate ground. It is not the case of the respondents that when the case of the petitioner was considered for appointment on compassionate ground there was no post of Clerk on which he could be appointed nor the respondents have projected any other legal defence so as to deny the petitioner appointment of Clerk on compassionate grounds after the death of his father. The petitioner was appointed as Peon on 4.8.1999 and on that date he was eligible for appointment as Clerk in accordance with compassionate appointment policy read with Department of Personnel letter dated 27.11.1991. In the facts and circumstances of the case, the petitioner has been clearly discriminated by the respondents by denying him appointment as Clerk on compassionate grounds on 4.8.1999 when he was appointed Peon. The petitioner has made out a case for a direction to the respondents to consider his case for appointment as Clerk on 4.8.1999. 14. The result of the above discussion, the petition is allowed. The respondents in the light of above findings are directed to consider the case of the petitioner and appoint him as Clerk on compassionate grounds w.e.f. 4.8.1999 with all consequential benefits, such as seniority, pay fixation as Clerk in four months from the date of supply of copy of this judgment by the petitioner to the competent authority. However, the petitioner shall not be entitled to the salary of Clerk of the past period from 4.8.1999 upto 1.3.2009. ( Kuldip Singh ), February 21, 2011 Judge. (GR)