2023:HHC:10685
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
CWP No.6341 of 2023
Decided on: 13th September, 2023
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_________________________________________________________________
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Karam Singh ....Petitioner
Versus
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State of H.P. & Ors. …Respondents
_________________________________________________________________
Coram
of
Ms. Justice Jyotsna Rewal Dua
1 Whether approved for reporting? Yes.
_________________________________________________________________
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For the petitioner: Mr. Bhim Raj Sharma, Advocate.
For the respondents: Mr. Anup Rattan, Advocate General
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with Mr. Rupinder Singh Thakur &
Mr. Y. P. S. Dhaulta, Additional
Advocates General, Mr. Sumit
Sharma, Deputy Advocate.
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Jyotsna Rewal Dua, Judge
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Notice. Mr. Sumit Sharma, learned Deputy
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Advocate General, appears and waives service of notice on
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behalf of the respondents.
2. Heard.
3. The petitioner is presently serving as Class-IV
employee, having been appointed on compassionate grounds
on 05.03.2014. His prayer is that his appointment has to
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Whether reporters of Local Papers may be allowed to see the judgment?
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relate back to the year 2011 when he had first applied for
such appointment.
4. Facts
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4(i) Sh. Dhyan Singh, father of the petitioner, worked
as regular Class–IV employee in respondent-Health
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Department. He died in harness on 14.05.2005.
4(ii) The petitioner applied for employment on
of
compassionate grounds against Class-IV post. His
educational qualification at that time was middle pass (8 th).
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It is the case of the petitioner that he had applied during the
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year 2009. Reference in this regard has been made to some
documents placed on record as Annexure P-3 (colly),
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whereunder, petitioner’s case, seeking employment
assistance on compassionate ground, was processed by the
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respondents.
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4(iii) The documents at Annexure P-3 (colly) also make
it clear that petitioner’s educational qualification at the
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relevant time was 8th pass. The respondents proceeded to
consider the case of the petitioner for relaxation of required
education qualification. Eventually, an approval was received
from the Government of Himachal Pradesh for relaxation in
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the education qualification. On that basis, a memorandum
was issued in faovur of the petitioner on 05.03.2014
(Annexure P-5). The memorandum gave offer of appointment
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to the petitioner for the post of Class-IV on daily wage basis
on compassionate grounds, as per terms and conditions
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contained therein.
4(iv) The petitioner accepted the terms and conditions
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and he was accordingly appointed as Class-IV employee on
compassionate grounds in the year 2014. His services were
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regularized on 04.06.2019 (Annexure P-6).
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4(v) On 25.10.2021, petitioner made a representation
to respondent No.2-the Director Health Services, to consider
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him having been appointed in the year 2009 and to assign
him seniority accordingly. The representation was followed
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with another reminder dated 02.05.2023 (Annexure P-8).
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In the aforesaid background, the petitioner has
instituted the instant petition, seeking following substantive
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reliefs:-
“(1) That the petitioner be considered against the post of
Class-IV on compassionate appointment in the year
2009 instead of 2014.
(2) That the respondent department may kindly be directed
to decide the representation dated 25.10.2021 as
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Annexure P-7 as per law, in time bound manner.
(3) That the seniority and other consequential benefits may
kindly be granted to the petitioner.
(4) That due and admissible arrears be given to the
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petitioner.”
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5. Heard learned counsel on both sides and
considered the case record.
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Observations
5(i) By now, it is well settled that appointment under
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compassionate scheme is not meant to be a source of
recruitment. It is essentially to reach immediate succor to a
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bereaved family. The employer on the basis of availability of
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post and after examining the case vis-à-vis all relevant
parameters of the applicable policy is to consider the case of
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the kith & kin of the deceased employee for providing
employment assistance on compassionate grounds.
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5(ii) In the instant case, father of the petitioner had
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died in the year 2005. The petitioner statedly applied in the
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year 2009 for employment assistance on compassionate
grounds. Apparently, his educational qualification was middle
pass at that time. (He has now statedly improved his
qualifications). The respondents set-out to examine his case
and processed the same for relaxation in the required
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educational qualification. Vide memorandum dated
05.03.2014, offer of appointment was made to the petitioner
for the post of Class-IV on daily wage basis on compassionate
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grounds. The said offer (Annexure P-5) explicitly spelt out the
terms and conditions of appointment to the post. The offer of
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appointment also contained a Clause that “if the above terms
& conditions are acceptable to him, he should report for duty at
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CHC Killar (Pangi), District Chamba against vacant post of
Class-IV within fifteen days failing which the offer shall be
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treated as cancelled.” The petitioner accepted the offer of
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appointment and joined at the place mentioned in the
memorandum, in terms of which, he was appointed.
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The petitioner accepted his appointment from date
of joining the post under memorandum dated 05.03.2014,
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without any demur or protest. He did not have any qualms
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for having not been appointed earlier. He did not raise any
claim for seeking appointment with retrospective effect from
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the year 2009. He was regularized as Class-IV employee on
04.06.2019. Even at that stage, no dispute was raised by
him. His representation dated 25.05.2021 seeking
appointment on compassionate grounds from the year 2009
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is only an afterthought. The prayer made by the petitioner in
the representation and the relief claimed on that basis in the
instant writ petition, cannot be considered at this stage. The
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issue cannot be reopened after such a long time.
5(iii) In (1994) 6 SCC 560 (State of Rajsthan Vs.
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Umrao Singh), Hon’ble Apex Court held that the respondent
(therein) having accepted the appointment as LDC, his right
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to be considered for appointment on compassionate ground
was consummated.
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compassionate ground would ever arise. Otherwise, it would
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be a case of “endless compassion”.
In AIR 2021 SCC 4648 (State of Bihar and
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others Vs. Arbind Jee.), the candidate was denied
compassionate appointment as he was found deficient in
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physical standards. His appointment on compassionate
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grounds was made on orders of the Hon’ble Supreme Court.
His claim of retrospective seniority was declined by the Court.
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It was held that seniority benefit can accrue only after person
joins service and cannot be earned retrospectively. It was also
observed that the candidate had not raised any claim for
relating his appointment to an earlier date at the appropriate
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time. Relevant para of the judgment reads as under: -
“………………………But the present is not a case of
recruitment by selection and is a compassionate appointment made
on this court’s order. The court’s direction to the State was to
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appoint within 1 month without specifying that the appointment
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should have a retrospective effect. The respondent never raised any
claim for relating his appointment to an earlier date from this Court.
Post appointment, he never raised any grievance within reasonable
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time, for fixing his date of appointment as 20.11.1985. Six years
later, only on 10.9.2002, he made a representation and the same
was rejected with the observation that on 1.8.1985, the respondent
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was yet to enter service. Proceeding with these facts, it is clearly
discernible that the respondent has slept over his rights, and never
earlier pointedly addressed his present claim either to the Supreme
Court (in the earlier round) or to the State, soon after his
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appointment. Moreover, his was a compassionate appointment
without any element of competitive recruitment where the similarly
recruited has stolen a march over him. Therefore, the ratio in C.
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Jayachandran (supra) will be of no assistance to the respondent as
that case is distinguishable on facts.”
Merely because the petitioner had applied in the
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year 2009 will not entitle him to claim appointment on
compassionate grounds from that date. The petitioner was
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appointed as Class-IV employee on compassionate grounds
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way back on 05.03.2014. He had accepted such employment
at that time. His services have also been regularized by the
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respondents on 04.06.2019. The petitioner has served as
Class-IV employee under the terms and conditions of
memorandum dated 05.03.2014 without raising any
objection. Now he cannot be heard to complain that he
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should have been appointed from the date of his applying for
the post. The object of appointment on compassionate ground
is to provide immediate succor to bereaved family. There
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cannot be an “endless compassion”. In the given facts, closed
chapters cannot be re-opened.
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For all the aforesaid reasons, I find no merit in the
instant writ petition. the same is accordingly dismissed
of
alongwith pending miscellaneous application(s), if any.
rt Jyotsna Rewal Dua
Judge
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September 13, 2023
R.Atal
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