- 1 - IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R Daru Kanwar vs. State of Raj. & Ors. S.B.CIVIL WRIT PETITION NO. 3892/2004 DATE OF ORDER : July 10th, 2008 P R E S E N T HON'BLE JUSTICE GOPAL KRISHAN VYAS Mr.I.R.Choudhary, for the petitioner. Mr.Arjun Singh Rathore, Dy. Government Counsel. In this writ petition petitioner has prayed for directions to the respondents to grant all service benefits of her husband late Shri Abhay Singh including family pension, GPF, Gratuity etc. with 24% interest. Further, it is prayed that respondents may be directed to provide her appointment on compassionate ground on the post of Peon. According to facts of the case, petitioner's husband late Shri Abhay Singh was appointed on the post of chowkidar on 7/12/1985 and he worked upto 31/3/1987 when his services were illegally retrenched. Thereafter, an industrial dispute was raised by Shri Abhay singh and after failure report matter was referred to appropriate Government for reference. The State Government made reference to the Judge, Labour Court, Bikaner for adjudicating the industrial dispute. The Judge, Labour Court, Bikaner vide its award dated 13/1/1994 set aside the termination order dated 1.4.1987 and passed an order of reinstatement of late Shri Abhay Singh with continuity in service with back wages. Meaning thereby, petitioner's husband was - 2 - granted continuity in service right from his initial appointment i.e. 7/12/1985. Respondent Department in compliance of the award passed by Labour Court reinstated late Shri Abhay Singh in service on 19/9/1997 and unfortunately he died on 9/12/2003. Meaning thereby, petitioner's husband worked in the respondent department from 7/12/1985 to 9/12/2003. Thereafter, vide Annex.6 dated 23/4/2004 an order was issued by the respondent department, whereby, late Shri Abhay Singh was ordered to be retired from service w.e.f. 9/12/2003, the date on which he died. In the said order, it was also observed that no departmental proceedings are pending against him, therefore, obviously all service benefits were to be allowed to the petitioner being widow of late Shri Abhay Singh but since 2003 petitioner is repeatedly knocking the doors of respondent department to grant all benefits so also appointment on compassionate ground but no so far she has not been given appointment on compassionate ground. Learned counsel for the petitioner has invited my attention towards certain judgments of this Court which are as follows:- 1. 2004 (3) CDR page 2503 (Kiran Devi vs. State of Rajasthan & Ors) 2. 2004 (3) CDR page 2367 (Gulabi Bai vs. Secretary, Govt. of Rajasthan, Department of Irrigation & Ors.) 3. 1992 (1) WLC page 89 (Naurti Devi vs. State of Raj. & Ors.) 4. S.B.Civil Writ Petition NO. 1814/1998 decided on 25/10/2007 (Sugan Kanwar vs. State of Raj.) - 3 - 5. S.B.Civil Writ Petition No.1484/2006 decided on 8/3/2007 (Mahendra Kaur vs. State of Raj. & Ors.) 6. S.B.Civil Writ Petition NO.5971/2006 decided on 30/5/2008 (Smt. Vidhya Devi vs. State of Raj. & Ors.) 7. 1991 WLR page 340 (Sajjan Singh vs. State of Raj. & Ors.) While citing the above judgments it is submitted by learned counsel for the petitioner that due to inaction on the part of respondents, the husband of petitioner was not given permanent status after completion of 10 years of service, though he had completed 15 years of service. Further, it is submitted that option was to be given to the petitioner's husband in accordance with Rule 22-A but unfortunately no option was given to late Shri Abhay Singh and after his death the petitioner has been denied pensionary benefits. In this writ petition notices were issued to the respondents and in reply it is stated that petitioner's case is under consideration and as and when regularisation of the period w.e.f.1.4.1987 to 31/1/1995 and February, 1995 to February, 1996 will be made, the pensionary benefits will be released. Further, it is observed in reply to sub para (d) of the grounds that case of petitioner with regard to compassionate appointment is also under consideration. It is also stated that so far as retiral benefits are concerned, the same will be finalized after decision of labour case no. 21/96 in which dispute of payment of salary is in question, meaning thereby, respondents cannot dispute the claim of petitioner because they did not challenge the award passed by Judge, labour Court in which - 4 - termination of late Shri Abhay Singh was set aside with continuity in service. During the course of arguments it is argued by learned counsel for the respondents that petitioner's husband had not completed ten years of service, therefore, she is not entitled for pensionary benefits and since amount of State Insurance was not deducted from the salary of late Shri Abhay Singh, therefore, petitioner is not entitled for any claim under the head of State Insurance. It is also submitted that payment of GPF/CPF has been made to petitioner on 19/10/2004 and as & when the aforesaid period will be regularised by the department she will be given all pensionary benefits. I have considered the rival submissions and perused the entire record of the case. In my opinion, denial of pensionary benefits to the petitioner for the services rendered by her husband late Shri Abhay Singh is totally unconstitutional and contrary to law. The award passed in favour of late Abhay Singh was never challenged by the department and it has already attained finality. In the award of Judge, Labour Court while quashing termination of services of late Abhya Singh the continuity in service was given. Dispute with regard to payment of salary is pending but at the same time as per the award petitioner's husband was to be treated in service right from his initial appointment dated 7/12/1985, therefore, denial of retiral benefits is totally illegal. It is admitted position of the case that petitioner's husband - 5 - was allowed continuity in service by the labour court vide its award dated 13/1/1994 and in pursuance of award late Shri Abhay Singh was reinstated in service and he continued to work till his death i.e. upto 9/12/2003, thus, the entire service period is required to be taken into consideration for the purpose of reckoning qualifying service and thereby petitioner being wife of late Abhay Singh is entitled for pensionary benefits so also she is entitled for appointment on compassionate ground. As per work charged Rules, since petitioner's husband has completed more than 10 years service, therefore, he was entitled for pensionary benefits under Rule 22-A. In reply also it is no where stated by the respondents that petitioner's husband was not entitled for pensionary benefits, more over it is stated that matter with regard to regularisation of the period commencing from 1.4.1987 to 31/1/1995 and from February, 1995 to Februrary, 1996 is under consideration and after regularisation of said period petitioner will be granted pensionary benefits. It is very strange that there is no question of any regularisation of services period because in the award passed by labour court it was specifically ordered that late Shri Abhay Singh is entitled to continuity of service since his initial appointment w.e.f. 7/12/1985, thus, in this view of the matter petitioner's husband has completed more than 15 years of service and entitled to all benefits under the RSR, even if he was allowed to work as work charge employee. The denial of retiral benefits of late Shri Abhay Singh, husband of petitioner, who was admittedly employee of respondent department is illegal and unconstitutional, therefore, violative of Article 14 and 21 of the - 6 - Constitution of India. In view of above discussion, this writ petition is allowed. Respondents are directed to grant all retiral benefits of late Shri Abhay Singh including family pension to the petitioner so also respondents shall consider the case of petitioner for providing appointment on compassionate ground, which is said to be pending since 2004 within a period of three months from the date of receipt of certified copy of this order. In case, petitioner's claim is not finalised within the stipulated period, she shall be entitled to interest @ 9% p.a. No order as to costs. (GOPAL KRISHAN VYAS), J. pankaj baweja