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State of Himachal Pradesh and ANR. Vs. Parkash Chand

[Civil Appeal No. 977 of 2019 arising out of SLP(C) No. 28355 of 2016]

Dr Dhananjaya Y Chandrachud, J.

Leave granted.

This appeal arises from a judgment of a Divison Bench of the High Court dated 6 October 2015. The father of the respondent who was working as a Peon in the Revenue Department of the State, died on 4 January 1997, while in service. On the date of the death of his father, the respondent was a minor. He attained the age of majority on 17 November 2002. The policy of compassionate appointment framed by the State of Himachal Pradesh, inter alia, contains a stipulation that where none of the children of a deceased government employee have attained the age of majority at the time of the death of the employee, an application can be submitted on the attainment of the age of twenty one years by the eldest child.

This provision is contained in paragraph 8 of the policy dated 18 January 1990. The application submitted by the respondent upon attaining the age of majority was processed, but was eventually rejected on 25 April 2008 on the ground that the brother of the respondent is already in the service of the Himachal Pradesh Electricity Board. The fact that the brother of the respondent is employed with a State undertaking is not in dispute. In the writ petition before the High Court, the respondent urged that his brother was living separately and relied on a ration card and a certificate issued by the Pradhan of the Gram Panchayat. The fact that the brother was residing separately for seventeen years was admitted in the Writ Petition in the following terms:

"...Because the elder brother of the petitioner was living separately and no family member of the petitioner is in Govt./Semi Govt. service, which fact is clear from the certificate issued by the competent authority, copy of which is annexed herewith as Annexure- P7. The ration card of the family of the petitioner clearly shows that the elder brother of the petitioner is not residing with the petitioner, copy of ration card is annexed herewith as Annexure-P8. The Pradhan concerned has also certified that the elder brother of the petitioner is residing separately for the last 17 years, which fact is clear from the certificate, copy of which is annexed herewith as Annexure-P9." The respondent, in the reliefs which were sought in the petition under Article 226 of the Constitution, sought a direction for setting aside the letter of rejection dated 25 April 2008 and for his appointment as a Peon on compassionate grounds.

3 The Policy framed by the State Government contains the following conditions of eligibility in paragrah 5(c): "In all cases where one or more members of the family are already in government service or in employment of autonomous bodies/bodies/ boards/corporations etc. of the State/Central Government, employment assistance should not under any circumstances be provided to the second or third member of the family. In cases, however, where the widow of the deceased government servant represents or claims that her employed sons/daughters are not supporting her, the request of employment assistance should be considered only in respect of the widow.

Even for allowing compassionate appointment to the widow in such cases the opinion of the department of personnel, and Finance Department should specifically be sought and the matter finally decided by the Council of Ministers." In the batch of cases which has been disposed of by the High Court, one of the issues which were framed for decision was as follows: "(ix) In case one or more dependants of a deceasedemployee is/are in service, though living separately, whether that can be made a ground to deny compassionate appointment to the other dependant of the deceased-employee?"

The policy contains a stipulation that where one or more persons of the family are already in the employment of the State Government or of autonomous bodies, Boards, Corporations, etc. of the State or the Central Government, employment assistance should not be provided to another member of the family. However, an exception is carved out in the case of the widow of the deceased government employee, if she claims that her employed children are not supporting her. Before allowing compassionate appointment, the opinion of the Department of Personnel and Finance Department is required to be sought and the matter is left to the ultimate decision of the Council of Ministers.

The High Court while deciding issue (ix) has relied upon the decision of this Court in Govind Prakash Verma Vs. Life Insurance Corporation of Indi a1 more specifically on the observation that the mere fact that the elder brother of the applicant was engaged in agricultural work and was also doing the work of a casual painter, would not be construed as gainful employment. This finding in Govind Prakash Verma is purely on the facts of that case and cannot be construed to be of any relevance to the present case. The High Court has observed that the State should consider cases for appointment on compassionate basis by dealing with the applications submitted by sons, or as the case may be, daughters of deceased government employees, even though, one member of the family is engaged in the service of the government or an autonomous board or corporation.

This direction of the judgment of the High Court virtually amounts to a mandamus to the State Government to disregard the terms which have been stipulated in paragraph 5(c) of its policy dated 18 January 1990. The policy contains a limited exception which is available only to a widow of a deceased employee who seeks compassionate appointment even though one of the children of the deceased employee is gainfully employed with the State. The basis for this exception is to deal with cases where the widow is not being supported financially by her children. In the exercise of judicial review under Article 226 of the Constitution, it was not open to the High Court to re-write the terms of the policy.

It is well-settled that compassionate appointment is not a matter of right, but must be governed by the terms on which the State lays down the policy of offering employment assistance to a member of the family of a deceased government employee. [Umesh Kumar Nagpal Vs. State of Haryan a2, General Manager (D & PB) Vs. Kunti Tiwary 3,Punjab National Bank Vs. Ashwani Kumar Tenej a 4, State Bank of India Vs. Somvir Sing h5, Mumtaz Yunus Mulani Vs. State of Maharashtr a6,Union of India Vs. Shashank Goswam i7, Stat e Ban k of India Vs. Surya Narai n Tripath i 8 and Canara Ban k Vs . M. Mahesh Kuma r9] For the above reasons, we are of the view that the judgment of the High Court is unsustainable. The High Court has virtually re-written the terms of the policy and has issued a direction to the State to consider applications which do not fulfill the terms of the policy.

This is impermissible. That apart, we find from the record that the father of the respondent died on 4 January 1997. Though the respondent applied on attaining majority, as permissible under the policy, the application was rejected on 25 April 2008. The Writ Petition was filed nearly two years and six months thereafter. Apart from stating that the elder brother of the respondent who was engaged in government service was living separately, there were no factual averments in support of the plea. In any event, as we have already held, the High Court was not justified in issuing a direction which would breach the policy framed by the State. For these reasons, we allow the appeal and set aside the directions issued by the High Court in its impugned judgment and order, as noted earlier. In consequence, the Writ Petition filed by the respondent shall stand rejected.

No costs.

.............................J. (DR. DHANANJAYA Y. CHANDRACHUD)

.............................J. (HEMANT GUPTA)

NEW DELHI

JANUARY 17, 2019

1 (2005) 10 SCC 289

2 (1994) 4 SCC 138

3 (2004) 7 SCC 271

4 (2004) 4 SCC 265

5 (2007) 4 SCC 778

6 (2008) 11 SCC 384

7 (2012) 11 SCC 307

8 (2014) 15 SCC 739

9 (2015) 7 SCC 412

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