Vidya Singh vs Executive Director, Himachal Pradesh State Electricity Board Limited And Another

Ajay Mohan Goel, J

By way of this writ petition, the petitioner has prayed for the following relief:-

“That a writ in the nature of mandamus may kindly be issued in favour of the petitioner against the respondents directing the respondents to consider the case of the petitioner to grant and allow employment assistance on compassionate grounds in the respondent-Department, in the interest of justice.”

The case of the petitioner is that Sh. Banka Ram his father, who was an employee of the respondent-Electricity Board died in harness on 21.04.2010. Thereafter, the petitioner applied for appointment on compassionate basis. In terms of communication dated 10.03.2022, the petitioner was called upon by the respondent-Board to submit his option for appointment against a Non-Technical Class-IV post and also submit the necessary documents. He did so. As nothing was being done by the respondent-board, he also filed a representation. Yet, as nothing was done by the respondent-board, hence the petition.

When this case was listed previously, upon perusal of the averments made in the writ petition, wherein, it was mentioned that the elder brother of the petitioner was in Government service, a query was put to the learned counsel for the petitioner by the Court that how was the petitioner eligible for appointment on compassionate basis in the light of the said fact. Learned counsel for the petitioner submitted that though the elder brother of the petitioner was in Government service but he was living separately and was not supporting either him or his aged mother and, therefore, he was entitled for appointment on compassionate basis.

Learned counsel for the respondent-Board has made available for the perusal of the Court, the office memorandum of the Himachal Pradesh State Electricity Board, which was enforce relating to appointment on compassionate basis as on the day when the father of the petitioner died. Perusal thereof demonstrates that the respondent-Board had decided that the instructions of the Government dated 18.01.1990 relating to appointment on compassionate basis shall be applicable to the Board and the words “Council of Minister/Cabinet, Administrative Department and Government servant, wherever appearing in the said instructions shall be termed as Chairman, HPSEBL and Board servant. Qua this fact that it was this memorandum and instructions appended therewith, which were in force as on the day when father of the petitioner died and also when the petitioner applied for appointment on compassionate basis is not in dispute.

A perusal of these instructions demonstrate that eligibility criteria as is prescribed therein inter alia provides that in all the cases where one or more members of the family are already in Government service or in the employment of Autonomous bodies/Board/Corporation etc., of the State/Central Government, employment assistance should not under any circumstances provided to the second or third member of the family. The instructions further provide that in cases, however, where the widow of the deceased Government employee represents or claims that her employed son/daughter are not supporting her, the request of employment assistance should be considered only in respect of the widow and even compassionate appointment to the widow in such cases, shall be based on the opinion of the Department concerned.

In the present case, admittedly, the elder brother of the petitioner is already in job. The appointment on compassionate basis, inter alia, is being sought on the ground that the employed son of the deceased was not supporting the family, i.e. the mother or the widow of the deceased employee by the second son. The policy/instructions do not envisage that in case one son, who is in Government service is not looking after his brothers or sisters, then, the other siblings, can apply for the post. The leverage has only been given to the widow and widow alone. Learned counsel for the petitioner though has made a vehement argument that as the purpose of providing employment on compassionate basis is to provide succor to the family of the deceased employee, therefore, the policy should be read that even the son is eligible to apply where his brother is not supporting the family, but this Court does not concur with the said submission of the learned counsel.

Hon’ble Supreme Court in State of Himachal Pradesh and another versus Shashi Kumar, (2019) 3 Supreme Court Cases 653 has inter alia been pleased to hold that a High Court is not a justified in issuing a direction to the State to act in a manner contrary to the express terms of the scheme dealing with compassionate appointment. Hon’ble Supreme Court has held that High Court cannot issue a mandamus to the Government to disregard its policy on compassionate basis.

This Court is of the considered view that in the light of the said judgment of Hon’ble Supreme Court, the High Court cannot rewrite the policy prevailing qua the appointment on compassionate basis. In the present case as unfortunately the second son under no circumstances is eligible to apply for appointment on compassionate basis, no mandamus can be issued to the respondents to offer appointment to the petitioner on compassionate basis. It was the widow alone who could have had applied for appointment on compassionate ground in a situation where already employed child was not looking after her, but she did not do so.

In view of the above, as this Court does not finds any merit in this petition, the same is, accordingly, dismissed, so also pending miscellaneous applications, if any.