IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP(T) No. 5225 of 2008 Date of decision: 06.09.2010 _________________________________________________________ Rajesh Kumar … Petitioner Versus H.P.S.E.B. … Respondent. _________________________________________________________ Coram The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting? _________________________________________________________ For the Petitioner : Mr. Dhruv Shaunak, Advocate For respondent. : Ms. Anjula Khajuria _________________________________________________________ Justice Deepak Gupta, J. (Oral) By means of this writ petition, the petitioner has prayed for the following relief: “That the respondents be directed to consider the case of the applicant for appointment to the appropriate post to which the applicant is eligible for compassionate grounds”. 2. The petitioner filed the present petition, claiming that he should be considered for appointment on compassionate grounds in terms of the policy for appointment of next of kin of the deceased employee, in case such an employee leaves his family in a situation requiring immediate assistance. 3. The admitted facts are that the father of the petitioner, Shri Rameshwar Dass, was working as Head Security Supervisor in the respondent/ Himachal Pradesh State Electricity Board (hereinafter referred to as respondent Board). Unfortunately, Shri Rameshwar Dass expired on 21.12.1996. 2 4. The petitioner filed a representation through his mother that the case of her son i.e. the present petitioner may be considered for grant of compassionate employment under the kith and kin policy. The said representation was rejected on 08.09.1997. Thereafter, another representation was made which was also rejected on 12.11.1997. The ground of rejection was that the elder brother of the petitioner was employed in Haryana Police and the petitioner could not be granted employment under the policy. Thereafter, another representation was made alongwith affidavit of the mother that the elder son who was employed in Haryana Police, was not looking after her. This representation was also rejected though it was also observed that the petitioner may apply again for grant of compassionate employment. 5. Thereafter, the petitioner filed the present petition before the erstwhile H.P. Administrative Tribunal. On abolition of The H.P. State Administrative Tribunal this petition has been transferred to this Court. The stand of the respondent Board is that the petitioner’s family is not in indigent circumstances, since the elder brother was employed in government service in Haryana Police and in terms of the clause 3(c ) of the policy, employment in such a cases can only be granted to the widow of deceased employee and not to any other person. For the decision of this case it would be necessary to refer to certain relevant clauses of the policy: (1) Policy: The employment on compassionate grounds to the dependents of Govt. servants who die while in service is not to be provided as a matter of right. It should be given only in deserving cases where the family of deceased Govt. servant is left in indigent circumstances requiring immediate means of subsistence. The concerned Administrative Departments would satisfy themselves about the 3 indigent circumstances of the family before appointment on compassionate grounds is made.” 6. A bare reading of the aforesaid clause shows that employment on compassionate ground is not to be given as a right. It is given in exceptional circumstances, requiring immediate means of subsistence. 7. Clause 5 (c ) of the policy reads as follows: (c ) In all cases where one or more members of the family are already in Government service or in employment of Autonomous bodies/ Boards/ Corporations etc., of the State/ Central Govt. employment assistance should not under any circumstances be provided to the second or third member of the family. In cases however, where the widow of the deceased Govt. servant represents or claims that her employed sons/ daughters are not supporting her, the request of employment assistance should be considered only in respect of the widow. Even compassionate appointment to the widow in such cases the opinion of the department of Personnel and Finance Department shall specifically be sought and the matter finally decided by the Council of Ministers.” 8. A bare reading of this clause leaves no manner of doubt that if any other family member is in employment, in that eventuality, such employment only be offered to the widow and not to any other member of the family. The petitioner being son is not entitled for compassionate employment, when his brother was already in employment. 9. In Umesh Kumar Nagpal v. State of Haryana, JT 1994 (3) SC 525 the Apex Court held as follows: 4 “As a rule, appointments in the public services should be made strictly on the basis of open invitation of applications and merit. No other mode of appointment nor nay other consideration is permissible. Neither the Governments not the public authorities are at liberty to follow any other procedure or re-tax the qualifications laid down by the rules for the post. However, to this general rule which is to be followed strictly in every case, there are some exceptions carved out in the interest of justice and to meet certain contingencies. One such exception is in favour of the dependents of an employee dying in harness and leaving his family in penury and without any means of livelihood. In such cases, our of pure humanitarian consideration taking into consideration the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made in the rules to provide gainful employment to one of the dependents of the deceased who may be eligible for such employment. The whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post much less a post held by the deceased.” 11. In the present case the death occurred in the year, 1996 and we are in the year, 2010. The purpose of the policy is to give employment on compassionate grounds to the dependent of a government servant who dies while in service only in deserving cases, where the family of deceased government servant is left in indigent circumstances requiring immediate means of subsistence. 5 12. It is true that the petition was filed in the year, 1996, but one can not loose sight of the fact that 12 years have elapsed and now it cannot be said that the family requires immediate assistance. In view of the above discussion, I find no merit in this petition, which is accordingly rejected. No costs. (Deepak Gupta), J. September 6, 2010 Pritam