IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP(T) No. 8681 of 2008 Date of decision: 08.12.2010 ________________________________________________________________ Jagat Pal. .....Petitioner. Versus H.P. State Electricity Board & ors. .....Respondents. Coram The Hon'ble Mr. Justice V.K. Sharma, J. 1 Whether approved for reporting? Yes. ________________________________________________________________ For the petitioner: Dr. Lalit K. Sharma, Advocate. For the respondents: Mr. Shashi Shirshoo, Advocate. V.K. Sharma, J. (Oral). The facts giving rise to the present petition are somewhat queer and baffling as well. The father of the petitioner, late Shri Sohan Lal, who shall hereinafter be referred as the deceased employee, had initially joined employment of the respondent-board as Peon on 02.05.1968 and was subsequently promoted as Bill Distributor w.e.f. 18.05.1974. It shall be pertinent to observe at this juncture that both these posts are Class-IV posts for which age of retirement is 60 years. 2. Since the date of birth of the deceased employee was 24.05.1945, had he not been promoted to a Class-III post, he would have retired at the age of 60 years on and w.e.f. 24.05.2005. However, strangely enough, the process for promotion of the 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. ...2... deceased employee as Ferro Printer/Gastetner Operator, a Class-III Post for which the retirement age is 58 years, was initiated at the fag end of his service career. Consequently, he was promoted as such vide Office Order dated 06.09.2003, Annexure A-1, when he had already crossed the age of 58 years and on the basis of which he was retired from service on and w.e.f. 30.09.2003 as per Annexure A-2. Unfortunately, the deceased employee died soon thereafter on 10.10.2003. Consequently, representations, Annexures A-3 and A-4, were submitted by the wife of the deceased employee to the Chairman of the respondent-board with a prayer for grant of employment to her son, the petitioner, on compassionate grounds on the premise that had the deceased employee not been promoted to the Class-III post of Ferro Printer- cum-Gastetner Operator, he would not have retired from service on and w.e.f. 30.09.2003 which also on the face of it was beyond attaining the age of 58 years and had instead continued in service up to the age of 60 years, i.e. 20.05.2005: 3. Against the above backdrop, the petition has been filed on the following prayers vide para 7(i), (ii) and (iii): “7(i) That the respondent No. 1 may very kindly be directed to decide the representation of the applicant for compassionate appointment against the post of Clerk/Driver. (ii) That the respondents may very kindly be directed to decide the pension case of late Sh. Sohan Lal and withdraw the Annexure A-1 dt. 6.9.2003 qua Late Sohan Lal and he may be treated as Bill Distributor at the time of his death and furthermore, the declaration to the effect that he died in harness, may also be given order by this Hon'ble Tribunal. (iii) That the Annexure A-2 may very kindly be set aside.” 4. In reply, on behalf of respondents No. 1 to 4, the ...3... following stand has been taken in preliminary submission: “In context, the replying respondent and submit with almost respect that Sh. Sohan Lal, Ferro Printer/Gastetner Operator (D.O.B. 24.5.1945) was initially appointed as Peon on 2.5.68 in the Department/Board. Subsequently, he was promoted as Bill Distributor and he had joined as such on 18.5.74. The Departmental Promotion Committee was convened on 24.12.2002 for promoting the eligible Daftri/Havildar/Bill Distributor (Class-IV) to the next higher grade of Ferro Printer/Gastetner Operator (Class-III post) strictly in order of their seniority. Sh. Sohan Lal Ferro Printer/Gastetner Operator was also approved as per the panel drawn for the purpose. Accordingly, sh. Sohan Lal Ferro Printer/;Gastetner Operator was promoted from the post of Bill Distributor to the post of Gastetner Operator vide order no. 459/HPSEB(SECTT)/2003 dated 6.9.2003 (Annexure R-I) with the distinct stipulations/direction to the Controlling Officer to ensure relieving of these officials within one month from the date of above order. In case, any official was not willing to join/ report for his duty at the places indicated in the order dated 6.9.2003, within fifteen days, a report to this effect was required to be sent to Competent Authority for cancellations of promotion orders of the individual official concerned. Therefore, it was obligatory on the part of the Controlling Officer to ascertain the willingness of such promotee(s) either to accept the promotion or to forfeit it. But Sh. Sohan Lal, Ferro Printer/Gastetner Operator did not show any un-willingness for his promotion from the post of Bill Distributor. The Executive Engineer Elect. Division, HPSEB, Ghumarwin vide his letter No. 8432 dated 1.1.2004, had informed that the official was not relieved of his duty forceably and had not objected to his promotion. Thus, he was relieved of his duty by the Executive Engineer Elect. Division, HPSEB, on 19.9.2003 (A.N.) to join his new post of Ferro Printer/Gastetnor Operator (Class-III post). He reported to Chief Engineer (Arbitration) HPSEB, Kaumpti Shimla on 20.9.2003 (FN) and joined his new post on promotion as Ferro Printer/Gastetner Operator. The prescribed superannuation retirement age for the post of Ferro Printer/Gastetner Operator being Class-III post is 58 years while the post of Bill Distributor being Class-IV post has 60 years age for superannuation retirement. Since the date of birth of late Sh. Sohan Lal is 24.5.45, he was to retire on 31.5.2005, had he not joined the Class-III post of Ferro Printer/Gastetner Operator on 20.9.2003. But as he joined the said post on 20.9.2003, he had instantly attained the superannuation age. Accordingly, he was retired on 30.9.2003 by the Chief Engineer (Arbitration) after having served as Gastetner Operator in Class-III post only for 11 days. Unfortunately, the retiree died on 10th Oct. 2004. Subsequently, the Chief Engineer (Arbitration) HPSEB Shimla then prepared the pension case of the late retiree and submi9tted to Chief Accounts Officer F&A Wing, HPSEB, Shimla-4 for finalisation. The Chief Accounts ...4... Officer had requested to convey the approval of the competent authority in favour of the deceased to continue in service in Class-III post beyond the age of 58 years to regularise the 4 months period upto 30.9.2003, which has already been granted by the Board vide its order No. 188 dated 13.8.2004 (Annexure R-2) to avoid financial hardships to bereaved family. The superannuation as well as family pension case with all the pensionary benefits due to the deceased retiree has since been decided and settled by the respondent Board. As regard the relief of providing compassionate appointment to the applicant under Employment Assistance Scheme, it is submitted that as per employment assistance policy framed and notified by the Govt. of H.P. vide notification No. O.M. No. Per(AP-II)F(4)-4/89 dated 18th Jan. 1990 further adopted by the Board Memo No. HPSEB(SECTT)/14-2/90-118413-613 dated 19.6.90, the employment on compassionate grounds to the dependents is provided only to those Govt./Board servants who die in Govt./Board services where the family is left in indigent circumstances. Nevertheless, it is not a matter of right. But in the instance case,t he claim of the applicant seeking employment on compassionate grounds under the ibid scheme is untenable since the deceased retiree had attained the age of superannuation on 30.09.2003 consequent upon his joining on 20.09.2003 as Ferro Printer/Gastetner Operator, which is a Class-III post. Unfortunately, the retiree expired on 10th Oct., 2003. The deceased retiree is entitled only to the benefits of superannuation/family pension alongwith other pensionary benefits which has very earnestly been finalised and granted by the respondent No. I & II to provide immediate relief to the bereaved family.” 5. In reply to MA No. 2763 of 2007 in O.A. No. 2381 of 2004, filed on behalf of the petitioner for interim directions, the respondents have stated as under: “Thereafter the family pension case of the applicant was authorized by the office of Chief Accounts Officer of the replying respondent vide his office letter no. 8107-11 dated 26.8.2004 (Copy annexed herewith as Annexure R-1) against PPO No. HPSEB-6969 and authority of Death Gratuity for Rs. 1,49,540/- was also issued issued vide letter No. 8809-12 dated 9.9.2004 (Copy annexed herewith as Annexure R-II) along with the family pension. Later on while auditing the record of the pension of the applicant, it was found that neither the payment of pension has been released by the bank nor the applicant has bothered to inquire about eh non release of the family pension. Later on the Bank authority requested to issue duplicate PPO and confirmed that the original one has been misplaced in the transit. Now on the request of the Bank authority, the duplicate PPO has been issued. In view of the above position, it is clear that the ...5... Deptt./Respondent Board has timely issued the PPO and other family pension case of the applicant to the Bank but the same were misplaced by the Bank authorities and there is no default on the part of the replying respondents thus the Deptt./respondent Board is not liable to pay any interest etc. as claimed by the applicant.” 6. Thus it is manifest that all the reliefs claimed by the petitioner except for grant of compassionate employment have already been granted by the respondents, though belatedly, for which the parties are laying blame on each other. 7. In view of the above, the petition is allowed with a direction to respondent No. 1 to consider the case of the petitioner for grant of employment on compassionate grounds in accordance with law and justice and taking into consideration the peculiar facts and circumstances of the case, as noticed hereinabove in this judgment as also the recommendation made by the Chief Engineer (Arbitration) HPSEB, Block No. 3, SDA Complex Kusampati, Shimla vide letter dated 4.12.2003, Annexure A-5, operative part whereof is extracted below, within three months from today after affording an opportunity of being heard to the petitioner, if so desired: “It may not be out of place to mention that late Sh. Sohan Lal, Ferro Printer was promoted to Class-III cadre when he had crossed the prescribed superannuation age of 58 years being date of birth 20.5.45. Unfortunately, he expired after 20 days of his joining in the cadre leaving his family in indigent circumstances and he not been promoted, his legal heir would have been entitled for following benefits in addition to family pension: 1. DCRG. 2. Benevolent Fund. 3. Exgratia Grant. 4. Employment Assistance. Therefore, withdrawal of his promotion orders dated 6.9.03 on humanitarian grounds may be condolence to the departed soul and condolation to his aggrieved family in lieu of his long 33 years service rendered by him in the Board, which may also please be considered.” ...6... 8. The petition stands disposed of, so also the pending CMP(s), if any. (V.K. Sharma) Judge 8th December, 2010 (virender)