IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 1150 of 2002 Date of decision: 01.07.2008 State of H.P. & Ors. … Petitioners Versus Shiv Ram … Respondent Coram : The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the Petitioners: Mr. R.M. Bisht, Deputy Advocate General with Mr. Rajesh Mandhotra, Deputy Advocate General. For the respondent: Mr. R.D. Kaundal, Advocate. Per Deepak Gupta, J. (Oral): This petition by the State is directed against the order of the learned Tribunal whereby the learned Tribunal has issued the following directions:- “In view of above discussion, the original application is allowed. The respondents are directed to consider late Shri Dhumi Ram for ex-post-facto regularisation w.e.f. January 1, 1994 as has been done in the case of other co- workers and to give the arrears of pay, gratuity and exgratia payment to the legal heirs as may be due in accordance with the status of late Shri Dhumi Ram as workcharged Beldar. The respondents are also directed to consider the applicant for regular appointment on workcharged post in terms of the observations made 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 above. This order may be implemented within a period of three months from today.” Briefly stated, the facts of the case are that Dhumi Ram, father of the applicant, was employed as daily wage Beldar in H.P.P.W.D. Rajgarh Sub Division during the year 1979. According to the findings given by the learned Tribunal, since his appointment Dhumi Ram continuously worked for 240 days in each calendar year till his death on 13.11.1994. It will be pertinent to mention that the Apex Court in Mool Raj Upadhyaya Vs. State of H.P. and others, 1994 Supp(2) Supreme Court Cases 316, passed various directions. On the basis of directions issued, the State Government framed a policy. In this policy, the State Government proposed that daily waged employees of the State, who have completed more than ten years of uninterrupted service on daily wages as on 31.12.1993, would be given workcharged status with effect from 1.1.1994. The applicant, who is the son of Dhumi Ram filed the application claiming that his father had died after serving for more than ten years, should be given workcharged status with effect from 1.1.1994. He also prayed for exgratia payment and also prayed that he was entitled to be appointed on a regular Class- IV post in Rajgarh Sub Division on compassionate grounds. On this application, The learned Tribunal passed the aforesaid directions. The State has challenged the aforesaid order. As far as the first part of the order is concerned, we can find no fault with the same. This order is in consonance with the judgment rendered in Mool Raj Upadhyaya’s case as well as the judgment rendered by this Court in CWP No. 778 of 2006, titled State of H.P. Vs. Gauri Dutt, decided on 29.12.2007. 3 However, in so far as the direction given by the learned Tribunal whereby the respondents have been directed to consider the applicant for regular appointment on workcharge basis is concerned in terms of the observations, we are not able to agree with the same. The policy for compassionate appointment as existing at the relevant time is contained in Office Memorandum dated 16.1.1990. The policy lays down a number of criteria. The criteria are that the employee who died leaves his family in indigent circumstances; no other member of the family should be in Government service; the condition of the family should be such that providing compassionate appointment is considered necessary; there must be a post available; though, in exceptional cases even where the post does not exist, the department concerned may recommend appointment in another department. This also envisages that a post must exist. No person can claim compassionate appointment as a matter of right. Compassionate appointment is only meant to help the family tide over the difficulties which it may face due to the death of an earning member of the family. It is for the appointing authority to decide whether appointment on compassionate appointment should be given or not. Whether the appointment should be on daily wage basis/work charge basis or regular appointment is also a matter to be decided by the appointing authority. Mr. Kaundal appearing on behalf of the workman has laid great stress on Clause 2(b) of the policy which reads as follows:- “a Daily wage employee who dies while in service after having rendered atleast 5 years service which not less than 240 days on daily wage basis in a year (to be computed as an average of the number of days served in the preceding years) leaving his family in immediate need 4 of assistance. In such cases compassionate employment would be on daily wages only.” On the basis of above, Mr. Kaundal submits that it is only in the case of daily waged employees who have rendered more than 5 years of service that the next of kin hereto given the appointment on compassionate basis on daily basis. According to him in all other cases the appointment must be on regular or workcharge basis. We are not in agreement with this contention. Clause-1 of the policy itself states that employment on compassionate grounds is not to be provided as a matter of right. This compassionate appointment is to be given in a deserving cases considering the needs of the family of the deceased. A bare perusal of Clause 2(b) quoted hereinabove only shows that the next of kin of daily waged employees can only be given appointment on daily wage basis and not on regular basis. This however does not mean that the next of kin of workcharged employees must be given employment on workcharge or regular basis. This is a total misreading of the policy. As observed by us above, the purpose of the policy is to help the family tide over its difficulties. If a post is not available, the Government may decide to appoint the next of kin on daily wage basis. There is no bar to this under the policy. We are of the considered view that the policy does not mandate that the next of kin of a workcharged employee, if found eligible for compassionate appointment, must be given employment on workcharge basis only. In view of the above discussion, the writ petition is partly allowed. The order of the learned Tribunal in so far as it has directed that the respondent shall be considered for workcharged appointment 5 within three months, is set aside. The writ petition is disposed of in the aforesaid terms with no order as to costs. In view of the final disposal of the main petition, all the pending Misc. Applications, if any, shall stand disposed of and interim order, if any, shall also stand vacated. ( Deepak Gupta ), Judge. ( V.K. Ahuja ), July 01, 2008 Judge (BSS) 6