IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 6560 of 2010 Decided on: 1st December, 2010 Bina Devi Petitioner Versus State of H.P. and another Respondents Coram The Hon’ble Mr.Justice Kurian Joseph, Chief Justice The Hon’ble Mr. Justice V.K. Ahuja, Judge For the Petitioner: Mr. Bimal Gupta, Advocate For the State: Mr. R.K. Bawa, Advocate General, with Mr. Ankush Sood, Addl. A.G. ______________________________________________________ Justice V.K. Ahuja, J. (Oral) The writ petition has been filed with the following prayers:- “(i) The impugned order dated 20.7.2010 and 12.7.2010 (Annexure P-7) may kindly be quashed and set aside being wrong, illegal, arbitrary and unconstitutional being violative of Articles 14 & 16 of Constitution of India as well as policy of Government for appointment on compassionate grounds. (ii) That the respondents may kindly be directed to appoint the petitioner as Helper/Chowkidar on compassionate grounds as has been recommended by the respondent No. 3 in its letter dated 26th August, 2004. (iii) The records of CWP(T) No. 3998 of 2008 may kindly be perused and the respondents may be directed to produce the entire record of the case.” 2. It appears that the petitioner is on the third round of litigation. The application was rejected on the only ground that the husband of the petitioner was an employee of Nahan Foundry and the same had been declared as a dying cadre. For one thing, it has to be seen that policy regarding compassionate appointment as promulgated by the government on 18th January, 1990 and clarified thereafter on several occasions, does not make any difference as to whether a government servant is in a dying cadre or not. The only expression used in the policy is `government servant’. There is no dispute that the husband of the petitioner was a government servant at the time of his death. In other words, it is a case of an employee dying while in government service. That apart, it is seen from Annexure P-8, order, dated 23rd December, 1989 in the matter of taking over of Nahan Foundry that “The employee taken over from erstwhile Nahan Foundry will be integrated in the cadre of corresponding categories of employees of PWD/IPH subject to provision of para-7. 3. In para 7, it is provided that an employee who become surplus to the requirements of the State PWD/IPH workshop shall, at first instance, be absorbed in the PWD/IPH and thereafter in other government departments or other Boards/Corporations in due course and their services shall be transferable throughout the Himachal Pradesh. Therefore, the notification would clearly show that the employee of the erstwhile Nahan Foundry had become an employee of the State Government. Whether those posts would cease to be available on account of retirement or otherwise is an irrelevant consideration in the matter of considering a case on compassionate appointment. What is relevant in that regard is only as to whether the case is covered by the policy, on the premises that the deceased employee is a government servant. That condition is satisfied in the instant case, since at the time of death of the husband of the petitioner on 24.7.2001 he was in service, after taking over of the Nahan Foundry in the year 1989. 4. Learned Additional Advocate General submits that the appointment on compassionate grounds is not to be treated as a matter of right. There cannot be any quarrel with the well settled proposition. But the question is whether the petitioner is entitled to be considered in terms of the policy. The rejection of the case of the petitioner is only on the ground that the husband of the petitioner belonged to Nahan Foundry-dying cadre. . As we have already held above, it is an irrelevant factor. Therefore, this writ petition is disposed of as follows:- 5. Annexure P-7 is quashed. There will be a direction to the 2nd respondent to consider the case of the petitioner in terms of the policy regarding the eligibility for compassionate appointment ignoring the objection of the Nahan Foundry being a dying cadre. In the process, if it is found that the petitioner is otherwise eligible, she shall be appointed forthwith. It is made clear that the decision, as above, will be taken by the Engineer-in-Chief/competent authority in light of the findings regarding entitlement as recorded in the communication , dated 27.10.2004 (Annexure P-4) and 26th August, 2004 from the Superintending Engineer to the Engineer-in-Chief. Needful shall be done within one month from the date of production of the copy of this judgment alongwith the recommendations of the Superintending Engineer and Engineer-in-Chief, as referred to above. The writ petition stands disposed of, so also the pending application(s), if any. Copy dasti. (Justice Kurian Joseph), Chief Justice ( Justice V.K. Ahuja), December 1, 2010(K) Judge IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP(T) No. 13942 of 2008 Decided on: 1st December, 2010 Shyam Lal Petitioner Versus State of H.P. and another Respondents Coram The Hon’ble Mr.Justice Kurian Joseph, Chief Justice The Hon’ble Mr. Justice V.K. Ahuja, Judge For the Petitioner: Mr. Dharamvir Sharma, Advocate For the State: Mr. R.K. Bawa, Advocate General, with Mr. J.K. Verma, Dy. A.G. ______________________________________________________ Justice V.K. Ahuja, J. (Oral) The writ petition has been filed mainly with the following prayer:- “That the respondents may kindly be directed to release the retiral benefits of the applicant like pension, gratuity, leave encashment, amount of group insurance etc.” 2. Learned Deputy Advocate General, on the basis of instruction, submits that suspension of the petitioner was only on account of involvement in criminal cases. Petitioner submits that the criminal cases have since been concluded and the petitioner has been acquitted. It is seen that the petitioner had superannuated in the year 2006. In view of the developments, as above, the appointing/disciplinary authority has to take final decision in the matter. 3. Learned Deputy Advocate General submits that in another matter pertaining to the loss caused to the government to the tune of Rs. 3.62 lacs steps have already been initiated. According to the petitioner, the same is now pending in appeal before the government. Since the petitioner superannuated in the year 2006, it is only appropriate that whole thing is given a quietus. Therefore, this writ petition is disposed of as follows. 4. There will be a direction to the first respondent to look into the matter and take appropriate action in accordance with law to settle and disburse the eligible benefits, due to the petitioner. This shall be done within a period of three months from today. In case any due, admissible and undisputed amounts are payable to the petitioner, the same shall be paid within another one month from today. The writ petition stands disposed of, so also the pending application(s), if any. Copy dasti. (Justice Kurian Joseph), Chief Justice ( Justice V.K. Ahuja), December 1, 2010(K) Judge IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP(T) No. 6651 of 2008 Decided on: 1st December, 2010 Daya Nand Petitioner Versus H.P. State Forest Corporation & ors. Respondents Coram The Hon’ble Mr.Justice Kurian Joseph, Chief Justice The Hon’ble Mr. Justice V.K. Ahuja, Judge For the Petitioner: Mr. Dilip Sharma, Advocate For Respondent No.1: Mr. J.R.Thakur, Advocate For Respondents 2 & 3: Mr. Yudhvir Singh, Advocate ______________________________________________________ Justice V.K. Ahuja, J. (Oral) The writ petition has been filed mainly with the following prayer:- (i) That the impugned order dated 21.7.1999 at Annexure A-3 may kindly be quashed and set aside. (ii) That respondent Corporation may be directed to consider the claim of applicants for promotion as office Manager (Junior) against two posts which were available in July, 1999 for Scheduled Caste categories against roster points and respondent Corporation may be directed to grant all consequential benefits including promotion from the date of order dated 21.7.1999 including arrears of salary and other benefits. 2. In reply filed on behalf of the first respondent, at para 3 it is stated as follows:- “That the averments made in para 3 of the application are not admits to be correct. There is no question of any omission and commission on behalf of respondent No. 1,as alleged by the applicant. Since the applicants were not within the zone of consideration so their case was not considered fit for promotion. It is, however, admitted that a post of Office Manager (Jr.) fell vacant on 1.1.2000 on the retirement of Shri Chint Ram. The Respondent Corporation has not made any promotion of General category candidate as alleged by the applicants. The applicant had no subsisting right to approach this Hon’ble Tribunal and as such the application is liable to be rejected being premature.” 3. The other respondents have also filed the reply. In view of the stand, which is taken in replies and in view of the intervening developments, in case the petitioner has still any grievance left, it will be open for him to approach the first respondent in which case the matter will be duly considered by the first respondent and appropriate action, in accordance with law, will be taken by the first respondent, after affording an opportunity of hearing to the petitioner and any other affected party, within another four months. The writ petition stands disposed of, so also the pending application(s), if any. Copy dasti. (Justice Kurian Joseph), Chief Justice ( Justice V.K. Ahuja), December 1, 2010(K) Judge IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP(T) No. 8918 of 2008 Decided on: 1st December, 2010 Chet Ram Petitioner Versus H.P.S.E.B. & others Respondents Coram The Hon’ble Mr.Justice Kurian Joseph, Chief Justice The Hon’ble Mr. Justice V.K. Ahuja, Judge For the Petitioner: Mr. Narender Sharma, Advocate For the Respondents: Ms. Anjula Khajuria, Advocate ______________________________________________________ Justice V.K. Ahuja, J. (Oral) The writ petition has been filed mainly with the following prayer:- “Directing the respondents to allow the applicant to join his duties in pursuance to Annexure A-1, more particularly respondent No. 2, who has flatly refused to accept the joining of the applicant, with all consequential benefits.” 2. Learned counsel for the Board submits that the petitioner had not completed 240 days. It is also submitted that the disputed facts cannot be gone into in the writ petition. It is further submitted that the petitioner had been engaged for project and on completion of project only, the petitioner was duly dis-engaged. Some of the above contentions are seriously disputed by the learned counsel for the petitioner. It is submitted that even if the petitioner had not completed 240 days, dis-engagement should only be on the basis of last come first go. Still further, it is submitted that in case there was subsequently work available, the petitioner should have been allowed to continue preferably to others. Third submission is that many juniors to the petitioner in Annexure A-1 list have since been re-engaged either pursuant to the order passed by the Industrial Tribunal or on account of re-consideration of the case by the Board itself. 3. Though ordinarily the petitioner should have also been relegated to pursue his remedy before the Industrial Tribunal, in order to avoid multiplicity of proceeding or litigation, we are of the view that an opportunity should be given to the petitioner to approach the first respondent. Therefore, this writ petition is disposed of as follows. 4. In the event of the petitioner approaching the first respondent, pointing out the instances of juniors to the petitioner having been re-engaged, a similar treatment shall be extended to the petitioner herein also. Needful, as above, shall be done by the first respondent/competent authority under the first respondent, within four months from the receipt of the representation alongwith the copy of this judgment. The writ petition stands disposed of, so also the pending application(s), if any. Copy dasti. (Justice Kurian Joseph), Chief Justice ( Justice V.K. Ahuja), December 1, 2010(K) Judge