CWP No.8137 of 2010.doc - 1 – HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** CWP No.8137 of 2010 (O&M) Date of Decision: 24.05.2010 **** Rajesh Kumar . . . . Petitioner VS. State of Punjab and another . . . . . Respondents **** 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? **** Present: Mr. HPS Ishar, Advocate for the petitioner Mr. K.S. Sidhu, DAG Punjab ***** SURYA KANT J. (ORAL) (1). The petitioner seeks quashing of the order dated 17.03.2009 (Annexure P4), whereby, his services have been terminated. (2). It is worthwhile to briefly notice the facts giving rise to this writ petition. The petitioner’s father was working as a Steno-typist on regular basis in the office of Chief Conservator of Soil, Government of Punjab. He unfortunately passed away while in service on 15.10.2008. The petitioner applied for his appointment on compassionate grounds on 21.11.2008 under the ex gratia scheme formulated CWP No.8137 of 2010.doc - 2 – by the State of Punjab. The petitioner possesses academic qualification of 10+2 and was fully eligible for appointment to the post of Clerk under Rule 15 of the Punjab Civil Service (General and Common Conditions of Service) Rules, 1994 (in short, ‘the Rules’) as it existed at the time when the petitioner’s father died or when he applied for appointment to the subject post. (3). Rule 15 at that time used to read as follows:- “15. Minimum educational and other qualification for appointment to the post of Clerk: No person shall be appointed by direct recruitment to the post of Clerk under the Punjab Government unless he, (a) is matriculate in second division or has passed Senior Secondary Part-II Examination from a recognized university or institution; and (b) qualifies a test in Punjabi type-writing to be conducted by a Board or by the appointing authority at the speed of thirty words per minute.” (4). The petitioner was offered appointment to the post of Clerk by respondent No.2 vide appointment letter dated 06.02.2009 (Annexure P1) and thereafter vide memo dated 16.02.2009 (Annexure P2) the Deputy Commissioner, Chandigarh was CWP No.8137 of 2010.doc - 3 – requested to verify the character and antecedents of the petitioner. (5). To his dismay and surprise and even before he could join his duties, the respondents slapped the petitioenr with the impugned order dated 17.03.2009 (Annexure P4), whereby, his appointment as Clerk has been cancelled and services terminated on the ground that in view of Rule 15 as amended vide Notification dated 10.02.2009, whereby Bachelor’s Degree has been prescribed as the minimum qualification for the post of Clerk, he has become ineligible for appointment to the said post. In other words, the petitioner’s appointment has been cancelled on the ground that he did not possess the requisite academic qualification as prescribed for the post of Clerk vide amended Rule 15 ibid which came into force w.e.f. 10.02.2009. (6). The solitary question that arises for consideration is as to whether the eligibility of the petitioner is to be determined (i) as on the date when his father died in harness and/or when he applied for appointment under the ex gratia scheme; or (ii) on CWP No.8137 of 2010.doc - 4 – the date when he was to join his duties pursuant to the appointment letter dated 06.02.2009? (7). The aforesaid issue is no longer res integra. A Division Bench of this Court in Amarjit Singh vs. State of Haryana and others, 2007(1)SLR 251, held as follows:- “3. After hearing learned counsel for the parties, we are of the considered view that the relevant date for the 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. CWP No.8137 of 2010.doc - 5 – 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.” 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.” xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx (8). The aforesaid view was reiterated by this Court in (i) Deepak v. State of Punjab & another (CWP No.8155 of 2009) decided on January 28, 2010 as well as in (ii) Sunita Devi vs. State of Punjab CWP No.8137 of 2010.doc - 6 – and others (CWP No.10859 of 2009) decided on 08.02.2010. (9). For the reasons assigned by the Division Bench in Amarjit Singh’s case (supra) and this Court in Deepak and Sunita Devis’ cases (supra), the writ petition is allowed; the impugned order dated 17.03.2009 (Annexure P4) is hereby quashed with a direction to respondent No.2 to give effect to the appointment letter dated 06.02.2009 and permit the petitioner to join his duties as Clerk. (10). Needless to say that the petitioner’s appointment, for all intents and purposes, shall relate back to the date of offer of appointment and he shall be granted all the consequential benefits like seniority etc except arrears of pay though his pay shall be fixed notionally. (11). The needful shall be done within a period of one month from the date of receipt of a certified copy of this order. (12). Ordered accordingly. (13). Dasti . (SURYA KANT) JUDGE 24.05.2010 CWP No.8137 of 2010.doc - 7 – vishal shonkar