CWP No.3510 of 1991 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CWP No.3510 of 1991 (O&M) Date of Decision: 28 .04.2009 Smt. Basanti Devi ...Petitioner V E R S U S State of Haryana and others ...Respondents CORAM: HON'BLE MR. JUSTICE AJAY TEWARI Present: Mr. Sandeep Bansal, Advocate for the petitioner. Mr. Harish Rathee, Sr. DAG, Haryana. AJAY TEWARI J. (ORAL) The husband of the petitioner joined service on work charge basis on 24.2.1975. He unfortunately died on 20.10.1986. This petition has been filed for claiming the benefits of regular employees as well as for seeking compassionate appointment. This petition has been registered on various grounds which is primarily argued that husband of the petitioner was not a regular employee at the time of his death and thus the petitioner could not be granted compassionate appointment since only dependents of regular employees were entitled to be considered for the same. The second argument is that the husband of the petitioner had been died more than 24 years ago. No case for grant of compassionate appointment was made out. CWP No.3510 of 1991 (O&M) -2- It is not disputed by the respondents that in fact service of the persons junior to the petitioner were regularized prior to the death of the petitioner and his claim was ignored only because of oversight. In this connection, a Division of this Court in the case of Smt. Chameli v. State of Haryana and others reported as RSJ 1999 (2) 691 held as follows:- “A careful reading of the averments made in the petition shows that Shri Mange Ram was eligible to be regularized in service as per the above extracted instructions. The respondents have not contested his eligibility to be regularised in service on the ground that he did not complete 4 years work charge service as on 31.12.1981 or on the ground that his antecedents were found to be wanting in any manner but on the ground that due to his demise on 18.7.1983, Shri Mange Ram could not be subjected to medical examination as envisaged by the instructions dated 26.10.1983. In our opinion, this cannot be considered to be a rational justification for denying the benefit of regularisation of service to late Shri Mange Ram because it has not been proved that as on 31.12.1981, he suffered from any disability. In view of the above, we allow the writ petition and direct the respondents to take the following steps: (i)The services of Shri Mange Ram should be regularised in accordance with the instructions issued by the Engineer-in-Chief vide memo CWP No.3510 of 1991 (O&M) -3- dated 26.10.1983. This shall be done within a period of 2 months from the date of handing over of an attested copy of this order to the learned Deputy Advocate General by the Bench Secretary. (ii)Within next 2 months, the respondents shall determine the amount of gratuity, ex-gratia and family pension payable to the petitioner. (iii)The amount due to the petitioner shall be paid to her within next 4 weeks. (iv)In case there is a lapse in the payment of amount of a family pension, gratuity, ex-gratia etc., then the petitioner shall get interest at the rate of 18% per annum. In view of this authoritative pronouncement of law, it has to be considered that husband of the petitioner was a regular employee on the date of his death. In the circumstances, the petitioner is entitled to get all benefits of a family pension etc. if the same has not been paid to the petitioner till date. As regards compassionate appointment, learned counsel for the respondents has urged that in view of the decision of Hon'ble the Supreme Court in the case of Secretary, State of Karnataka and others vs Uma Devi and others reported as 2006(2) SCT 462 and Official Liquidator vs Dayanand and others reported as (2008) 10 SCC 1 the claim of the petitioner for compassionate appointment cannot be granted. CWP No.3510 of 1991 (O&M) -4- In Uma Devi's case (supra), the Hon'ble Supreme Court held as follows :- “44. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V.Narayanappa (supra), R.N.Nanjundappa (supra), and B.N.Nagarajan (supra), and referred to in paragraph 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers, are being now employed. The process must be set in motion within six months from this date. We also clarify that regularization, if any already made, but not CWP No.3510 of 1991 (O&M) -5- subjudice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme.” In my opinion, the stand of the respondents is unexceptionable. However, it has to be seen that the case of the petitioner was originally rejected on the erroneous basis that her husband was not a regular employee. Thus, the respondents would be enjoined to consider the case of the petitioner afresh after keeping in mind the fact that the husband of the petitioner was a regular employee. In this situation, the Haryana Compassionate Assistance to the Dependents of the Deceased Government Employees Rules, 2006 would become applicable, Clauses 6 and 8 of which are reproduced herein below:- “6. All pending cases of ex-gratia assistance shall be covered under the new rules. The calculation of the period and payment shall be made to such cases from the date of notification of these rules. However, the families will have the option to opt for the lump sum ex-gratia grant provided in the Rules, 2003 or 2005, as the case may be, in lieu of the monthly financial assistance provided under the Haryana Compassionate Assistance to the Dependents of the Deceased Government Employees Rules, 2006. 8. The Haryana Compassionate Assistance to the Dependents of Deceased Government Employees Rules, CWP No.3510 of 1991 (O&M) -6- 2005, which are in force immediately before the commencement of these rules are hereby repealed: Provided that families will have the option to opt for the lump sum ex-gratia grant provided in the rules 2003 or 2005, as the case may be, in lieu of the monthly financial assistance provided under these rules: Provided further that in all pending cases where the family exercises the option to receive the financial assistance under these rules, the calculation of the period and payment shall be made from the date of notification of these rules.” It has to be thus held that the case of the petitioner would deem to be a pending case and therefore under Clauses 6 & 8 (supra) the respondents are directed to consider the case of the petitioner for grant of the benefits under the said rules after taking the option of the petitioner. Needful be done within a period of three months from today. Accordingly, this writ petition is disposed of. ( AJAY TEWARI ) April , 2009 JUDGE ashish