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2026 DAILYLAW 16817 (HP)

Surinder Kumar v. State of Himachal Pradesh

2026-01-09

Ranjan Sharma

body2026
JUDGMENT : Ranjan Sharma, J. Petitioner, Surinder Kumar, had initially filed Civil Writ Petition No.7915 of 2012 and upon establishment of Learned State Administrative Tribunal, the same was transferred to Tribunal; and upon abolition of Tribunal, the same stands re-transferred to this Court as CWPOA No.2668 of 2019, praying for following relief(s): (i). That writ in the nature of mandamus may very kindly be issued directing the respondents to consider the case of the petitioner for the post of Clerk as well as for the post of Peon from the date, when other persons have been appointed. The respondents may kindly be directed to consider the case of the petitioner with effect from 2004 and seniority may also be given to the petitioner. (ii). That the respondents may kindly be directed to give all consequential benefits accrued from the date, when other persons have been appointed on regular basis on compassionate grounds.” FACTUAL MATRIX: 2. Matter relates to the prayer for compassionate appointment. 2(i). Prayer of the petitioner is for directing the respondents to consider his case for appointment for the post of Clerk or for the post of Peon on compassionate grounds w.e.f. 2004 with seniority by way of instant petition, which was filed on 05.09.2012. 2(ii). Reply-Affidavit indicates that father of the petitioner died on 14.05.2004 while serving as a work charge Pump Attendant under Executive Engineer, IPH, Division Baddi. It is averred that the present petitioner applied for job and his case was sent to the Superintending Engineer, IPH, Circle Sundernagar, on 28.06.2006 and in view of the policy dated 16.08.2005 the competent authority gave approval for appointing the petitioner as a Beldar on Daily Wage basis on 01.07.2006 [Annexure R-II]. 2(iii). Reply-Affidavit further indicates that pursuant to the approval, the Appointment Letter was issued to the petitioner appointing him as Daily Wage Beldar on 03.07.2006 [Annexure R-III] of the petitioner has joined as Beldar on daily wage basis on 05.07.2006. 3. Heard, Ms. Salochna Kaundal, Learned Counsel for the petitioner, and Mr. Sumit Sharma, Learned Deputy Advocate General, for the respondents and have gone through the material on record. CLAIM FOR CHANGE IN APPOINTMENT DEHORS SCHEME IMPERMISSIBLE: 4. Taking into account that petitioner’s father Late Shri Rattan Chand while working as Work Charge Pump Attendant died on 14.05.2004. 3. Heard, Ms. Salochna Kaundal, Learned Counsel for the petitioner, and Mr. Sumit Sharma, Learned Deputy Advocate General, for the respondents and have gone through the material on record. CLAIM FOR CHANGE IN APPOINTMENT DEHORS SCHEME IMPERMISSIBLE: 4. Taking into account that petitioner’s father Late Shri Rattan Chand while working as Work Charge Pump Attendant died on 14.05.2004. While the claim was pending, the State Government amended the policy dated 18.01.1990 on 16.08.2005, inserting Clause 2(b)(ii), which reads as under:- “Government of Himachal Pradesh Department of Personnel Appointment-II No.Per (AP-II) F (4)-4/89-V, Dated Shimla-171002 16th August, 2005. Office Memorandum 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. xx…x…xx Accordingly, para 2(b) of this Department O.M. of even number dated 18.01.1990 may be deemed to have been amended as under:- “2(b)(ii) A work Charge/Beldar on daily wages with 7 years continuous service who dies in harness, one dependent may be appointed on daily wages. Appointment will be done by Deputy Commissioners, 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. Principal Secretary (Personnel) to the Government of Himachal Pradesh.” Perusal of Clause 2(b)(ii) provides that in case of death of a work charge beldar or a daily wager having rendered seven years continuous service dies in harness, therefore, in that eventuality, the appointment was to be given to a dependent on daily wage basis. In the backdrop of Clause 2(b)(ii) of the amended policy, once the petitioner’s father, namely, Late Shri Rattan Chand died during the course of employment, while serving as a Work Charge Beldar, therefore, the petitioner was validly appointed as Daily Waged Beldar on 03.07.2006 [Annexure R-III] and he joined as such on 05.07.2006 also. In these circumstances, once the petitioner was given appointment in accordance with the applicable policy, therefore, the claim for change in appointment from daily wager to regular is not tenable. AFTER CONSUMATION OF COMPASSIONATE APPOINTMENT FURTHER CONSIDERATION UNWARRANTED: 5. In these circumstances, once the petitioner was given appointment in accordance with the applicable policy, therefore, the claim for change in appointment from daily wager to regular is not tenable. AFTER CONSUMATION OF COMPASSIONATE APPOINTMENT FURTHER CONSIDERATION UNWARRANTED: 5. While dealing with the claim of an incumbent who was a Lower Division Clerk for considering and appointing him on the post of Sub-Inspector was negated by the Hon’ble Supreme Court in Director of Town Panchayat and Others versus M. Jayabal and Another, 2025 SCC OnLine SC 2794, with the mandate that once the right for consideration for appointment on compassionate grounds was consummated then, further or second consideration for another or higher post was impermissible with the finding that after acceptance of compassionate appointment, his right stood exercised and no further consideration was permissible, which so as to lead towards “endless compassion” in the following terms: “8.1 The next issue which requires consideration by this Court is whether the dependent family member of a deceased employee, after being appointed on a post on compassionate basis, can later on seek indulgence of the employer to appoint him on a higher post. 9. The law on the issue is well-settled. The issue as to whether a second option can be exercised by the dependent family member of the deceased employee, once option for compassionate appointment has already been exercised and the dependent family member of the deceased joined on the post to which appointment was given, was considered by this Court in State of Rajasthan v. Umrao Singh. In this case, the deceased was working as Sub-Inspector, CID. On account of his death during service, application for appointment on compassionate basis was made. The dependent was offered appointment on the post of L.D.C. The same was accepted and the incumbent joined on the post. Later, he requested for consideration of his case for appointment on the post of Sub-Inspector, being eligible for the same. This Court negated the claim holding that once right for consideration for appointment on compassionate post was consummated, any further or second consideration for a higher post on the ground of compassion would not arise. The relevant paragraph 8 is extracted below: “8. Admittedly the respondent's father died in harness while working as Sub-Inspector, CID (Special Branch) on 16-3-1988. This Court negated the claim holding that once right for consideration for appointment on compassionate post was consummated, any further or second consideration for a higher post on the ground of compassion would not arise. The relevant paragraph 8 is extracted below: “8. Admittedly the respondent's father died in harness while working as Sub-Inspector, CID (Special Branch) on 16-3-1988. The respondent filed an application on 8-4-1988 for his appointment on compassionate ground as Sub-Inspector or LDC according to the availability of vacancy. On a consideration of his plea, he was appointed to the post of LDC by order dated 14-12-1989. He accepted the appointment as LDC. Therefore, the right to be considered for the appointment on compassionate ground was consummated. No further consideration on compassionate ground would ever arise. Otherwise, it would be a case of “endless compassion”. Eligibility to be appointed as Sub-Inspector of Police is one thing, the process of selection is yet another thing. Merely because of the so-called eligibility, the learned Single Judge of the High Court was persuaded to the view that direction be issued under proviso to Rule 5 of Rules which has no application to the facts of this case.” 10. In view of the law laid down by this Court, it stands clarified that the once the right of an applicant to be considered for appointment on compassionate grounds has been consummated, no further consideration is warranted. Once dependent of a deceased employee is offered employment on compassionate basis, his right stood exercised. Thereafter, no question arises for seeking appointment on a higher post. Otherwise, it would be a case of ‘endless compassion’. BELATED CLAIM DISENTITLES PETITIONER FOR CHANGE IN APPOINTMENT: 6. Petitioner was appointed as Beldar on daily wage basis on 05.07.2006 and the instant petition claiming change was filed after 06 years, which suffers from delay and laches. After having accepted the daily waged appointment on 05.07.2006, the petitioner slept over his rights/remedies for six years and the claim for appointment on another post and that too in a capacity other than daily wage appointment dehors the Policy-OM dated 16.08.2005 cannot be accepted. Further, the claim for regular appointment as Peon or Clerk, cannot be granted, in view of the Clause-11 of the Policy, which dis-entitles a claim for change in post after accepting the same. DIRECTIONS: 7. Further, the claim for regular appointment as Peon or Clerk, cannot be granted, in view of the Clause-11 of the Policy, which dis-entitles a claim for change in post after accepting the same. DIRECTIONS: 7. In view of above discussion and for the reasons recorded hereinabove, the instant petition is dismissed, in the following terms: (i). Claim of petitioner for change of appointment from post of Peon [Class-IV] to the post of Clerk [Class-III] is disallowed; (ii). Claim for change in post is not permissible in view of embargo in Clause 11 of Policy dated 18.01.1990 and the mandate of law of Hon’ble Supreme Court in case of M. Jayabal [supra]; (iii). Parties to bear respective costs. Pending miscellaneous application(s), if any, shall also stand disposed of.