IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No. 632/2008 Reserved on:7.5.2010 Decided on: 19.5. 2010 _____________________________________________ Vikas Dhaulta. …Petitioner. Versus State of Himachal Pradesh …Respondent. ________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1. yes. For the petitioner : Mr. Ajay Mohan Goel, Advocate. For the Respondent : Mr. R.K. Sharma, Sr. Additional Advocate General with Mr. Anil Jaswal, Dy.A.G. _____________________________________________________ Rajiv Sharma, Judge Material facts necessary for the adjudication of this petition are that petitioner’s father, who was working as District Attorney in the Vigilance Department, died in harness on 9.2.2007. Petitioner submitted application on 5.3.2007 for considering his case for appointment after the sad demise of his father on compassionate grounds. His name was considered for appointment to the post of Assistant District Attorney on compassionate grounds in relaxation of Government policy and provisions of Recruitment and 1 Whether reporters of the local papers may be allowed to see the judgment? . yes 2 Promotion Rules. He was directed vide letter dated 19.9.2007 to complete certain codal formalities. He completed all the codal formalities, which led to the issuance of appointment letter to the petitioner dated 1.12.2007, whereby petitioner was appointed to the post of Assistant District Attorney, Class-1 (Gazetted) in the pay scale of Rs. 7000-10980. Petitioner submitted his joining report on 1.12.2007. He was sent on training on 5.12.2007. However, vide notification dated 7.3.2008, petitioner was terminated. Petitioner made representation to the Principal Secretary (Home) on 19.3.2008 to recall notification dated 7.3.2008. Case of the respondent-State, in a nutshell, is that appointment of the petitioner was in contravention of the existing policy for providing appointment on compassionate grounds as well as in contravention of the Recruitment and Promotion Rules (Annexure A-10). It is further averred that decision was taken to review petitioner’s appointment on 22.2.2008 in view of policy decision dated 31.12.2007. Mr. Ajay Mohan Goel has strenuously argued that impugned notification dated 7.3.2008 is illegal, unjust, arbitrary and thus violative of Articles 14 and 16 of the Constitution of India. He then argued that his client was fully eligible to be considered for appointment to the post of Assistant District Attorney on compassionate grounds after the demise of his father on 9.2.2007. He also contended that appointment of 3 the petitioner has been made in relaxation of Government policy dealing with appointment on compassionate grounds as well as by invoking rule 19 of the Himachal Pradesh Prosecution Department, Assistant District Attorney, Class-II (Gazetted) Recruitment and Promotion Rules, 2003 (hereinafter referred to as “ the Recruitment and Promotion Rules” for brevity sake). He further contended that once a decision has been taken by the respondent on the basis of which petitioner has changed his position, respondent-State is estopped from cancelling notification dated 1.12.2007. He lastly contended that the respondent-State has decided to relax Government policy and provisions of Recruitment and Promotion Rules. Mr. R.K. Sharma, learned Senior Additional Advocate General has supported that the decision of the State whereby the appointment of petitioner to the post of Assistant District Attorney has been terminated. He then contended that petitioner case was not covered under the compassionate policy i.e. Annexure R-1 and according to him, it was also in violation of the Recruitment and Promotion Rules. He lastly contended that mother of petitioner is in Government service and there was no indigent circumstance necessitating the appointment of petitioner to the post of Assistant District Attorney. 4 I have heard the learned counsel for the parties and have perused the pleadings carefully. Petitioner’s father died in harness on 9.2.2007. Petitioner was offered appointment on 1.12.2007. The text of letter dated 19.9.2007 reads thus: “I am directed to refer to you on the subject cited above and to say that your name has been considered for appointment to the post of Assistant District Attorney on compassionate grounds in relaxation of the State Government Policy and provision of R&P Rules. Two copies of attestation forms for verifying your credentials are enclosed herewith, with the advice that the same may please be returned to the undersigned after filling up the same.” In sequel to order dated 1.12.2007, petitioner was sent on training on 5.12.2007. A bare perusal of Annexure A-5 reveals that the appointment of the petitioner was made on compassionate grounds in relaxation of the State Government policy and provisions of the Recruitment and Promotion Rules. A conscious decision had been taken by the State Government to offer appointment to the petitioner. Stand taken by the respondent in its reply is that petitioner did not fulfill certain eligibility conditions of compassionate appointment and under the Recruitment and Promotion Rules for the post of Assistant District Attorney 5 (Class-I). Respondent has not spelt out how petitioner was ineligible under the policy dealing with the appointment on compassionate grounds or under the Recruitment and Promotion Rules. It was necessary for the respondent to at least point out para of the policy on compassionate grounds or particular rule of the Recruitment and Promotion Rules, which has been violated at the time of appointment of petitioner to the post of Assistant District Attorney. The fact of the matter is that Annexure R-1 and Recruitment and Promotion Rules were in existence at the time when the petitioner was offered appointment to the post of Assistant District Attorney on 1.12.2007. In view of this, respondent was esopped from canceling the appointment of petitioner once the process had been gone into which has led to the appointment of petitioner to the post of Assistant District Attorney. Petitioner was a practicing Advocate at the time when he was offered appointment for the post in question. He has neither misled nor misrepresented the authorities when he submitted application for being considered for the post of Assistant District Attorney after the demise of his father. He has changed his position. In view of this, respondent was estopped from cancelling the appointment of the petitioner. It can safely be presumed that respondent weighed all the pros and cons at the time when appointment was offered to the petitioner on 1.12.2007. It is true that as per para 17.6 of 6 Annexure R-1, the appointment on compassionate grounds can be made only to the lower rung of Class-III and Class-IV posts. However, in this case, respondent-State had decided to relax the rigours of this clause, which led to the appointment of the petitioner. Now, as for as Recruitment and Promotion Rules are concerned, it is specifically mentioned as observed hereinabove in the appointment letter dated 1.12.2007 that the appointment has been made in relaxation of provisions of the Recruitment and Promotion Rules. Mr. Ajay Mohan Goel has drawn the attention of the Court to rule 19 of the Recruitment and Promotion Rules. It is mentioned in rule 19 that where the State Government is of the opinion that it is necessary or expedient to do so, it may, by order for reasons to be recorded in writing and in consultation with the Himachal Pradesh Public Service Commission relax any of the provisions of these rules with respect to any class or category of any person or post. It can be presumed that this exercise has been undertaken by the State Government before offering appointment to the petitioner on 1.12.2007. Mr. R.K. Sharma has also argued that services of the petitioner have been terminated as per terms and conditions contained in Annexure A-6 dated 1.12.2007. The plea raised by Mr. R.K. Sharma merits rejection. The appointment of the petitioner for all intents and purposes was on regular basis 7 since the petitioner has been appointed after relaxing the State policy dealing with the compassionate appointment and provisions of the Recruitment and Promotion Rules. Services of the petitioner could not be terminated after serving one month notice as stipulated in para 1 of notification dated 1.12.2007. Moreover, appointment of the petitioner was made on compassionate grounds and it could not be set to naught by taking arbitrary decision. Now, the Court has to advert to another ground taken by the respondent to terminate the services of the petitioner. According to the averments contained in reply, the decision to terminate the services of the petitioner was taken on 22.2.2008 on the basis of policy decision taken on 31.12.2007. According to Mr. R.K. Sharma State had decided to review all the decisions taken by the previous Government during the last six months before the new Government came into power. The Governance is a continuous process. There out to be certainty in its affairs. Rather certainty is sine qua non to maintain rule of law. The rights of the parties must crystallize after decision making process culminates in a final decision. State Government could not take a wholesale decision to review all the decisions taken by the previous Government during the last six months. This kind of policy does not augur well for democratic polity. Even assuming that a particular 8 decision has to be reviewed, it has to be done individually after due application of mind. The decision to cancel the appointment of the petitioner made on compassionate ground is also against the humane approach. Once a decision had been taken to offer appointment, the same ought not to have been cancelled the manner in which the State has done in the instant case. Their Lordships of the Hon’ble Supreme Court in Angad Dass versus Union of India and others, (2010) 3 SCC 463 have held that authority must exercise its power judiciously, according to laws and human compassion and it should not be oblivious of problems of humble and modest subordinates. Their Lordships have held as under: “People in power and authority should not easily lose equanimity, composure and appreciation for the problems of the lesser mortals. They are always expected to remember that power and authority must be judiciously exercised according to the laws and human compassion. Arrogance and vanity have no place in discharge of their official functions and duties.” Mr. R.K. Sharma has also argued that petitioner’s mother was in Government employment and in these circumstances the appointment on compassionate grounds could not be offered to the petitioner. True it is that petitioner’s mother may be in Government employment, however, this fact was within the knowledge of the State 9 Government at the time when the appointment was offered to the petitioner to the post of Assistant District Attorney. Stand taken by the respondent-State to terminate the services of the petitioner is contradictory. Firstly, the case of the respondent-State is that petitioner did not fulfill the eligibility criteria under the compassionate policy and Recruitment and Promotion Rules. Secondly, the case of the State is also that the appointment of the petitioner has been cancelled on the basis of policy decision dated 31.12.2007. What emerges from this scenario is that the services of the petitioner have not been terminated on the ground that he did not fulfill eligibility under the compassionate policy or under the Recruitment and Promotion Rules but on the basis of the wholesale decision taken by the State on 31.12.2007. The decision in the present case to terminate the services of the petitioner has not been taken on merits of the case but on the basis of policy decision dated 31.12.2007. It is reiterated that all the decisions are required to be taken by the State Government individually after due application of mind. In the instant case, wholly arbitrary decision has been taken to cancel the appointment of the petitioner by taking shield under the policy decision dated 31.12.2007. This is not permissible under the constitutional scheme. 10 Consequently, the decision of the State Government to terminate the services of the petitioner vide Annexure A-1 dated 7.3.2008 is declared illegal and arbitrary. Accordingly, the petition is allowed. Annexure A-1 dated 7.3.2008 is quashed and set aside. There shall, however, be no order as to costs. (Rajiv Sharma), Judge 19.5. 2010 *awasthi*