The Allahabad High Court while allowing the petition observed that the claim for compassionate appointment under the scheme of particular year should be decided only on the basis of the applicable policy as existing on the date of demise, unless a subsequent policy is made applicable retrospectively.
A Single Bench of Justice Prakash Padia passed this order while hearing a petition filed by Saurabh Suchari.
The petition has been filed by the petitioner inter-alia with the prayer to quash the order dated 09.11.2020 passed by the District Commandant Home Guard, Kanpur Nagar / respondent no 4 whereby the compassionate appointment of the petitioner has been restricted to only on the post of Home Guard (Volunteer) in Home Guards Department.
A further prayer has been made to consider the case of the petitioner for compassionate ground on the post of Honorary Company Commander in the Home Guard Department, pursuant to the Rules prevailing at the time of the death of the father of petitioner namely 18.10.2020.
The facts of the case are that the father of the petitioner while working on the post of Honorary Company Commander in Home Guard Department died on 18.10.2020 leaving behind his wife and two children. Mother of the petitioner submitted an application on 20.10.2020 for giving compassionate appointment to the petitioner on the post of Honorary Company Commander.
Along with the application form, an affidavit of the mother and sister of the petitioner was also submitted, stating therein that they have no objection in respect of appointment of the petitioner under dying-in-harness rules. The qualification of the petitioner is intermediate on the date of the application filed by the mother of the petitioner namely on 20.10.2020 which is a requisite qualification as per the Government Order dated 01.09.2011.
Respondent no 4 issued a letter dated 20.10.2020 being a Letter requiring the petitioner to send certain papers and documents. After the aforesaid papers and documents were submitted, the petitioner was subjected to medical examination by the Chief Medical Officer, Kanpur Nagar, where he was found medically fit. In the meanwhile, the Government Order dated 03.11.2020 was issued by the Additional Chief Secretary, Government of U.P Lucknow, whereby the decision has been taken to appoint any person on compassionate ground only on the post of Home Guards (Volunteers).
Subsequent to the same, the order dated 09.11.2020 was passed by the respondent no 4 namely District Commandant, Home Guards, Kanpur Nagar, taking into consideration the aforesaid Government Order requiring the petitioner for his appointment on the post of Home Guards (Volunteers). By the aforesaid letter, the petitioner was directed to submit his consent for his appointment on the post of Home Guards (Volunteers).
It is argued that the order dated 09.11.2020 by which the petitioner was given appointment on the post of Home Guards (Volunteers) is absolutely illegal in the eyes of law especially in view of the letter dated 04.04.2013.
It is argued that the order impugned has been passed taking into consideration the Government Order dated 03.11.2020 but the same is not applicable in the case of petitioner since the case of the petitioner will be governed by the provisions of Government Order which was applicable at the time of the death of petitioner’s father namely 18.10.2020.
It is argued that at the time of death of the father of petitioner, the Government Order dated 04.04.2013 was in existence and hence the petitioner is entitled for the consideration of his case as per the aforesaid Government Order and the Government Order dated 03.11.2020 will not apply, insofar as the case of the petitioner is concerned.
It is further argued that the Government Order dated 03.11.2020 came into force with immediate effect namely on 03.11.2020, hence the same will not apply with retrospective date namely on 18.10.2020 when the father of the petitioner died.
The Court observed that,
From the perusal of the record, it transpires that the father of the petitioner died while working on the post of Honorary Company Commander in the Home Guard Department on 18.10.2020. The application form submitted by the mother of the petitioner for the appointment of his son (petitioner) was duly taken into consideration and thereafter a decision was taken by the respondent no 4 to provide the appointment to the petitioner on the post of Home Guard (Volunteers) vide order dated 09.11.2020.
The aforesaid order was passed taking into consideration the Government Order dated 03.11.2020. It is admitted fact between the parties that the father of the petitioner died before 03.11.2020, the aforesaid Government Order came into force with immediate effect, hence the same will not apply retrospectively.
In the case the Government Order dated 03.11.2020 was issued after the death of the father of the petitioner namely 20.10.2020, and since the same was applied with immediate effect, the Court is of the opinion that the order dated 09.11.2020 passed by the respondent no 4 is liable to be set aside and is hereby set aside by the high court.
With the aforesaid observation, the Court allowed the petition.
“The respondent no 4 is directed to consider the claim of the petitioner a fresh taking into consideration the scheme which was in existence on the date of death of the father of the petitioner. The aforesaid decision will be taken within a period of three months from the date of communication of this order before him”, the order reads.