RSA No.674 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.674 of 2008 Date of Decision: 14.1.2009 State of Haryana & Ors. ..Appellants Vs. Shiv Kumar ..Respondent Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.Madan Gupta, Sr.DAG, Haryana, for the appellants. Mr.Navin Daryal, Advocate, for the respondents. --- Vinod K.Sharma,J. (Oral) This regular second appeal is directed against the judgments and decrees dated 20.12.2006 and 20.11.2007 passed by the learned courts below vide which suit filed by the plaintiff/respondent for declaration that the plaintiff was entitled to get the ex-gratia job with full benefits and allowances of service under the policy of the State Government dated the 31.8.1995. The plaintiff/respondent filed a suit claiming that Attar Singh, RSA No.674 of 2008 2 father of the plaintiff/respondent was serving as a peon in the office of Divisional Forest Officer (Territorial), Karnal who expired while in service on 11.7.2000. As per policy then in force, mother of the plaintiff applied for appointment of the plaintiff/respondent as he fulfilled all the conditions. The application was accompanied by the documents showing the date of birth as well as qualification. Instead of accepting the plea of appointment the Principal Chief Conservator of Forest, Haryana, Panchkula offered a sum of Rs.2.50 lacs in lieu of ex-gratia job as the name of the plaintiff was at Sr.No.20 of the seniority list of ex- gratia job seekers. The plaintiff challenged the order passed by defendant No.2 on the plea that the policy of Haryana Government of 2006 was not applicable to his case as he was covered by the policy in force at the time of application for appointment. The suit was contested. While the fact that father of the plaintiff being permanent employee had died during service was not disputed, but a plea was taken that the plaintiff does not qualify for the post. It was, however, the stand of the appellant/State that relaxation was granted by the competent authority under Rule 17, while recommending his case for appointment. Learned courts on appreciation of evidence brought on record have recorded a concurrent finding of fact that the case of the plaintiff is covered under the policy which was in force at the time of death of his father and decreed the suit. RSA No.674 of 2008 3 Directions were issued to the defendant-appellants to consider the case of the plaintiff/respondent under the old policy of 31.8.1995, and offer ex-gratia job as and when the vacancy is available as per the seniority list. Appeal filed by the Appellant/State was also dismissed and finding recorded by the learned trial court stands affirmed. Mr.Madan Gupta, learned Senior Deputy Advocate General, Haryana has challenged the judgments and decree passed by the learned courts below on the plea that the rule on which the reliance has been placed for giving appointment to the plaintiff/respondent stood repealed in 2003, and thereafter rules have been framed in the year 2006. According to the Rules now in force the persons are entitled to ex-gratia payment. Reference was made to Rule 6 of the Haryana Compassionate Assistance to the Dependents of Deceased Government Employees Rules, 2006 (for short Rules, 2006) which reads as under:- “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 RSA No.674 of 2008 4 Employees Rules, 2006.” to contend that the judgments and decree passed by the learned courts below are liable to be reversed and suit filed by the plaintiff/ respondent deserves to be dismissed. Learned counsel appearing on behalf of the respondent/plaintiff, however, contends that Rules, 2006 relied upon by the learned Senior Deputy Advocate General, Haryana would not apply to the plaintiff as the Rules could not have retrospective operation, in the absence of option as stipulated in Rule 6 of the Rules. The contention, therefore, is that the reliance on the Rules, 2006 is misconceived. In support of this contention reliance is placed on the judgment of Hon'ble Supreme Court in the case of Abhishek Kumar Vs. State of Haryana and others 2007 (2) SCT 457, wherein the Hon'ble Supreme Court has been pleased to lay down that the Rules in existence at the time of accrual of right have to be applied, and not the subsequent rules. There is force in the contention raised by the learned counsel for the plaintiff/respondent. Rule 6 of the Rules, 2006, on which reliance has been placed only gives an option to the person whose cases are pending to opt. It is only in case the person, so opts that Rules, 2006 can be applied retrospectively, otherwise these would have prospective application. Learned courts below were, therefore, justified in decreeing the suit filed by the plaintiff claiming compassionate appointment as per the rules in force when the application was moved. RSA No.674 of 2008 5 The judgments and decree passed by the learned courts below thus deserve to be upheld. Appeal raises no substantial question of law for consideration by this court. No merit. Dismissed. 14.1.2009 (Vinod K.Sharma) rp Judge