Sahil Sharma Vs State of Hp and Others

Whether approved for reporting?¹ Yes _____________________________________________________ For the petitioner : Mr. Diwan Singh Negi, Advocate. For the respondents : Mr. Rahul Thakur, Deputy Advocate General for respondents No. 1 and 2. : M/s Rajiv Rai and Rajni Gandhi, Advocates for respondents No. 3 to 5. Ajay Mohan Goel, Judge (Oral)

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By way of this writ petition, the petitioner has primarily

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prayed for the following reliefs:-

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“A. That the Hon'ble Court may kindly be pleased to issue an appropriate writ whereby, the communication dated 27.01.2022 vide Annexure P/2 and further decision taken by the respondent No. 3 vide communication dated 03.04.2022 qua the petitioner whereby, the petitioner has been declared in eligible for the appointment on compassionate ground in the respondent No. 4 trust, may kindly be quashed and set aside.

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1 Whether reporters of the local papers may be allowed to see the judgment?

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2024:HHC:9945 B. That the condition of furnishing the bonafide Himachali Certificate for compassionate appointment if any in the policy framed by the respondent No. 4 for compassionate appointment if any, the same may be declared illegal, arbitrary, discriminatory and unconstitutional.

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C. That the respondents may kindly be directed to consider the case of the petitioner for compassionate appointment afresh in the light of judgment/decision dated 26.07.2023 passed by the Division Bench of this Hon'ble High Court in Civil Writ Petition No. 4304 of 2023 titled as Sandeep Kaur vs. State of Himachal Pradesh & others.”

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Brief facts necessary for the adjudication of this writ petition are that late father of the petitioner was an employee of the respondent-Temple Trust. He died in harness on 12.02.2021. The petitioner applied for appointment on compassionate basis after the death of his father in terms of the policy of the Temple Trust. Vide Annexure P-3, dated 03.04.2022, the case of the petitioner has been rejected by the Temple Trust on the ground that the petitioner does not possess a bonafide Himachali Certificate and therefore, he cannot be offered appointment on compassionate basis.

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Learned Counsel for the petitioner has submitted that the refusal to offer appointment to the petitioner on compassionate basis on the ground that he does not possess bonafide Himachali

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2024:HHC:9945 Certificate, is arbitrary and unconstitutional as it violates Articles 15 and 16 of the Constitution of India and he further submitted that the issue is no more res integra and Hon’ble Division Bench of this Court in CWP No. 4304 of 2023, titled as Sandeep Kaur vs. State of H.P. and others , decided on 26.07.2023, has already held that no citizen can be discriminated on the basis of residence and for the purpose of offering appointment on compassionate basis, a candidate cannot be insisted to furnish a bonafide Himachali Certificate. Accordingly, he prays that the writ petition be allowed and the impugned communication dated 27.10.2022 (Annexure P-2) be set aside and the respondents be directed to offer appointment to the petitioner on compassionate basis.

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Learned Deputy Advocate General as well as learned Counsel for the Temple-Trust has submitted that the Temple Trust is following the policy of the State Government by adopting it/ reiterating in the Temple Sri Naina Devi Ji Employees Service Byelaws, 2023. The Court has been further informed both by learned Deputy Advocate General as well as learned Counsel for the Temple Trust that as for the purpose of appointment on compassionate basis, it is mandatory for an incumbent to possess a bonafide Himachali Certificate, therefore, as the petitioner was not possessing such a certificate, the case of the petitioner was rightly rejected.

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2024:HHC:9945

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They accordingly submitted that as there is no merit in the present writ petition, the same be dismissed.

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Learned Deputy Advocate General has also drawn the attention of the Court to Annexure R-1/1, dated 17.03.2022, appended with reply of respondents No. 1 to 3 and has submitted that vide this communication, all the Commissioners-Temple Trustcum-Deputy Commissioners, Himachal Pradesh, were intimated that as far as the appointment on compassionate basis is concerned, with regard to the Temples which are managed under the Himachal Pradesh Public Religious Institutions and Endowment Act, 1984, the policy notified by the Government for providing employment on compassionate basis, be implemented.

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I have heard learned Counsel for the parties and carefully gone through the pleadings as well as documents appended therewith.

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The facts are not much in dispute. The father of the petitioner was an employee of the respondent-Temple Trust, who died in harness on 12.02.2021. Therefore, when the petitioner applied for appointment on compassionate basis, his case was rejected on the ground that the petitioner does not possess the bonafide Himachali Certificate.

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Article 16(2) of the Constitution of India provides that no

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2024:HHC:9945

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citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of any employment or office under the State.

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In light of the said constitutional provision, this Court is of the considered view that the rejection of the case of the petitioner for grant of appointment on compassionate basis, solely on the ground that the petitioner does not possess a bonafide Himachali Certificate, is not at all sustainable in the eyes of law. In fact, the act of the respondents defies Article 16(1) of the Constitution which clearly and categorically says that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.

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The issue is no more res integra also because Hon’ble Division Bench of this Court in CWP No. 4304 of 2023, titled as Sandeep Kaur vs. State of H.P. and others , decided on 26.07.2023, while being seized of a similar case, wherein the candidate therein was denied the bonafide Himachali Certificate on the ground that she was not a resident of Himachal Pradesh and this rendered her ineligible for appointment on compassionate basis, was pleased to hold that law does not compel a man to do what is not possible for him to perform. It was in the backdrop wherein a candidate seeking

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2024:HHC:9945 appointment on compassionate basis was being impressed upon to submit a Himachali Bonafide Certificate, which a candidate was not able to do as the candidate was not a bonafide Himachali. Thereafter, Hon’ble Division Bench was pleased to hold as under:-

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“17) There is a maxim in law by name ‘Lex non cogit ad impossibilia’ which means that the law does not compel a man to do what is not possible for him to perform.

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18) This principle has been followed and re-iterated by the Hon’ble Supreme Court in Chandra Kishore Jha vs. Mahavir Prasad and others1 ; Mohammed Gazi Vs. State of M.P. & others; 2 and Industrial Finance Corporation of India Ltd. Vs. Cannanore Spinning and Weaving Mills Ltd. & others.

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19) As regards the contention of the respondents that the petitioner should provide a certificate of Bonafide Resident of Himachal Pradesh is concerned, the petitioner has contended that though initially Himachal Pradesh, Manipur and Tripura Public Employment (Requirement As To Residence) Rules, 1954 were in force in the State of Himachal Pradesh which required production of such certificates, these Rules were deleted by the State Government after 20.04.1974.

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20) It is further contended that insistence on such a certificate would violate Article 16(2) of the Constitution of India and even the main 1 (1999) 8 SCC 266 2 (2000) 4 SCC 342 3 (2002) 5 SCC 54 6 clauses of the policy dt. 07.03.2019 being

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2024:HHC:9945

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relied on by the respondent do not require such a Bonafide Himachali Certificate.

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21) We agree with both these contentions raised by the petitioner’s Counsel. As per Art.16(2) of the Constitution no citizen can be discriminated on basis of residence. So insisting that petitioner produces such a certificate when it is undisputed that she is an Indian citizen and daughter of the deceased employee of the 2nd respondent cannot be countenanced.

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22) For all these aforesaid reasons, this Writ petition is allowed; the action of the respondents in refusing to give the petitioner compassionate appointment in the 2nd respondentCorporation vide letter dt. 07.06.2023 (Annexure P-5) is set aside; the respondents are directed to accept the Character Certificate issued to the petitioner by the Senior Superintendent of Police, Distt. Rupnagar, Punjab, though it is not issued by the Executive Magistrate or Tehsildar; the requirement of furnishing a Bonafide Himachali Certificate contained in Office Memorandum dt. 07.03.2019 for purpose of providing employment on compassionate grounds is set aside as being violative of Article 16(2) of the Constitution of India; and the respondents no. 2 & 3 are directed to provide such compassionate appointment to the petitioner within four weeks.”

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2024:HHC:9945 11. In the backdrop of above discussion and also the judgment of Hon’ble Division Bench in CWP No. 4304 of 2023, titled as Sandeep Kaur vs. State of H.P. and others (supra), the act of the respondents of rejecting the case of the petitioner for appointment on compassionate basis on the ground that the petitioner does not possess Himachali Bonafide Certificate is per se bad and not sustainable in the eyes of law as the appointment on compassionate basis cannot be refused on a ground which defeats the constitutional provisions per se . No other infirmity in the candidature of the petitioner has been pointed out for offer of appointment on compassionate basis.

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Accordingly, in the above backdrop, this petition is allowed. Impugned communication Annexure P-2, dated 27.01.2022, in terms whereof the case of the petitioner for grant of appointment on compassionate basis has been rejected on the ground that he does not possess bonafide Himachali certificate, is quashed and set aside and the respondents are directed to offer appointment to the petitioner on compassionate basis forthwith but not later than four weeks from today. Pending miscellaneous application(s), if any also stand disposed of accordingly.

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October 18, 2024 ( narender )

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Digitally signed by BHUPENDER KUMARDN: C=IN, O=HIGH COURT OF HIMACHAL PRADESH, OU=HIGH COURT OF HIMACHAL PRADESH SHIMLA, Phone=04d8bcd7412dcb18b7b081df02fb3b89ecc4a0c8f8a66ab97285dc56e62d41fe, PostalCode=171001, S=Himachal Pradesh, SERIALNUMBER=2ccc91b5122501da0ce3678b0e2b7bd5fa9b09937769da5501e1f4e7ad448bc5, CN=BHUPENDER KUMARReason: I am approving this document with my legally binding signatureLocation: Date: 2024-10-19 15:13:35

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BHUPENDE R KUMAR

Sahil Sharma v. State of Hp and Others

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Sahil Sharma v. State of Hp and Others

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