CWP No. 10859 of 2009. ::-1-:: IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH. [i] C.W.P. 10859 of 2009. [O&M] Date of Decision: 8th February, 2010. Sunita Devi Petitioner through Mr. A.S.Manaise, Advocate Versus State of Punjab & Ors. Respondents through Mr. B.S.Chahal, DAG, Punjab. [ii] C.W.P. 16633 of 2009. [O&M] Date of Decision: 8th February, 2010. Devinder Pal Singh Petitioner through Mr. A.S.Manaise, Advocate Versus State of Punjab & Anr. Respondents through Mr. B.S.Chahal, DAG, Punjab. CORAM: HON'BLE MR. JUSTICE SURYA KANT. 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? SURYA KANT, J. [ORAL) This order shall dispose of CWPs No.10859 & 16633 of 2009 as common questions of law and facts are involved in these cases. For brevity, the facts are being extracted from CWP No.10859 of 2009. [2]. The petitioner seeks a Mandamus to direct the respondents to appoint her as a Clerk or on any other Class- III post under the ex-gratia scheme. [3]. The petitioner unfortunately lost her husband [Sudhir Kumar] who was appointed as a Constable in the CWP No. 10859 of 2009. ::-2-:: Punjab Police on 5.8.1989 and was further promoted as Head Constable on 15.4.2006. However, he met with an accident while on duty and died on 28.3.2008, leaving behind the petitioner and two minor children aged 12 and 11 years, respectively. [4]. The admitted facts are that the petitioner possesses 10+2 academic qualification and has also completed Software Diploma of one year from Software Institute of Research, Infosys, Gurdaspur in January, 2008. On the basis of the afore-stated qualification, the petitioner applied for appointment as a Clerk under the ex-gratia scheme as after the death of her husband, no one was there in the family upon whom the petitioner or minor children could depend. The appointment case of the petitioner was favourably recommended by the Deputy Inspector General of Police, Amritsar, to the Director General of Police, Punjab vide Memo dated 17.12.2008 [Annexure P-9]. Pursuant thereto, the petitioner was called for interview vide letter dated 7.1.2009 [Annexure P-10]. However, no appointment letter was issued to the petitioner thereafter. [5]. Later on, the petitioner came to know that her request for appointment as a Clerk had been turned down on the ground that qualification for appointment to the post of Clerk stood changed vide notification dated 10.2.2009 [Annexure R-1] whereby the Punjab Civil Services [General CWP No. 10859 of 2009. ::-3-:: and Common Conditions of Service] Rules, 1994 have been amended. [6]. There is indeed no quarrel that before the amendment dated 10.2.2009, Rule 15 of the 1994 Rules used to read as follows:- “15. Minimum educational and other qualifications – (1) No person shall be appointed by direct recruitment to the post of Clerk under the Punjab Government unless he is Matriculate in Second Division or has passed Senior Secondary Part-II Examination from a recognized university or institution. (2) The person so appointed as Clerk in terms of sub-rule (1) shall have to qualify a test in Punjabi typewriting to be conducted by the Board or by the appointing authority at the speed of thirty words per minute within a period of one year from the date of his appointment. (3) In case, the person fails to qualify the said test within the period specified in sub-rule (2) shall be allowed annual increment only with effect from the date he qualifies such test, but he shall not be paid any arrears for the period, for which he could not qualify the said test: Provided that where appointment of Group ‘C’ non- technical post is offered to a War Hero, who has been discharged from defence services or paramilitary forces on account of disability suffered by him or his widow or dependent member of his family, under the instructions issued in his behalf by the Government, the educational qualifications to be possessed by such person shall be Matriculate from a recognized university or institution. Such person will, however, be not required to qualify the test in Punjabi typewriting as specified in sub-rule (2).” [7]. After the amendment dated 10.2.2009, Rule 15 reads as follows:- CWP No. 10859 of 2009. ::-4-:: “15. Minimum educational and other qualifications – (i) No person shall be appointed by direct recruitment to the post of Clerk under the Punjab Government unless he possesses the Bachelor’s Degree from a recognized University or institution; and (ii) Possesses at least one hundred and twenty hours course with hands on experience in the use of Personal Computer or Information Technology in Office Productivity applications or Desktop Publishing applications from a Government recognized institution or a reputed institution, which is ISO 9001, certified. OR Possesses a Computer Information Technology course equivalent to ‘O’ level certificate of Department of Electronics Accreditation of Computer Courses (DOEACC) of Government of India.” [8]. There is no dispute that the petitioner is fully eligible in terms of the un-amended Rule 15 as she fulfilled the requisite qualifications prescribed therein. However, the petitioner does not possess the amended qualification introduced on 10.2.2009. The question that arises for consideration is as to what should be the relevant cut-off date for determining the eligibility of the petitioner for appointment on compassionate ground? Somewhat similar question arose for consideration before a Division Bench of this Court in Amarjit Singh vs. State of Haryana and others, 2007(1) SLR 251 wherein it was ruled that the relevant date for the purposes of deciding the eligibility would be the date of death of the deceased employee. The Bench observed as follows:- “3. After hearing learned counsel for the parties, we are of the considered view that the relevant date for the CWP No. 10859 of 2009. ::-5-:: purposes of deciding the eligibility would be the date of death of the deceased-employee, which has resulted into financial insurgency to his family. It is well settled that in such like cases, rules prevalent on that date are required to be applied and the case of the petitioner should have been considered in the light of those rules. It is admitted position that under Section 3(e), the expression dependent was defined. The relevant rule was amended on 17.12.2004(Annexure P-4) and the age of 25 years provided in Rule 3(e) was raised to 30 years. After the amendment, Rule 3(e) would read as under:- “3(e) “dependent” means-- (i) spouse of the deceased Government employee or missing Government employee; (ii) son (including adopted son)till he attains the age of 30 years subject to the proof of adoption as envisaged in the Hindu Adoption and Maintenance Act,1956.(78 of 1956) (iii) unmarried daughter(including adopted daughter) till she attains the age of 30 years subject to the proof of adoptions as envisaged in the Hindu Adoption and Maintenance Act,1956 (78 of 1956); (iv) the person who was wholly dependent at the time of his/her death. 4. It is thus evident that the petitioner on the date of death of his father was less then 30 years and was eligible to be considered for appointment. The issue has come up for consideration in C.W.P.No.749 of 2005 decided on 5.7.2005 and the writ petition was allowed. Therefore, we find that the impugned order dated 29.3.2006(Annexure P-5) is liable to be quashed as the case of the petitioner could not have been rejected on the ground that he had crossed the age of 30 years.” [9]. This Court also dealt with a similar case where the services of a Clerk appointed after the notification dated 10.2.2009 on the basis of the qualification that existed prior to CWP No. 10859 of 2009. ::-6-:: that date, were sought to be terminated by relying upon the amended qualification. While setting aside the said order, this Court in Deepak v State of Punjab & Ors., CWP No. 8155 of 2009 decided on 28.1.2010 held as follows:- “Otherwise also, neither the date of eligibility can be fluctuating nor can be left at the whims and fancies of the authorities. In such like cases where a family has lost its sole bread-earner, the endeavour of the State should be to minimize the hardship and provide the alternative employment to the eligible family member at the earliest. The petitioner lost his father in July, 2008. His mother applied for employment of her son – the petitioner, within a period of less than one month. The delay, if any, completion of the ministerial exercise is attributable to the respondents and not to the petitioner. The Rules were amended on 10th February, 2009 i.e. much after the death of the petitioner’s father. Can the respondents say that had the petitioner been appointed on 9th February, 2009, he would have been ineligible? The answer has to be in the negative. If that is so, the petitioner cannot be held to be ineligible as the amended qualification has been introduced prospectively much after the death of the petitioner’s father”. [10]. In the light of what has been observed above, I am of the considered view that eligibility of the petitioner for the purposes of appointment on compassionate ground is to be seen on the date when the sole bread winner of the family was lost, i.e., 28.3.2008 in the present case. [11]. As noticed earlier, the petitioner applied for CWP No. 10859 of 2009. ::-7-:: appointment as a Clerk on 3.11.2008 and her case had also been favourably recommended on 17.12.2008. The delay in appointment, if any, is attributable to the respondents and not the petitioner. Suffice it to observe that had the petitioner been appointed before 10.2.2009, the respondents would not have been able to deny her appointment as a Clerk. The uncertainty created by the respondents can not be allowed to work to the disadvantage of the petitioner[s]. [12]. For the reasons afore-stated, these writ petitions are allowed and the respondents are directed to appoint the petitioners on the post of Clerks forthwith. [13]. Dasti. February 08, 2010. ( SURYA KANT ) dinesh JUDGE