Rajender Singh vs State Of H.P. And Others

Jyotsna Rewal Dua, J

Case of the petitioner for compassionate appointment has been rejected by the respondents vide communication dated 31.7.2020 on the ground that his father, a Class­IV regular employee had crossed the eligible age limit of 45 years prescribed in the Policy dated 7.3.2019. Feeling aggrieved, petitioner has preferred instant petition inter­alia challenging this rejection order and has sought a direction to the respondents to appoint him on compassionate ground by considering his eligibility in terms of the policy for appointment on compassionate grounds as was prevalent on the relevant date i.e. during the year 2009.

2(i) The father of the petitioner was serving as Male Health Worker on regular basis with the respondents under Block Medical Officer, Jhandutta District Bilaspur. He sought permission from the respondents for premature retirement on medical grounds and for employment of his son/petitioner on compassionate ground in his place. Petitioner's father was medically examined. He was declared permanently incapacitated by the Medical Examination Board and was retired permanently from the Government services w.e.f. 29.4.2008. At the time of his retirement, petitioner's father had completed 53 years of age statedly after rendering 25 years of service.

2(ii) Petitioner's case for appointment on compassionate ground was processed by the respondents. In support of his claim that his case for compassionate appointment was pending consideration of the respondents w.e.f. 2008­2009, reliance has been placed on a letter dated 7.7.2009 (Annexure P­2) whereby petitioner was directed by the respondents to submit certain documents. It is not in dispute that at that time the appointment on compassionate ground was governed by memorandum dated 18.01.1990. Relevant clause of this Policy memorandum provided that the retiring employee should not have crossed the age of 53 years and 55 years in case of Class III and IV respectively. Clause 2(d) of the office memorandum dated 18.1.1990, is re­produced hereinafter:­

"(d) A Government servant (Class­III 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."

2(ii) The father of the petitioner had retired prematurely on medical grounds as a regular Male Health Worker. Since father of the petitioner had not crossed the age of 55 years prescribed in the aforesaid policy, therefore, petitioner was eligible in 2009 for appointment on compassionate grounds in terms of above clause of office memorandum dated 18.1.1990.

2(iii) Vide communication dated 31.7.2020, respondents rejected petitioner's claim by observing that his father had crossed the age limit of 45 years and therefore could not be considered for appointment on compassionate grounds. This rejection has been assailed in the instant petition.

Learned counsel for the petitioner contended that 45 years of age limit of employee retiring on medical grounds is a condition of eligibility for appointment on compassionate basis in the Policy office memorandum issued on 7.3.2019. Whereas the case of the petitioner has to be considered on the basis of office memorandum dated 18.01.1990, which was applicable at the time when petitioner had applied for appointment on compassionate basis.

Learned Additional Advocate General supported the impugned order rejecting the case of the petitioner for appointment on compassionate basis on the ground that under the office memorandum dated 7.3.2019, father of the petitioner was not eligible in terms of the age limit prescribed therein. Clause 2(d) of the office memorandum dated 7.3.2019 reads as under:­

"A Government servant (Class­III and IV only), who retires on medical grounds under Rule­38 of the CCS (Pension) Rules, 1972 provided the employee so retiring has not crossed the age of 45 years."

It is no longer res­integra that the claim for compassionate appointment has to be decided only on the basis of relevant scheme, which was prevalent on the date in question. Subsequent scheme cannot be looked into for the purpose. It will be appropriate in this regard to refer to (2020) 2 SCC 729 titled Indian Bank and Others Vs. Promila and another, which in turn relied upon (2015) 7 SCC 412, titled Canara Bank Vs. M.Mahesh Kumar. Relevant paragraphs of the same are extracted as under:­

"18. The question of applicability of any subsequent Scheme really does not apply in view of the judgment of this Court in Canara Bank (supra) . Thus, it would not be appropriate to examine the case of the respondents in the context of subsequent Schemes, but only in the context of the Scheme of 4.4.1979, the terms of which continued to be applicable even as per the new Scheme of 5.11.1985, i.e. the Scheme applicable to the respondents. There is no provision in this Scheme for any ex gratia payment. The option of compassionate appointment was available only if the full amount of gratuity was not taken, something which was done. Thus, having taken the full amount of gratuity, the option of compassionate appointment really was not available to the respondents.

We may also notice that though the subsequent Schemes were not applicable, even if benefit was sought to be given of those Schemes, initial non­disclosure and subsequent disclosure by respondent No.1, of her employment and her emoluments would disentitle her under those Schemes, too. Thus, when the appellant was calling upon the respondents to apply under the subsequent Schemes, that could have been beneficial to the respondents only if they were entitled to any of the benefits under that Scheme. That could not happen because the benchmark provided in those subsequent Schemes took the emoluments of respondents beyond the prescribed limit, so as to disentitle them from both, compassionate employment and ex gratia payment.

We have to keep in mind the basic principles applicable to the cases of compassionate employment i.e. succour being provided at the stage of unfortunate demise, coupled with compassionate employment not being an alternate method of public employment. If these factors are kept in mind, it would be noticed that the respondents had the wherewithal at the relevant stage of time, as per the norms, to deal with the unfortunate situation which they were faced with. Thus, looked under any Schemes, the respondents cannot claim benefit, through, as clarified aforesaid, it is only the relevant Scheme prevalent on the date of demise of the employee, which could have been considered to be applicable, in view of the judgment of this Court in Canara Bank. It is not for the Courts to substitute a Scheme or add or subtract from the terms thereof in judicial review, as has been recently emphasised by this Court in State of H.P. Vs. Parkash Chand."

In the instant case, the respondents have been processing the case of the petitioner for his appointment on compassionate basis w.e.f. 7.7.2009 onwards. Admittedly in the year 2009 the office memorandum dated 18.01.1990 was in vogue, which provided that the employee retiring on medical grounds should not have crossed the age of 53 years in case of Class­III and the age of 55 years in case of Class­IV employees for the purpose of determining eligibility for appointment on compassionate basis. Petitioner's father was a regular Class­IV employee and had not crossed age of 55 years on the date of his retirement on medical grounds. Rejection of the petitioner's case by the respondents by applying the eligibility criteria set­forth in subsequent policy of 7.3.2019, is therefore illegal. Accordingly, impugned communication dated 31.07. 2020 (Annexure P­8) is quashed and set aside. Respondents are directed to consider the case of the petitioner for appointment on compassionate basis in accordance with applicable policy and law within a period of three weeks from today.

With these observations and directions, the instant petition is disposed of, so also the pending miscellaneous application(s), if any.