Civil Writ Petition No. 6939 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No. 6939 of 2009 Date of decision: 20.09.2010 Ram Rati ...Petitioner Versus State of Haryana and others ...Respondents CORAM: HON'BLE MR. JUSTICE RANJIT SINGH Present: Mr. K.S. Dhanora, Advocate for the petitioner. Mr. Harish Rathee, Sr. DAG, Haryana for the State. ***** RANJIT SINGH J. The husband of the petitioner, who was appointed as Driver on 07.11.1990 on regular basis in Haryana Roadways, unfortunately died on 28.09.1991. The petitioner submitted various applications on 19.01.1992, 26.04.1993 and 12.05.1993 seeking employment under Ex-gratia scheme on compassionate ground. She, however, was informed that there was no vacant post in Jind Depot and, accordingly, required her to send the consent for appointment in other department. The petitioner forwarded such consent on 12.07.1993, pleading that she may be appointed in the Education Department. Still, no action was taken. Series of representations followed but to no effect till. On 04.04.2000, respondent No. 2 (Transport Commissioner) issued direction for the General Manager, Haryana Roadways, Kurukshetra to appoint the petitioner on the post of Water Carrier. General Civil Writ Petition No. 6939 of 2009 2 Manager (respondent No. 2) in turn replied that there was no vacant post in his office. The petitioner, thus, commenced the process of representing and sent another representation on 10.05.2000 seeking appointment for her son. This was followed by reminders on 20.05.2000 and 11.09.2001. On 13.07.2002, respondent No. 2 then wrote to General Manager for giving employment to the son of the petitioner. No appointment, however, was offered. The petitioner continued to represent by sending reminders but no action followed. Persistence of the petitioner did move the respondents. When on 22.12.2006, the petitioner approached General Manager, Haryana Roadways, Chandigarh to consider the case of her son for employment, she was informed that though no appointment could be given under the Ex-gratia scheme but financial assistance of Rs. 2.50 lakhs can be granted to her in lieu of appointment as per the scheme then prevalent. The petitioner responded by saying that her case is to be governed by earlier instructions and not under those which had subsequently been introduced. The petitioner was in another shock when General Manager, Haryana Roadways, Chandigarh informed her that as per the instructions issued on 31.3.2003, ex-gratia benefit can be granted to only those cases where the deceased employee had completed atleast 3 years service on regular basis. Respondent No. 2 also informed the petitioner that there is no provision for employment in view of the instructions dated 01.8.2006. The petitioner was still asked to contact General Manager, Haryana Roadways, Chandigarh. At that stage, the petitioner instead thought of approaching the Court and has filed the present writ petition praying Civil Writ Petition No. 6939 of 2009 3 for grant of appointment on the ground that her case is to be considered under instructions prevalent at the time of death of her husband and not those which have been subsequently introduced. Notice of motion in this case was issued on 07.05.2009. The case was then sent to Registrar (Judicial-II) for completion of proceedings. State took number of opportunities to file the written statement but no written statement has been filed. The case was, accordingly, placed before the Bench on 20.01.2010. The Court noticed that despite last opportunity, reply was not filed on behalf of State. The State counsel prayed for further opportunity to file reply. The prayer was granted and four weeks time was allowed as final opportunity to file reply subject to payment of Rs. 2000/- as costs. Again the case was adjourned to 18.03.2010, on written request. Reply still was not filed. The case had to be adjourned on 19.05.2010 to await appearance. On 04.08.2010, it was noticed by the Court that despite repeated opportunities, no reply has been filed yet the request for adjournment, as made was allowed by noticing that there was no justification but still in the interest of justice, one last opportunity be granted subject to payment of Rs. 2000/- as costs. This adjournment was with a rider that if reply was not filed, the defence of the respondent-State shall stand struck off and the right to defend the writ petition would exhaust and the necessary consequences would follow. Counsel for the respondent states that the reply is ready with him. May be so but directions were to file the reply which has not been complied. That being the position, the order passed on 04.08.2010 will have to be given effect to. As a result, the defence of Civil Writ Petition No. 6939 of 2009 4 the respondent is struck off. Their right to defend the writ petition would stand exhausted. The necessary consequence is that the averment made in the writ petition is to be taken as correct and true for the purpose of passing this order. It is to be taken that there is no defence projected on behalf of the State in response to the claim made in the writ petition. The prayer made in the writ petition is for issuance of writ of certiorari for quashing impugned letter dated 25.07.2008 (Annexure P-12) and letter dated 09.09.2008 (Annexure P-13). Further prayer is to issue writ in the nature of mandamus directing the respondents to appoint son of the petitioner on the post of clerk on compassionate ground under Ex-gratia scheme in terms of instructions dated 08.05.1995. The issue whether the instructions prevalent at the time of death would be relevant for the purpose on compassionate appointment or the one which are subsequently issued is under consideration before the Full Bench of this Court. The claim of the petitioner for quashing communication dated 25.07.2008 and 09.09.2008 is made out and is allowed. Both the communications are set aside. Directions were earlier issued to the respondents to consider the claim of the petitioner or her son for appointment on compassionate basis on more than one occasion. Directions were issued for considering the case of either the petitioner or her son for appointment but some how or the other the appointment was not granted. Concededly, the case of the petitioner has not been finalised when the Rules of year 2006 came into force. It is to be considered if the case of appointment or assistance is to be governed under Rules framed in 2006 specially in the light of para 6 Civil Writ Petition No. 6939 of 2009 5 thereof. The view taken in some of the communication that the late husband of the petitioner was required to have 3 years service is also to be considered in the light of some decision rendered by this Court. These shall have to be kept in view while considering and deciding the case of the petitioner. Let the exercise of considering the claim of the petitioner in the light of observation made above be done within a period of 2 months from the date of receipt of copy of this order. The writ petition is, accordingly, allowed. September 20, 2010 ( RANJIT SINGH ) rts JUDGE