High Court of H.P. 1

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

LPA No. 77 of 2013 alongwith LPA

Nos, 85, 99, 107, 108, 117, 119, 120,

121, 128, 130, and 131 of 2013.

Judgment reserved on 24.7.2013

Date of decision: 17.9.2013.

___________________________________________ _____________

1 .LPA No. 77 of 2013

State of H.P. & Ors. Appellants.

Vs.

Sanjay Kumar Respondent.

2. LPA No. 85 of 2013

State of H.P. & Ors. Appellants.

Vs.

Chain Singh Respondent.

3. LPA No. 99 of 2013

State of H.P. & Ors. Appellants.

Vs.

Jaimal deen Respondent.

4. LPA No. 107 of 2013

State of H.P. & Ors. Appellants.

Vs.

Mohinder Kumar Respondent.

5. LPA No.108 of 2013

State of H.P. & Ors. Appellants.

Vs.

Nek Mohammed Respondent.

6. LPA No. 117 of 2013

State of H.P. & Ors. Appellants.

Vs.

Rajinder Kumar Respondent.

7. LPA No. 119 of 2013

State of H.P. & Ors. Appellants.

Vs.

Rachhpal Singh Respondent.

8. LPA No. 120 of 2013

State of H.P. & Ors. Appellants.

Vs.

Megh Raj Respondent.

9. LPA No. 121 of 2013

State of H.P. & Ors. Appellants.

Vs.

Sanjeev Kumar Respondent.

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10. LPA No. 128 of 2013

State of H.P. & Ors. Appellants.

Vs.

Jeevan Kumar Respondent.

11. LPA No. 130 of 2013

State of H.P. & Ors. Appellants.

Vs.

Ganesh Kumar Respondent.

12. LPA No. 131 of 2013

State of H.P. & Ors. Appellants.

Vs.

Tilak Raj Respondent.

Coram

The Hon’ble Mr. Justice A.M. Khanwilkar, Chief Justice

The Hon’ble Mr. Justice Kuldip Singh, Judge.

Whether approved for reporting?

1

Yes

For the Appellants : Mr. Shrawan Dogra, Advocate General with

Mr. Romesh Verma, Addl. Advocate General,

and Mr. J.K. Verma, and Ms. Parul Negi,

Deputy Advocate Generals.

( in all the petitions)

For the Respondent (s) : Mr. Sanjay Jaswal, Advocate.

( in all the petitions.)

Kuldip Singh, J

This judgment shall dispose of LPA Nos.77, 85, 99, 107,

108, 117, 119, 120, 121, 128, 130 and 131 of 2013 as common

question of law is involved in all the appeals.

LPA No.77 of 2013

2. The judgment dated 14.9.2012 of the learned Single

Judge in CWP No.7031 of 2012 has been assailed in the appeal. As

per the case of the respondent his father Kansi Ram had joined the

department of appellant No.5 as daily waged beldar in the year 1974,

he was regularized as beldar in the year 1995. The father of the

respondent died on 11.12.2002 while serving as regular beldar. The

Whether the reporters of the local papers may be allowed to see the Judgment?

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respondent applied for compassionate appointment in June, 2004. The

appellant No.3 vide office order dated 24.10.200 5 appointed

respondent as daily wages beldar on compassionate ground. The

respondent joined as such on 18.11.2005 in Sub Division, Badukhar.

The respondent claimed appointment on compassionate ground on

regular basis with all consequential benefits. The learned Single Judge

has allowed the petition of respondent.

LPA No.85 of 2013

3. The judgment dated 14.9.2012 of the learned Single

Judge in CWP No.7086 of 2012 has been assailed in the appeal. As

per the case of the respondent his father Parkash Chand had joined the

department of appellant No.5 as regular beldar in the year 1971. The

father of the respondent died on 2.11.2001 while serving as regular

beldar. The respondent applied for c ompassionate appointment in

March, 2003. The appellant No.3 vide office order dated 24.10.2005

appointed respondent as daily wages beldar on compassionate ground.

The respondent joined as such on 18.11.2005 in Sub Division,

Badukhar. The respondent claimed appointment on compassionate

ground on regular basis with all consequential benefits. The learned

Single Judge has allowed the petition of respondent.

LPA No.99 of 2013

4. The judgment dated 4.7.2011 of the learned Single Judge

in CWP(T) No.16006 of 2008 has been assailed in the appeal. As per

the case of the respondent his father Nasir Mohammad had initially

joined the department of appellant No.4 as daily waged beldar in the

year 1984, he was regularized in the year 1995. The father of the

respondent died on 15.2.2001 while serving as regular beldar. The

respondent applied for compassionate appointment in June, 2001. The

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appellant No.3 vide office order dated 31.10.2005 appointed

respondent as daily waged beldar on compassionate ground. The

respondent joined as such on 7.11.2005 in Sub Division, Kotla. The

respondent claimed appointment on compassionate ground on regular

basis with all consequential benefits.

The appellants contended that department O.M. dated

18.1.1990 has been amended vide DPO No.Per(AP-II)F(4)-4/89 dated

16.8.2005 giving employment on daily waged basis. Accordingly, the

case of the respondent was considered by Superintending Engineer 9

th

Circle, HP PWD , Nurpur and he was appointed vide office order dated

24.10.2005. It has been contended that respondent has been rightly

appointed as daily waged beldar on compassionate ground. The

learned Single Judge has allowed the petition of respondent.

LPA No.107 of 2013

5. The judgment dated 14.9.2012 of the learned Single

Judge in CWP No.7087 of 2012 has been assailed in the appeal. As

per the case of the respondent his father Om Parkash had initially

joined the department as daily waged beldar in the year 1986, he was

regularized in the year 1996. The father of the respondent died on

16.12.2000 while serving as regular beldar. The respondent applied

for compassionate appointment in the year 2001. The appellant No.3

vide office order dated 24.10.2005 appointed the respondent as daily

waged beldar on compassionate ground. The respondent joined as

such on 2.11.2005. The respondent claimed appointment on

compassionate ground on regular basis with all consequential benefits.

The learned Single Judge has allowed the petition of respondent.

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LPA No.108 of 2013

6. The judgment dated 14.9.2012 of the learned Single

Judge in CWP No.7052 of 2012 has been assailed in the appeal. As

per the case of the respondent his father Chirag Deen had initially

joined the department as daily waged beldar in the year 1985, he was

regularized as beldar in the year 1995. The father of the respondent

died on 31.8.2003 while serving as regular beldar. The respondent

applied for compassionate appointment in the year 2004. The appellant

No.3 vide office order dated 24.10.2005 appointed the respondent as

daily waged beldar on compassionate ground. The respondent joined

as such on 2.11.2005. The respondent claimed appointment on

compassionate ground on regular basis with all consequential benefits.

The learned Single Judge has allowed the petition of respondent.

LPA No.117 of 2013

7. The judgment dated 1 6.8.2012 of the learned Single

Judge in CWP No.2800 of 2012 has been assailed in the appeal. As

per the case of the respondent his father Mukhtyar Singh was regular

as beldar in the year 1 998. The father of the respondent died on

21.11.2002 while serving as regular beldar. The respondent applied

for compassionate appointment in December, 2002. The appellant

No.3 vide office order dated 26.10.2005 appointed the respondent as

daily waged beldar on compassionate ground, he joined as such on

1.11.2005. The respondent claimed appointment on compassionate

ground on regular basis with all consequential benefits. The learned

Single Judge has allowed the petition of respondent.

LPA No.119 of 2013

8. The judgment dated 1 6.8.2012 of the learned Single

Judge in CWP No.2797 of 2012 has been assailed in the appeal. As

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per the case of the respondent his father Shankar Dass was regular as

beldar in the year 1998. The father of the respondent died on

27.2.2004 while serving as regular beldar. The respondent applied for

compassionate appointment in May, 2004. The appellant No.3 vide

office order dated 26.10.2005 appointed the respondent as daily waged

beldar on compassionate ground, he joined as such on 1.11.2005. The

respondent claimed appointment on compassionate ground on regular

basis with all consequential benefits. The learned Single Judge has

allowed the petition of respondent.

LPA No.120 of 2013

9. The judgment dated 1 6.8.2012 of the learned Single

Judge in CWP No.2689 of 2012 has been assailed in the appeal. As

per the case of the respondent his father Punjab Singh had initially

joined the department as daily waged beldar, he was regularized as

beldar in the year 1996. The father of the respondent died on

7.3.2004 while serving as regular beldar. The respondent applied for

compassionate appointment in April, 2004. The appellant No.3 vide

office order dated 24.10.2005 appointed the respondent as daily waged

beldar on compassionate ground, he joined as such on 1.11.2005. The

respondent claimed appointment on compassionate ground on regular

basis with all consequential benefits. The learned Single Judge has

allowed the petition of respondent.

LPA No.121 of 2013

10. The judgment dated 24.8.2012 of the learned Single

Judge in CWP No.2796 of 2012 has been assailed in the appeal. As

per the case of the respondent his father Des Raj was regular as beldar

in the year 1989. The father of the respondent died on 21.6.2001 while

serving as regular beldar. The respondent applied for compassionate

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appointment in July, 2001. The appellant No.3 vide office order dated

26.10.2005 appointed the respondent as daily waged beldar on

compassionate ground, he joined as such on 1.11.2005. The

respondent claimed appointment on compassionate ground on regular

basis with all consequential benefits. The learned Single Judge has

allowed the petition of respondent.

LPA No.128 of 2013

11. The judgment dated 14.9.2012 of the learned Single

Judge in CWP No.7056 of 2012 has been assailed in the appeal. As

per the case of the respondent his father Purshotam Chand had initially

joined the department as daily waged beldar in the year 1986, he was

regularized as beldar in the year 1994. The father of the respondent

died on 1.3.2004 while serving as regular beldar. The respondent

applied for compassionate appointment in April, 2004. The appellant

No.3 vide office order dated 24.10.2005 appointed the respondent as

daily waged beldar on compassionate ground, h e joined as such on

2.11.2005. The respondent claimed appointment on compassionate

ground on regular basis with all consequential benefits. The learned

Single Judge has allowed the petition of respondent.

LPA No.130 of 2013

12. The judgment dated 14.9.2012 of the learned Single

Judge in CWP No.7063 of 2012 has been assailed in the appeal. As

per the case of the respondent his father Fauja Singh had initially joined

the department as daily waged beldar in the year 1986, he was

regularized as beldar in the year 1996. The father of the respondent

died on 24.9.2003 while serving as regular beldar. The respondent

applied for compassionate appointment in December, 2003. The

appellant No.3 vide office order dated 26.10.2005 appointed the

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respondent as daily waged beldar on compassionate ground, he joined

as such on 2.11.2005. The respondent claimed appointment on

compassionate ground on regular basis with all consequential benefits.

The learned Single Judge has allowed the petition of respondent.

LPA No.131 of 2013

13. The judgment dated 16.8.2012 of the learned Single

Judge in CWP No.2646 of 2012-E has been assailed in the appeal. As

per the case of the respondent his father Budhi Singh had initially joined

the department as peon on 5.2.1981. The father of the respondent died

on 7.4.2002 while serving as regular peon. The respondent applied for

compassionate appointment in July, 2002. The appellant No.3 vide

office order dated 10.10.2007 appointed the respondent as Clerk on

contract basis on compassionate ground, he joined as such on

17.10.2007 in the office of Superintending Engineer 9

th

Circle HP.

PWD, Nurpur. The respondent claimed appointment on compassionate

ground on regular basis instead of contract basis with all consequential

benefits. The learned Single Judge has allowed the petition of

respondent.

14. We have heard the learned Advocate General for the

appellants and Mr. Sanjay Jaswal, learned counsel for the respondents

in all the appeals and have also gone through the written submissions

of respondents, the appellants have not submitted written submissions

despite opportunity given. Learned Advocate General has submitted

that the respondents had no vested right for appointments under the

policy of compassionate appointment of the State after the deaths of

their fathers. The policy in force when the applications were actually

considered and not the policy when applications were made will be

applicable. At the time of consideration of the cases of the

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respondents for compassionate appointments, the policy had been

amended, the respondents were rightly appointed on daily waged basis

which appointments were accepted by the respondents. The learned

Single Judge has misconstrued, misinterpreted the law on

compassionate appointment while giving direction to consider the cases

of respondents for regular appointments from the initial dates of

appointments. The learned Advocate General has relied State Bank

of India and another vs. Raj Kumar (2010) 11 SCC 661 in support of

his submissions.

15. Mr. Sanjay Jaswal, Advocate has submitted that policy

when the respondents applied for compassionate appointments would

apply and not the amended policy at the time of consideration of the

cases of the respondents for compassionate appointments. He has

submitted that in the amended policy there is no provision that cases for

compassionate appointment would be considered under the new policy

even though applicants had applied under the unamended policy. He

has relied Chairman, Railway Board and others vs. C.R.

Rangadhamaiah and others (1997) 6 SCC 623, Bhawani Prasad

Sonkar vs. Union of India and others (2011) 4 SCC 209, Krishna

Kumari vs. State of Haryana and others 2012(4) SLR 481 (Pb. &

Hry.).

16. The H.P. Government Department of Personnel O.M.No.

Per.(AP-II)F(4)-4/89 dated 18.1.1990 provides compassionate

appointment policy as given in Handbook of Personnel Matters Vol-I

(Second Edition), Government of Himachal Pradesh, Department of

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Personnel, relevant part thereof is as follows:

“Subject: Appointment of sons/daughters/near relations of a

Government servant who dies in harness leaving his

family in immediate need of assistance.

The undersigned is directed to say that the question of

revising the policy for providing employment assistance to dependents

of Govt. servants who die while in Government service, leaving their

families in indigent circumstances was under consideration of the

Govt. for some time past. After thorough consideration and in

supersession of all previous orders in this respect it has now been

decided to adopt the following new policy for grant of employment on

compassionate grounds to the dependents of deceased Govt. servants

in future:-

1. Policy:

The employment on compassionate grounds to the

dependents of Govt. servants who die while in service is not to be

provided as a matter of right. It should be given only in deserving cases

where the family of deceased Govt. servant is left in indigent

circumstances requiring immediate means of subsistence. The

concerned Administrative Departments would satisfy themselves about

the indigent circumstances of the family before appointment on

compassionate grounds is made.

2. To whom the policy is applicable:

The employment assistance on compassionate groun ds will

be allowed in order of priority only to widow or son or unmarried

daughter (in case of unmarried Govt. servant to father, mother, brother

and unmarried sister) of:

(a) a Govt. servant who dies while in service (including by

suicide) leaving his family in immediate need of assistance.

(b) A daily wage employee who dies while in service after having

rendered atleast 5 years service with not less than 240 days

on daily wage basis in a year (to be computed as an average

of the number of days served in the preceding three years)

leaving his family in immediate need of assistance. In such

cases compassionate employment would be on daily wages

only.

(c) A Government servant who has been missing for more than

two years and the family needs the immediate assistance.

(d) A Government servant (Class-III and IV only) who retires on

medical grounds under rule 38 of the C.C.S. (Pension) Rules,

1972. Provided the employee so retiring has not crossed the

age of 53 years and 55 years in case of Class III and IV

respectively.

(e) A Govt. servant who dies during the period of extension in

service but not re-employment, leaving his family in

immediate need of assistance.

3. xx xx xx

4. Posts to which such appointments can be made:

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The appointment on compassionate g rounds can be made

only to the lowest rung of Class IV and Class III posts carrying the

pay scale of Rs.300-430 (now revised to Rs.750-1350) and 400-600 or

400-660 (now revised to Rs.950-1800) respectively. Class III jobs

would include all equivalent jobs including technical posts and

teachers (Class-III in the scale of Rs.950-1800 only.”

5. to 12: xx xx xx

17. The policy dated 18.1.1990 has been amended vide

Memorandum No.Per (AP-II)F(4)-4/89-V dated 16

th

August, 2005 from

Pr. Secy (Pars) to the Govt. of H.P. Shimla-2 endorsed to All Heads of

Department in H.P. and others, which is as follows:

“Subject: Appointment of sons/daughters/near relations of a

Government servant who dies in harness leaving his

family in immediate need of assistance-modification

thereof.

The policy of providing employment assistance to the

dependent of Government servant who die while in Government

service leaving their family in indigent circumstances was circulated

vide this Department office memorandum of even number dated the

18 January, 1990. According to para-2(b) of the policy a daily waged

employee who dies while in service leaving his family in immediate

need of assistance may be given compassionate employment on

daily wages only with a view to further I moral of the policy, it has

been decided by the Government that if a work charged Beldar on

daily wages with 7 years continuous service dies in harness one of

his dependents be appointed on daily wages. In such cases

appointments will be done by Deputy C ommissioners,

Superintending Engineers of Public Works Department, Irrigation &

Public Health Department, H.P.S.E.B. Conservators of Forest, Chief

Medical Officers, Deputy Director of Horticultures/Agriculture

Department and other equivalent Regional/District level officers as

the case may be.

Accordingly, para-2(b) of this Department O.M. of even

number dated 18.1.1990 may be deemed to have been amended as

under:-

“2(b) (i) A daily waged employee who dies while in service

leaving his family in immediate need of assistance may be

given compassionate employment on daily wages.

2(b)(ii) A work Charged Beldar on daily waged with 7 year

continuous service who dies in harness, one dependent

may be appointed on daily wages. Appointment will be

done by Deputy Commissioner, Superintending Engineers

of Public Works Department, Irrigation & Public Health

Department, H.P.S.E.B., Conservators of Forest, Chief

Medical Officers, Deputy Director of

Horticulture/Agriculture Department and other equivalent

Regional/District level officers as the case may be.

These instructions will come into force with immediate

effect.”

18. The question involved in the appeals is whether policy of

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compassionate appointment in vogue at the time of application will

apply or the policy in force at the time of consideration of the cases of

the respondents for appointments on compassionate ground will apply.

In all appeals, the respondents had applied for compassionate

appointments between 2001 to 2004 when the compassionate

appointment policy dated 18.1.1990 was in force. This policy was

amended on 16.8.2005. The respondents, except in LPA No.131 of

2013, were appointed as daily waged beldars on compassionate

ground on or after 24.10.2005 after the amendment of policy dated

18.1.1990 vide memorandum No.Per(AP -II)F(4)-4/89-V dated

16.8.2005 which provides; (i) a daily waged employee who dies while

in service leaving his family in immediate need of assistance may be

given compassionate employment on daily wages (ii) a work charged

beldar on daily waged with 7 year continuous service who dies in

harness, one dependent may be appointed on daily wages. The

respondent in LPA No.131 of 2013 was appointed as clerk on contract

on compassionate ground.

19. The learned Advocate General has contended that

respondents had no vested right for appointment on compassionate

ground, therefore, the policy applicable at the time of consideration of

the case on compassionate ground would apply and not any earlier

policy. In State Bank of India and another vs. Raj Kumar (supra),

the Supreme Court has held as follows:-

“12. Obviously, therefore, there can be no immediate or automatic

appointment merely on an application. Several circumstances having

a bearing on eligibility, and financial condition, upto the date of

consideration may have to be taken into account. As none of the

applicants under the scheme has a vested right, the scheme that is in

force when the application is actually considered, and not the

scheme that was in force earlier when the application was made, will

be applicable.

13. Further, where the earlier scheme is abolished and the new

scheme which replaces it specifically provides that all pending

applications will be considered only in terms of the new scheme, then

the new scheme alone will apply. As compassionate appointment is a

concession and not a right, the employer may wind up the scheme or

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modify the scheme at any time depending upon its policies, financial

capacity and availability of posts.”

“15. We may also refer to the decision of this Court in Kuldeep

Singh v. Govt. of NCT of Delhi which considered the question of grant

of liquor vend licences. This Court held that where the applications

required processing and verification the policy which should be

applicable is the one which is prevalent on the date of grant and not

the one which was prevalent when the application was filed. This

Court clarified that the exception to the said rule is where a right had

already accrued or vested in the applicant, before the change of

policy.”

20. The learned counsel for the respondents has relied

paragraphs 20, 24 of the report in Chairman, Railway Board vs. C.R.

Rangadhamaiah (supra) which are as follows:-

“20. It can, therefore, be said that a rule which operates in futuro so

as to govern future rights of those already in service cannot be

assailed on the ground of retroactivity as being violative of Articles

14 and 16 of the Constitution, but a rule which seeks to reverse from

an anterior date a benefit which has been granted or availed of, e.g.,

promotion or pay scale, can be assailed as being violative of Articles

14 and 16 of the Constitution to the extent it operates

retrospectively.”

“24. In many of these decisions the expressions "vested rights" or

"accrued rights" have been used while striking down the impugned

provisions which had been given retrospective operation so as to

have an adverse effect in the matter of promotion, seniority,

substantive appointment, etc. of the employees. The said

expressions have been used in the context of a right flowing under

the relevant rule which was sought to be altered with effect from an

anterior date and thereby taking away the benefits available under the

rule in force at that time. It has been held that such an amendment

having retrospective operation which has the effect of taking away a

benefit already available to the employee under the existing rule is

arbitrary, discriminatory and violative of the rights guaranteed under

Articles 14 and 16 of the Constitution. We are unable to hold that

these decisions are not in consonance with the decisions in Roshan

Lal Tandon (AIR 1967 SC 1889) ; B. S. Yadav (AIR 1969 SC 118) and

Raman Lal Keshav Lal Soni (AIR (1983) 2 SCC 33).”

21. The learned counsel for respondents has relied Bhawani

Prasad Sonkar vs. Union of India (supra) in which the Supreme Court

has held as follows:-

“20. Thus, while considering a claim for employment on

compassionate ground, the following factors have to be borne in

mind:

(i) Compassionate employment cannot be made in the absence of

rules or regulations issued by the Government or a public authority.

The request is to be considered strictly in accordance with the

governing scheme, and no discretion as such is left with any

authority to make compassionate appointment dehors the scheme.

(ii) An application for compassionate employment must be preferred

without undue delay and has to be considered within a reasonable

period of time.

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(iii) An appointment on compassionate ground is to meet the sudden

crisis occurring in the family on account of the death or medical

invalidation of the bread winner while in service. Therefore,

compassionate employment cannot be granted as a matter of course

by way of largesse irrespective of the financial condition of the

deceased/incapacitated employee's family at the time of his death or

incapacity, as the case may be.

(iv) Compassionate employment is permissible only to one of the

dependants of the deceased/incapacitated employee, viz. parents,

spouse, son o r daughter and not to all relatives, and such

appointments should be only to the lowest category that is Class III

and IV posts.”

“24. In light of the fact that the Circular dated 29.11.2001 was not

applicable in the case of the appellant's father, inasmuch as the

benefit of the 29.4.1999 Circular was not extended to him, and he was

made to retire from service, we are of the opinion that the earlier

circular dated 22.9.1995 is applicable in the instant case.

Consequently, the appellant would be entitled t o employment on

compassionate ground as the said Circular contemplates

compassionate employment for the wards of those employees who

have been medically de-categorized, and have retired, without being

offered an alternative suitable job. We are unable to accept the plea of

the respondents that on being de-categorized, the appellant's father

had opted for voluntary retirement.”

22. In Krishna Kumari vs. State of Haryana (supra), the full

Bench of Punjab and Haryana High Court has held as follows:-

“In view of this clear enunciation of law we cannot but come

to the conclusion that rules applicable on the date of

death/incapacitation of an employee need to be followed. Needless

to observe it is upto the authority to consider the application without

inordinate delay and take a decision thereon. In the eventuality

application remains pending for considerable period and some other

policy comes into operation, no fault can be found on part of the

employee. This appears to be the principle recognized by the apex

court in its recent judgment in Bhawani Prasad Sonkar’s case. As

held therein, application for compassionate employment has to be

preferred without undue delay and has to be considered within a

reasonable period of time as compassionate appointment is to meet

the sudden crisis on account of death or invalidation of the bread

winner of the family. We, thus, come to the conclusion that in case

an application is made by the dependent be latedly or is considered

after inordinate delay, basic requirement of meeting the immediate

crisis becomes redundant. Since the objective of the policy is to

rescue the family from sudden event plunging it into penury,

consideration of application after number of years would be beyond

the principles accepted by the apex court in its various decisions. In

such circumstances, it would be difficult to accept the exception to

the general rule of employment as envisaged by Articles 14 and 16 of

the Constitution of India. We answer the reference accordingly.”

23 In State Bank of India and another vs. Raj Kumar (supra) in

the context of compassionate appointment, it has been held that there can be

no immediate or automatic appointment merely on an application. None of

the applicants under the scheme has a vested right, the scheme that is in

force when the application is actually considered, and not the scheme that

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was in force earlier when the application was made, will be applicable. In

that case in the new scheme, it was also provided that all pending

applications will be considered only in terms of the new scheme. It has been

held that compassionate appointment is a concession and not a right, the

employer may wind up the scheme or modify the scheme at any time.

24. In Bhawani Prasad Sonkar vs. Union of India (supra) the

Supreme Court has held that an application for compassionate employment

has to be considered within a reasonable period of time. The compassionate

employment cannot be granted as a matter of course. On facts in that case it

was held that Circular dated 29.11.2001 was not applicable as the benefit of

the Circular dated 29.4.1999 was not extended and the father of the appellant

was made to retire. It was held that earlier Circular dated 22.9.1995 was

applicable. The Supreme Court has not held that as a matter of principle in

every case policy/scheme for compassionate appointment which was

prevalent at the time of application for compassionate appointment will apply

as against the policy/sheme in force at the time of consideration of the

application for compassionate appointment.

25. In State of Tamil Nadu vs. M/s. Hind Stone and others

(1981) 2 SCC 205, the High Court held that all applications to be

disposed of without reference to Rule 8-C. It was observed that even if

Rule 8-C was valid it applied only to the grant of fresh leases and not to

renewals. It was not open to the Government to keep the application

pending for a long time and then to dispose them of on the basis of a

rule which had came into force later on. The Supreme Court held:-

“13…………….The submission was that it was not open to the

government to keep applications for the grant of lease and

applications for renewal pending for a long time and then to reject

them on the basis of Rule 8 -C notwithstanding the fact that the

applications had been made long prior to the date on which Rule 8-C

came into force. While it is true that such applications should be dealt

with within a reasonable time, it cannot on that account be said that

the right to have an application disposed of in a reasonable time

clothes an applicant for a lease with a right to have the application

disposed of on the basis of the rules in force at the time of the

making of the application. No one has a vested right to the grant or

renewal of a lease and none can claim a vested right to have an

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High Court of H.P. 16

application for the grant or renewal of a lease dealt with in a

particular way, by applying particular provisions. In the absence of

any vested rights in any one, a n application for a lease has

necessarily to be dealt with according to the rules in force on the date

of the disposal of the application despite the fact that there is a long

delay since the making of the application.”

26. The compassionate appointment is a concession and not

a right, the employer has right to modify the policy/scheme at any time.

Once compassionate appointment is not a right, therefore, there is no

question of accruing of vested right in favour of the applicant merely on

moving application for compassionate appointment. We are unable to

persuade ourselves to concur with the view taken in Krishna Kumari

vs. State of Haryana (supra) that rules applicable on the date of

death/incapacitation of an employee need to be followed. In all the

appeals at the time of consideration of applications of respondents for

compassionate appointments, policy dated 18.1.1990 had amended

vide amendment dated 16.8.2005 which did not provide regular

appointments, in case of death of work charged employee who had

worked upto seven years on daily wages. The learned Single Judge

has not considered whether vested rights had accrued or not in favour

of the respondents under the policy dated 18.1.1990 on the deaths of

their fathers. The learned Single Judge has erred in allowing the

petitions merely on the ground that respondents had applied for

compassionate appointments before 16.8.2005 when the policy dated

18.1.1990 was amended. The respondents were appointed on different

dates after 16.8.2005 and it is not their case that their applications were

considered before 16.8.2005. Therefore, no fault can be found when

the respondents were given appointments under policy dated 18.1.1990

read with amendment dated 16.8.2005. The impugned judgment in

each appeal is not sustainable.

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High Court of H.P. 17

27. In view of above, all appeals being LPA Nos.77, 85, 99,

107, 108, 117, 119, 120, 121, 128, 130 and 131 of 2013 are allowed,

impugned judgment in each appeal is set aside.

(A.M. Khanwilkar),

Chief Justice.

(Kuldip Singh),

Judge.

September 17, 2013

(sks)

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