1. By way of this writ petition, the petitioner has mainly prayed for the following reliefs:-

"i) That the order dated 03-12-2019, Annexure P-9 vide which the case of the petitioner for compassionate employment been has wrongly, unfairly, arbitrarily and illegally rejected may kindly be quashed and set aside.

ii) That the Respondents may very kindly be directed to consider the case of the petitioner for compassionate employment under the old criteria which was prevalent in the year 2015 i.e. at the time of submitting the application for compassionate appointment by the petitioner in view of the judgment rendered by the Hon'ble Supreme Court of India, consequently granting regular employment on compassionate basis to the petitioner.

iii) That the Respondents may very kindly be directed to give the seniority on notional basis to the petitioner from the date similar situated persons or the persons whose cases were recommended much after the case of the petitioner, have been given employment under the old criteria of 2015."

2. Brief facts necessary for the adjudication of the present petition are that the petitioner, at a tender age of eight years, lost his parents in an unfortunate incident that took place on 20.07.2004. At the time of death of his parents, the father of the petitioner was serving as a JBT (Class-III) with the respondent-Department on regular basis. After the petitioner became a major, he applied for appointment on compassionate basis in the year 2015. As is evident from the pleadings, the case of the petitioner was initially rejected vide communication dated 31.01.2017, which is evident from para-2 of the preliminary submissions of the reply filed by respondents No. 1 to 5, by assigning the following reasons:-

"2. That the father of the petitioner was employee of Education Department and died while in service on 20-07-2004. The case of the petitioner for providing employment on compassionate ground was received from the Deputy Director of Elementary Education, Kullu, on 30-03-2015, thereafter the matter was submitted to the Government for providing employment to the petitioner on compassionate ground on 23-07-2015. The matter was considered at Government level and after consultation with the Finance Department; it was observed that "the applicant concerned didn't apply for compassionate employment within the permissible time limits of three years from the date of death of the deceased Government employee, hence, the instant proposal of the Department cannot be considered, in terms of one of the decision passed by the Hon'ble High Court on 06.10.2015 in CWP No 9094 of 2013." vide letter dated 31.01.2017."

3. Thereafter, the petitioner submitted his case for re- consideration for providing employment on compassionate basis and this time, in terms of the impugned communication, i.e. Annexure P-9, dated 03.12.2019, the case of the petitioner stands rejected on the ground that the total income of the family of the petitioner exceeds the minimum income criteria laid down in the policy which governs the appointment on compassionate basis.

4. Learned Counsel for the petitioner has submitted that the father of the petitioner died in the year 2004. In terms of the Compassionate Appointment Policy which was prevailing at the time when the petitioner lost his father, there was no income criteria contained therein. He further submitted that initially the rejection of the case of the petitioner on 31.01.2017 was perverse as the decision was taken by the Authorities without appreciating that the petitioner could not have applied for appointment on compassionate basis within the period of three years as from the date of death of his father as he was just eight years old at the time of death of his father. It is in these circumstances that he took up the matter with the respondent-Department for appointment on compassionate basis and without appreciating that it is the policy in vogue when the death took place which has to be taken into consideration, the respondents have rejected the case of the petitioner by applying the current policy for compassionate appointment which act of the respondents is bad. Accordingly, he submitted that impugned communication be quashed and set aside and the respondents be directed to grant appointment on compassionate basis to the petitioner.

5. Learned Additional Advocate General has defended the act of the respondents by placing reliance on the reply of the respondents. He submitted that the case of the petitioner was earlier rejected on the ground that he had not applied for compassionate appointment within three years as from the date of death of the government employee, which act of the department was in consonance with the judgment of this Court passed in CWP No. 9094 of 2013 and further now, his case has been rightly rejected by the Department in terms of Annexure P-9 because the total income of the family of the petitioner is in excess of the minimum income limit which renders an incumbent eligible for appointment on compassionate basis. Accordingly, he submitted that as there is no merit in the present petition, the same be dismissed.

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

7. It has not been disputed by the respondents that at the time when the petitioner lost his father, who died in harness, the petitioner was just 8 years old. Even for the purpose of appointment on compassionate basis, an incumbent can apply for appointment only once he gains eligibility for being appointed as a government servant. Therefore, the stand of the State that the case of the petitioner was initially rightly rejected as he had not applied for appointment within three years as from the date of death of his father is worth rejection. The judgment of this Court passed in CWP No. 9094 of 2013, nowhere lays down the law that even in a case where the job seeker happens to be a minor at the time of death of his predecessor-in-interest and he has not attained the age of majority within three years as from the date of death of his father, the rider of applying within three years as from the date of death of deceased-employee shall apply. Therefore, this Court has no hesitation in holding that the earlier rejection of the case of the petitioner was completely uncalled for and not sustainable in law.

8. Now presently, in terms of the impugned communication Annexure P-9, the case of the petitioner has been rejected on the ground that the income of the family of the deceased employee from all sources, including family pension at the time of consideration by the Department was more than the prescribed income limit.

9. Hon'ble Supreme Court thereafter in Secretary to Government Department of Education (Primary) and others vs. Bheemesh alias Bheemappa, (2021) 20 Supreme Court Cases 707, has been pleased to hold that in a matter where a candidate applies for appointment on compassionate basis, it is the date of death of deceased employee, which guides the consideration of such an application and the policy which was in vogue governing appointment on compassionate basis as on the date when the death took place, has to be taken into consideration while deciding the application. The relevant part of the judgment of Hon'ble Supreme Court is being quoted herein below:-

"20. The important aspect about the conflict of opinion is that it revolves around two dates, namely, (i) date of death of the employee; and(ii) date of consideration of the application of the dependant. Out of these two dates, only one, namely, the date of death alone is a fixed factor that does not change. The next date namely the date of consideration of the claim, is something that depends upon many variables such as the date of filing of application, the da te of attaining of majority of the claimant and the date on which the file is put up to the competent authority. There is no principle of statutory interpretation which permits a decision on the applicability of a rule, to be based upon an indeterminate or variable factor. Let us take for instance a hypothetical case where 2 Government servants die-in-harness on January 01, 2020. Let us assume that the dependants of these 2 deceased Government servants make applications for appointment on 2 different dates say 29.05.2020 and 02.06.2020 and a modified Scheme comes into force on June 01, 2020. If the date of consideration of the claim is taken to be the criteria for determining whether the modi fied Scheme applies or not, it will lead to two different results, one in respect of the person who made the application before June 1, 2020 and another in respect of the person who applied after June 01, 2020. In other words, if two employees die on the same date and the dependants of those employees apply on two different dates, one before the modified Scheme comes into force and another thereafter, they will come in for differential treat ment if the date of application and the date of consideration of the same are taken to be the deciding factor. A rule of interpretation which produces different results, depending upon what the individuals do or do not do, is inconceivable. This is why, the managements of a few banks, in the cases tabulated above, have introduced a ru le in the modified scheme itself, which provides for all pending applications to be decided under the new/modified scheme. Therefore, we are of the considered view that the interpretation as to the applicability of a modified Scheme should depend only upon a determinate and fixed criteria such as the date of death and not an indeterminate and variable factor."

10. Thereafter, Hon'ble Supreme Court in State of Madhya Pradesh and others versus Ashish Awasthi, (2022) 2 Supreme Court Cases 157, has again reiterated that as per settled proposition of law laid down by this Court for appointment on compassionate basis, the policy prevalent at the time of death of the deceased employee only is required to be considered and not the subsequent policy.

11. In light of said law laid down by Hon'ble Supreme Court and in light of the fact that the impugned Annexure dated 03.12.2019, does not mention as to which particular policy was taken into consideration by the respondents while deciding the case of the petitioner for appointment on compassionate basis, this petition is allowed to the extent that the impugned communication Annexure P-9, dated 03.12.2019 is quashed and aside and the respondents are directed to reconsider the case of the petitioner for appointment on compassionate basis by taking into consideration the policy governing appointment on compassionate basis as on the date when the father of the petitioner died i.e. 20.07.2004. Let needful be positively done within a period of eight weeks from today.

12. With these observations, the writ petition stands disposed of. Pending miscellaneous application(s), if any, also stand disposed of accordingly.