Himachal Pradesh High Court Sets Aside Requirement Of 'Bonafide Himachali Certificate' For Compassionate Employment

The Himachal Pradesh High Court has struck down the requirement of furnishing a 'Bonafide Himachali Certificate' for obtaining compassionate appointment, holding such a condition to be in violative of Article 16(2) of the Constitution, which prohibits discrimination on the basis of residence.

A bench of Chief Justice M.S. Ramachandra Rao and Justice Ajay Mohan Goel passed the order while hearing a plea revolving around petitioner's eligibility for employment on compassionate grounds after the demise of her father, a Forest Guard with the respondent-Corporation, an undertaking of Himachal Pradesh Government.

The petitioner, one of the deceased's daughters, sought employment with the respondent-Corporation as a Clerk following the demise of her father while in service. Her application was initially rejected by the authorities, citing non-submission of certain required documents, including a Character Certificate issued by the Executive Magistrate or Tehsildar.

The petitioner, a resident of Punjab, submitted a Character Certificate issued by the Senior Superintendent of Police from her State, arguing that obtaining the specific certificate as demanded by the authorities in Himachal Pradesh was not possible in Punjab.

Furthermore, the petitioner submitted that she was asked to provide a Bonafide Himachali Certificate, but the relevant rules mandating such a certificate had been abolished by the State Government after 20.04.1974. She contended that this insistence on producing a Bonafide Himachali Certificate was unconstitutional, as it violated Article 16(2) of the Constitution, which ensures equal treatment of citizens in matters of employment.

The respondents, opposing the petitioner's claim, argued that matters not covered by the bye-laws of the Respondent-Corporation would be governed by the provisions applicable to Himachal Pradesh Government employees. They referred to an Office Memorandum dated 07.03.2019, which outlined the requirement of submitting the Bonafide Himachali Certificate for compassionate appointment. The respondents further contended that since the petitioner's submissions did not align with the compassionate policy's conditions, her request for employment could not be granted.

Adjudicating upon the matter the bench emphasized the principle of "Lex non cogit ad impossibilia," which means that the law does not compel a person to do what is impossible for them to perform. The court cited previous judgments of the apex court on the subject which upheld this principle, reinforcing the fact that the petitioner should not be compelled to produce a Character Certificate from the specific authorities when it was not possible due to her residency in Punjab.

Addressing the requirement of a Bonafide Himachali Certificate, the court sided with the petitioner's arguments, highlighting that Article 16(2) of the Constitution protects citizens from discrimination based on residence.

“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”, the bench said while adding “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”.

In light of these observations, the Court allowed the writ petition, setting aside the requirement of a Bonafide Himachali Certificate and directing the authorities to accept the Character Certificate issued by the Senior Superintendent of Police from Punjab. The court further directed the respondents to provide the petitioner with a compassionate appointment within four weeks. Additionally, the respondents were ordered to pay Rs. 10,000/- as costs to the petitioner.

Case Title: Sandeep Kaur Vs State of HP

Citation: 2023 LiveLaw (HP) 56

Click Here To Read/Download Judgment