HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No. 3797/2008 (OA No.1473/1996) Date of Decision: March 10, 2009 Nirmal Singh ……. 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. K. D. Shreedhar, Advocate. For the respondents : Mr. R.K.Sharma, Sr.Addl.A.G. with Mr. Vivek Thakur, Addl.A.G. and Mr. Anil Jaswal, Dy.A.G.. Sanjay Karol, J. (Oral) The undisputed facts which emerge from the record are that late Shri Amin Chand was working as Headmaster, Govt. High School, Baldhooak in District Hamirpur, H.P. He died in harness on 8.3.1994 at the age of 57 years, and left behind two sons, two daughters and a widow. Shri Nirmal Singh Pathania, present petitioner being one of the sons of the deceased employee, represented to the Government that since the other son Shri Jagroop Singh was employed in the army and living separately and the sisters having been married, he being the only surviving male member of the family to look after his mother, be given employment on compassionate grounds. Both he and his mother wrote to the Government claiming appointment on compassionate grounds in terms of the policy contained 2 in office memorandum dated 19.11.1987 (Annexure A-2/1) and office memorandum dated Nil (Annexure A-2/2). The Government considered the request but, however, rejected the same in terms of letter dated 21.8.1995 (Annexure A-1) as also the letter dated 17.2.1995 (Annexure A-3). The same are reproduced as under:- Annexure A-1 “Subject: Regarding appointment on compassionate ground. Memo: With reference to your representation dated 8.8.1995 on the above subject, the case of your son for appointment to the post of Clerk is returned with the remarks that under the prescribed policy of the Government if any member of the family of deceased Government servant is already in service, the second member of the family cannot be provided employment. In case the wife of deceased government servant represents to the effect that her son does not look after her, then, in that case the appointment of the widow can be considered and the final decision is taken by the Cabinet only. The documents relating to the case are being returned. Sd/- Addl. Director of Education, Himachal Pradesh.” Annexure A-3 “From the perusal of your application dated 28.1.1995, it is found that you have not read and studied the documents properly and deeply. The documents submitted by you are simply misleading diverted from the facts. The points raised vide this office letter No.Shiksha- Hameer (B)E-1 (39)/94-64453-54 dated 24.12.94 be read carefully and deeply and tallied with the documents, and comparative studies be made 3 As your elder brother is already in Govt. employment the fact which is being hidden, this correspondence may please be stopped and it is not under the provisions and policy of the Govt. Documents received are returned herewith. Sd/- Disstt. Edu. Officer. Hamirpur H.P.” As is evident, the request was rejected solely for the reasons that the petitioner’s elder brother was employed with the Government. The present petition was filed on 1.9.1996 assailing the said decision. The State of Himachal Pradesh framed a policy to rehabilitate the families of such employees who die in harness. The object and purpose being to provide immediate assistance to the family members so as to ensure that the family is not reduced to a state of penury. As per the eligibility criteria, the appointment on compassionate ground can be made only against a direct recruitment quota and the candidate has to possess the minimum qualification prescribed in the Recruitment Rules. The Government has power, however, to relax the conditions and the procedural requirements and also entertain belated requests. The rejection is purely on the ground that the petitioner has a elder brother who is already in Govt. service. The relevant clause 5(c) of the office memorandum (Annexure A-2/2), on which the decision was based, is reproduced as under:- “(c) In all cases where one or more members of the family are already in Government service or in employment 4 of Autonomous bodies/ Boards/ Corporations etc., of the State/Central Government, 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 Government 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 for allowing compassionate appointment to the widow in such cases the opinion of the Department specifically be sought and the matter finally decided by the Council of Ministers.” If the same was to be considered then definitely the petitioner has no right to seek benefits under the policy. But the fact of the matter is that the respondents themselves have issued another office memorandum dated 12.12.1997, which carves out an exception to Clause 5 (c). The relevant para of the said memorandum is reproduced as under:- “After due consideration of the matter it has now been decided by the Government that the employment assistance to the dependent of the deceased Government servant shall also be provided irrespective of the fact whether one or more members of the deceased family is/are in Defence Services.” That this memorandum is in vogue is not in dispute. Mr. K. D. Shreedhar, learned counsel for the petitioner has painstakingly shown from the record that in any event the elder brother, employed in the Army had been residing separately since 1984. This is evident from the Parivar register and another documents being Annexures A-5 to A-7. 5 The decision of the Government, in the teeth of the subsequent memorandum is illegal and bad in law. The petitioner ought to have been considered for compassionate appointment in terms of the Policy. Keeping in view the aforesaid circumstances, Annexure A-3 is quashed. The respondents are directed to immediately consider the petitioner’s case in terms of its office memorandums Annexures A-2/A & A-2/2 and dated 12.12.1997. The decision shall be taken in accordance with law, after affording due opportunity of hearing to the petitioner, within a period of eight weeks from today. Needless to add, the respondents shall pass a reasoned order. The petition is allowed. ( Sanjay Karol ), Judge. March 10, 2009 (rana)