State Of Haryana And Ors. v. Umesh Kumar Nagpal .

Harjit Singh Bedi, J.:— By the present judgment, we propose to dispose of Letters Patent Appeal No. 734 of 1992 and Civil Writ Petition No. 6357 of 1992. The facts have been taken from the former case.

2. On December 22, 1970, the Government of Haryana, the present appellants, issued instructions for the purpose of alleviating the sufferings of the families of those government employees who happened to die while in service. These instructions provided that one or more members of the family of the deceased employee would be considered for absorption in government service provided certain requirements were fulfilled. On July 13, 1971, another circular was issued wherein it was made clear that it was not the intention of the government to provide employment to the dependents of a deceased employee as a matter of course, and that the merits of each individual case were required to be carefully examined.

3. It was also stated that this concession would be confined to only Class III and Class IV posts and in those cases where it was necessary to avoid exceptional hardship to the families of the deceased. Hans Raj Nagpal, father of the present respondent died on October 20, 1985 while in government service as an Assistant Excise and Taxation Officer, Gurgaon. Taking the benefit of the instructions aforesaid, the respondent who has a post-graduate degree in two subjects, applied for appointment to a government service. He represented that as he fulfilled the qualifications for the post of Excise and Taxation Officer, he should be appointed to that post. Afer consideration of the matter, the respondent was, on October 31, 1986, offered an appointment as Taxation Inspector instead. He chose not to join this post and continued to make representations for appointment to the post of Excise and Taxation Officer and on having secured no positive response, he approached this Court by way of a writ petition which was allowed on February 21, 1992 and a direction was issued to the appellant-State of Haryana to appoint the respondent as Excise and Taxation Officer. Aggrieved by the aforesaid judgment, the present Letters Patent Appeal has been filed.

4. The learned Single Judge in the course of his judgment, took into account the fact that the averments in the writ-petition had not been controverted as the State despite having been given a number of opportunities to do so, did not choose to file a reply. The respondents case in the writ petition was that the denial of the post of Excise and Taxation Officer which was a class II post on the ground that the instructions of 1971 provided for such employment only against Class III and Class IV posts, was untenable, as the appellant State had, in a number of cases, deviated from its stipulated policy and had given appointment to class I or Class II posts. It was specifically pointed out that the son of Raghbir Singh, Vinod Dahiya son of Balbir Singh and Smt. Bimla Chohan were all given appointments against Class II post and the last two had been appointed as Excise and Taxation Officer, and Assistant Excise and Taxation Officer, respectively in this very department itself. The writ-petitioner averred that his case had been recommended by Department to the Commissioner, Excise and Taxation and that he having higher qualifications was entitled to appointment in preference to these, persons. The learned Single Judge, therefore, while relying on the judgment of this Court reported as Daya Krishan Bhardwaj v. The Commissioner and Secretary to Government, Haryana, 1989 (5) Services Law Reporter, 153, held that there was no justifiable reason to deny an appointment to a Class II post when, admittedly, such a post had been given to number of persons earlier.

5. At the stage of hearing of this matter, we asked the learned counsel for the appellants to produce before us the relevant instructions from 1970 up to the date with regard to the absorption or appointment of heirs of government employees, who died while in service. We have perused the instruction dated December 22, 1970, July 13, 1971, July 7, 1985, October 31, 1985, March 25, 1987, and November 3, 1988 and find that the consistent stand of the State Government up to the November 3, 1988, has been that the appointments on compassionate grounds were to be confined only to Class III and Class IV posts and it was for the first time on November 3, 1988 vide instructions which have been appended as Annexure R-4 with the written statement in the reply filed in Civil Writ Petit on No. 6357 of 1992, that a solitary exception was made and appointment against a Class II post could also be considered provided the person concerned lad technical qualifications such as M.B.B.S, B.E and B. Tech. etc. It has also been stated in the instructions aforesaid that in future, cases for providing employment and financial help, would not be considered after three years from the date of death of an employee. Viewed in the light of the instructions referred to above, it is to be seen whether the respondent, herein, was entitled as a matter of right, to claim appointment to the post of Excise and Taxation Officer.

6. The learned State Counsel has urged that the instructions referred to above, were in the nature of guidelines and were invariably followed but were deviated from in only certain very exceptional circumstances and cases. He has asserted that as a matter of policy, recruitment could be made against Class III and Class IV posts only and under instructions of November 3, 1988, Annexure P-4 to the civil writ petition exception was made for the first time for appointment to Class II posts with respect to those claimants who had technical qualifications. He has also referred to paragraph 6 of the reply filed in Civil Writ Petition No. 6357 of 1992 which was ordered to be heard with the present Letters Patent Appeal. The paragraphs reads as under:—

“That in reply to para 6 it is submitted that the petitioner had cited some cases where gazetted posts were provided to some persons. It is clear from the instructions, Annexures R-2 and R-3, that the intention of the Government is not to provide employment to the dependant of the deceased Government employees as a matter of course. After examination of an individual case, if employment is to be given, it could be given against Class III and IV posts with a view to avoid financial hardship. The post of Excise and Taxation Officer is a Class II post.. In making appointment to Class II and higher posts under the ex-gratia policy, the Haryana Public Service Commissioner is consulted and the matter is placed before the Council of Ministers for consideration. It is only thereafter that exceptions are created in individual cases, keeping in view the totality of circumstances. Thus, it is only after careful consideration that individual exceptions are created. It is also submitted that these exceptions are created rarely, keeping in view the facts and circumstances of each individual case.”

7. It is, therefore, clear from the stand of the State that some exceptions have been made but under exceptional circumstances and that too after a decision had been taken at the highest level. We are of the view that extra-ordinary situations require extraordinary remedies and it is open to the government in real hard cases to deviate from the letter and spirit of the instructions and to provide relief in cases where it is so warranted. To hold as a matter of law that the Government cannot deviate even minutely from the policy of providing appointment only against Class III and Class IV posts, would be to ignore the reality of life these days. It would be ridiculous to expect that a dependant of a deceased Class I Officer, should be offered appointment against a Class HI or IV post. While we leave it to the government to exercise its discretion judiciously in making appointments to Class I or II posts on compassionate ground yet a word of caution needs to be struck. It is to be noted that such appointments should be ordered in the rarest of rare cases, and in very exceptional circumstances. As a matter of fact, we would recommend that the government should frame a policy even for such appointments. It is also to be noted that father of the respondent had died while serving as an Assistant Excise and Taxation Officer which is Class II post but the respondent sought appointment against a still higher post of Excise and Taxation Officer. This, obviously, was not acceptable to the State Government.

8. Mr. Jagan Nath Kaushal, Senior Advocate, appearing for the respondent has, however, urged that this Court should as a matter of policy be liberal in adjusting those persons who seek appointments on compassionate grounds and the respondent who is more highly qualified than Vinod Dhahiya and Smt. Chohan, who have been appointed to Class II posts in this very department, ought to have been appointed to a similar post. He has urged that the Supreme Court has laid down the parameters and guidelines for the exercise of power of appointment in such situations. He has referred to Smt. Sushma Gosain v. Union of India, 1989 (4) S.L.R 327, Tarsem Kumar Sehgal v. The State of Punjab, 1986 (3) S.L.R 774 and Commissioner and Secretary to Govt., Haryana, Department of Home, Chandigarh v. Daya Krishan Bhardwaj, 1990 (5) S.L.R 776, in addition to Daya Krishan Bhardwaj's case (supra).

9. We have considered these judgments as well and find them wholly inapplicable to the facts of the present case. In Smt. Sushma Gosain's case (supra) the facts were that she being a widow of a deceased employee was selected for appointment as a Clerk in 1983 but appointment was denied to her on the ground that appointment of a lady in that particular establish ment had been prohibited as per a Government decision taken in 1985. The stand of die government was negatived and it was held that the delay between selection and the change of policy in 1985 could not work to the disadvantage of the lady. It was in that situation that the Supreme Court observed that the judgment of the High Court dismissing the writ petition of Sushma Gosain lacked a sense of justice. In Tarsem Kumar's case, the petitioner had applied for the post of a Clerk but by the time he was selected, he had sucured the necessary qualification for being appointed as an Inspector and sought appointment against that post. This claim was denied to him on the solitary ground that on the date that his father had died, he was entitled as per his qualifications to be appointed only as a Clerk and a subsequent improve ment in qualifications could not be looked into. This plea was rejected by the High Court uiid a direction was issued that he should be appointed an Inspector as he was duly qualified for that post. In Daya Krishan Bhardwaj's case, which has been relied upon by the learned Single Judge, the ultimate. decision was in favour of the employee in view of its peculiar facts but the observations in it were to the contrary. Daya Krishan Bhardwaj was selected for appointment as a Deputy Superintendent of Police which was a Class II post after a conscious decision had been taken by the Government. The Government thereafter reversed its decision and in 1987 informed him that he could be considered for appointment only as an Excise and Taxation Inspector. This action was challenged in the writ petition and the stand of the State was that the earlier decision had been reviewed as it was contrary to the government instructions which provided for appointment only against Class III and Class IV. This plea of the Government was not accepted and it was held that an appointment could be made against a Class II post as well provided the appropriate authority took into consideration the status of the deceased and the educational aualificatinns nf the annlirjint. It will, therefore, he seen that the observations in Daya Krishan Bhardwaj's case (supra) visualise that the Government may in a particular case deviate from the strict policy laid down with regard to the appointment to Class III and Class IV posts only. The judgment in Commissioner and Secretary to Government Haryana, Department of Home (supra) is only a judgment in the Letters Patent Appeal against the judgment in the earl ier cited case. In this case, on reconsideration of the matter, the Letters Patent Appeal filed was dismissed as not pressed, meaning thereby that the judgment in Daya Krishan Bhardwaj's case (supra) stood affirmed.

10. It will therefore be seen that no right having accrued to the respondent to secure appointment to the post of Excise and Taxation Officer, a directive ordering the appointment to the said post could not have been made. However, after considering the entire matter, we are of the view that should the respondent even at this stage wish to secure his appointment as an Excise and Taxation Inspector, he should be given the appointment even now.

11. In the light of what we have held, C.W.P No. 6357 of 1992 also deserves dismissal. In addition to the above matter, we are of the opinion that this writ petition suffers from the vice of laches. The petitioner in this case was offered and accepted an appointment as Excise and Taxation Inspector in 1984 although he is said to have represented for appointment to a Class II post in 1988. The writ petition was filed in the year 1992. The writ petition deserves dismissal on this additional ground as well.

12. For the reasons recorded above, the present L.P.A is allowed and C.W.P No. 8767 of 1991 and C.W.P No. 6357 of 1992 are dismissed with no order as to costs.

13. Appeal allowed.