IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA LPA No. 40 of 2010 Date of Decision : September 12, 2011 Neema Devi Appellant Versus Chinta Devi and others Respondents Coram: The Hon’ble Mr. Justice Kurian Joseph, Chief Justice. The Hon’ble Mr. Justice Sanjay Karol, Judge. For the appellant : Mr. Devinder Sharma, Advocate, vice Mr. C. N. Singh, Advocate. For the respondents : Mr. R. K. Bawa, Advocate General with Mr. J. K. Verma, Dy. Advocate General for respondents No. 2 to 4. Justice Sanjay Karol, J. (Oral) In terms of impugned judgment dated 23.3.2010, appointment of appellant Smt. Neema Devi, made on 18.9.2007, as a part time Water Carrier in Government Primary School, Cheyori, P.O. Dogari, Tehsil Sundernagar, District Mandi stands quashed. Also there is direction to the State to consider case of Smt. Chinta Devi, private respondent No. 1 (original petitioner) for appointment to the said post. 2. In the instant appeal private respondent stands served through publication yet none has come forward to defend. 2 3. On 29.4.2010 this court passed the following order:- “Appellant submits that the private respondent has remarried and she is not residing in the area. Dasti notice. In case the appellant is continuing as of today as part time Water Carrier, she shall be permitted to continue until further orders. Post on 12th May, 2010. Copy dasti.” 4. According to Ms. Neema Devi she is still discharging her duties as a part time Water Carrier. 5. The operative portion of the impugned judgment reads as under:- “Petitioner’s husband expired on 2.7.1997. She has two children. The Gram Panchayat, Dhanyara has issued certificate to the effect that petitioner is a widow. Her income is less than Rs.7000/- per annum as per Annexure A-2. No member from her family is employed in Government/Semi Government Organization. Respondent No. 4 is divorcee. Respondents No. 1 to 3 were required to take into consideration the hardship faced by the candidates at the time of considering their candidatures. A widow has a prior right vis-à-vis divorcee. Clause 12 of the policy does not give unfettered powers to respondent (State) to make appointment to the post of Part Time Water Carrier without taking into consideration the relevant material. The only ground to deny the appointment to petitioner to the post of part-time Water Carrier is that she has failed to produce IRDP/BPL certificate. Learned counsel appearing on behalf of the parties have failed to point out that such certificate is required under the Scheme. 3 However, fact of the matter is that petitioner being widow, should have been considered for the post of Part Time Water Carrier. She was only granted one week’s time to submit IRDP/BPL certificate. This period was too short to be complied with by a widow. She had to go to the concerned Office, make an application and thereafter, certificate was to be issued. Accordingly, in view of the observations made hereinabove, the petition is allowed. The appointment of respondent No. 4 to the post of Part Time Water Carrier at Government Primary School, Cheyori, P.O. Dogari, Tehsil Sundernagar, District Mandi is quashed and set aside. Respondents No. 1 to 3 are directed to consider the case of petitioner for the post of Part Time Water Carrier at Government Primary School, Cheyori, P.O. Dogari, Tehsil Sundernagar, District Mandi within a period of four weeks from today. No costs.” 6. Facts are not in dispute. Both Smt. Neema Devi and Smt. Chinta Devi separately applied for appointment on compassionate basis, for the post in question. Smt. Neema Devi was given appointment. No doubt Smt. Chinta Devi is a widow but it also cannot be disputed that Smt. Neema Devi is a divorcee, destitute and belongs to economically weaker section of the society. Certificate (Annexure A-2) to the effect that she is below poverty line is on record. 7. Case of Smt. Neema Devi for appointment as a Part Time Water Carrier was considered by the Government on compassionate 4 basis under Proviso to Rule 12 of the scheme, relevant extract thereof is reproduced as under:- “12. Compassionate appointment: The Government will have the power of appoint any candidate as part time Water Carrier on compassionate ground without following the selection process if the candidate are widow, women deserted by their husband or otherwise destitute or handicapped and if the candidate falls below the poverty line as defined by the Rural Department from time to time. Provided that any such widow, women deserted by their husband or otherwise destitute or handicapped person were not identified as below poverty line by the Rural Development Department from time to time but who meet the eligibility criteria laid down for identification of below poverty line may also be considered in case a certificate to this effect has been issued by the concerned Sub Division Magistrate after making the enquiry through Panchayati Raj Rural Development Department.” 8. Significantly scheme does not stipulate any priority to be given to a widow over and above women who are deserted/destitutes or a handicapped person. 9. Case of Smt. Neema Devi was considered by the State Government and decision, as is evident from the record, taken by objectively considering the material, taking into account the difficulties and hardships faced by her. 5 10. It is not that case of Smt. Chinta Devi was not considered at all. It was required of her to have furnished proof of income along with her application. She did not do so. Yet opportunity was afforded to her to do the needful. Even this she failed to do within time. No doubt she subsequently placed on record material to show that she also belonged to economically weaker section of the society but then no fault can be found with the order of appointment of Smt. Neema Devi. 11. If candidates are otherwise eligible, it is for the authorities to examine comparative hardship or the attending circumstances warranting exercise of discretion in favour of a particular candidate. In the instant case, there is neither any arbitrariness in the decision making process nor has petitioner alleged any mala fides. It cannot be said that authorities exercised the power in violation of policy or have taken into consideration extraneous material/circumstances. Appellant has been successfully discharging her duties since the time of her joining. Thus the impugned judgment needs to be set aside. 12. In view of the aforesaid discussions, appeal is allowed and the impugned judgment is set aside. (Justice Kurian Joseph), Chief Justice. (Justice Sanjay Karol), Judge. September 12, 2011(PK)