In a significant order, Himachal Pradesh High Court has set aside the requirement to furnish a Bonafide Himachali certificate to obtain a compassionate appointment. The High Court bench held that this violates Article 16(2) of the Indian Constitution which prohibits discrimination on the basis of place of residence.
The bench comprising Chief Justice M.S. Ramachandra Rao and Justice Ajay Mohan Goel passed this order while hearing a plea filed by a petitioner examining her eligibility for her employment on compassionate grounds after the demise of her father. Her father was a forest guard under Himachal Pradesh government.
Following the demise of her father while in service, the petitioner, one of the deceased’s daughters, applied for a Clerk position with the respondent-Corporation. However, her application faced initial rejection by the authorities due to non-submission of specific documents, including a Character Certificate issued by the Executive Magistrate or Tehsildar.
The petitioner, who resides in Punjab, presented a Character Certificate issued by the Senior Superintendent of Police from her State. She contended that obtaining the particular certificate demanded by the authorities in Himachal Pradesh was not feasible in Punjab.
Additionally, the petitioner argued that she was requested to furnish a Bonafide Himachali Certificate, even though the State Government had abolished the relevant rules requiring such a certificate after 20.04.1974. She maintained that this demand for a Bonafide Himachali Certificate was unconstitutional as it contravened Article 16(2) of the Constitution, which guarantees equal treatment of all citizens concerning employment matters.
The respondents, in opposition to the petitioner’s claim, asserted 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 pointed to an Office Memorandum dated 07.03.2019, which specified the necessity of submitting the Bonafide Himachali Certificate for compassionate appointment. The respondents also argued that as the petitioner’s submissions did not conform to the conditions outlined in the compassionate policy, her request for employment could not be approved.
In their adjudication of the matter, the bench underscored the principle of “Lex non cogit ad impossibilia,” which translates to the law not compelling a person to do something impossible for them to accomplish. The court referred to previous judgments of the apex court that upheld this principle, reaffirming that the petitioner should not be obligated to obtain a Character Certificate from specific authorities when it was not feasible for her to do so due to her residency in Punjab.
In its stance on the need for a Bonafide Himachali Certificate, the court upheld the petitioner’s arguments, emphasizing that Article 16(2) of the Constitution safeguards citizens from discrimination based on their place of residence.
The bench stated, “As per Art.16(2) of the Constitution no citizen can be discriminated on the basis of residence. So insisting that the 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. 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.”
Considering these observations, the Court granted the writ petition, thereby nullifying the necessity of a Bonafide Himachali Certificate and instructing the authorities to accept the Character Certificate issued by the Senior Superintendent of Police from Punjab. Furthermore, the court directed the respondents to offer the petitioner a compassionate appointment within four weeks. Additionally, the respondents were mandated to compensate the petitioner with Rs. 10,000/- as costs.