Uma Rani vs State of Himachal Pradesh

Dev Darshan Sud, J

The undisputed facts requiring adjudication in this writ petition are that the petitioner herein is widow of deceased Paras Ram, who was working as Fireman at Bilaspur. He died on 14th February, 2000. It is also undisputed that vide Annexure P-4 the petitioner has been offered appointment on compassionate grounds as Class-IV employee as is apparent/evidenced from this order. The case of the petitioner herein is that she was entitled to be considered and appointed against a Class-III post. For this purpose, the petitioner relies upon the communication addressed by The Commandant General Home Guards/Civil Defence Himachal Pradesh, Shimla to the petitioner stating that her case was recommended for being considered for the post of clerk on contract basis. The writ petition is resisted by the State primarily on the ground that (a) the petitioner was only a matriculate and as such could not be appointed against this post as the qualification of 10+2 was mandatory; (b) the petitioner herself accepted this post and cannot turn round by saying that she should and ought to be appointed against a Class-III post. In order to substantiate this plea, the State relies upon the instructions which have been issued by the Secretary (Personal) to the Government of Himachal Pradesh vide Annexure R-3 to this petition. In particular, emphasis is placed on the fact that by this amendment in the instructions, it has been directed that the only persons possessing 10+2 will be considered for appointment against the post of clerks and steno-typist. This will also apply to appointments on compassionate grounds.

I have heard learned counsel appearing for the parties and gone through the record of the case.

Learned counsel appearing for the petitioner relies upon the judgment of the Supreme Court in Abhishek Kumar vs. State of Haryana and others 2006 (12) SCC 44 holding:

The appellant herein had sought for appointment on compassionate grounds at a point of time when the 2003 Rules were not in existence. His case, therefore, was required to be considered in terms of the Rules which were in existence in the year 2001. Evidently, in the State of Haryana a Statewise list is maintained. In terms of the said list so maintained by the State of Haryana, the appellant was entitled to obtain an appointment on compassionate grounds. He was offered such an appointment by the State. It was the District Magistrate who came in the way and refused to provide for the post.

In a nutshell, the case is that Rules, which were in vogue at the time when the petitioner had applied for compassionate appointment, should and ought to be applicable to govern her case for compassionate appointment. Without entering into this controversy, what I find from Annexure R-3 is that it is not retrospective as the instructions were issued on 14th August, 2008. The instructions contain a clause of relaxation, which reads:

...For enforcing the applicability of educational qualification of 10+2, it has been decided to give three years relaxation, so that during this period, the class-IV officials who are going to attain eligibility for promotion, are able to acquire the said education qualification....

Though these instructions clarify relaxation for promotion to class-III post, there can be no ground for denying an opportunity to the petitioner of acquiring 10+2 qualification, which she has acquired vide Annexure P-4. It is clear from the record that instructions issued on 14.8.2008 were not in vogue at the time when she made the application in the year 2007. Admittedly, there was no requirement that an incumbent who did not possess 10+2 qualification cannot be considered for the post of clerk. This writ petition is allowed. A direction is issued to the respondents to consider the case of the petitioner for being appointed in terms of the policy on compassionate appointment, which was in vogue at the time of the death of the husband of the petitioner or in any event, on the date when she made an application. The respondents shall also take into consideration that she has qualified 10+2 examination in the meantime. Petition stands disposed of. No order as to costs. The State shall undertake and complete this exercise within a period of three months from the date of production of a copy of this judgment. Petition stands disposed of.