C.W.P.No.9776 of 2007 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH C.W.P.No.9776 of 2007 Date of Decision : 04.03.2008 Anand .....Petitioner versus Uttar Haryana Bijli Vitran Nigam and another .....Respondents CORAM : HON'BLE MR.JUSTICE HEMANT GUPTA HON'BLE MR.JUSTICE MOHINDER PAL Present : Shri J.S.Mannipur, Advocate for the petitioner. Shri Narender Hooda, Advocate for the respondents. -.- 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? JUDGMENT HEMANT GUPTA, J. The father of the petitioner was working as Work Mate in the erstwhile Haryana State Electricity Board since 1.4.1981. He died on 1.6.2002 while working with respondent No.2, Uttar Haryana Bijli Vitran Nigam Limited (hereinafter referred to as the Nigam), the successor of the Haryana State Electricity Board. The petitioner applied for the appointment on compassionate ground after the death of his father. Earlier, the petitioner filed a Civil Writ Petition No.10619 of 2003 before this Court, claiming appointment on compassionate ground. The said writ petition was disposed of by this Court on 15.7.2003 with a direction to the respondents to decide the legal notice of the petitioner. In pursuance of such directions, an order has been passed by the respondents on 4.11.2003 wherein it was C.W.P.No.9776 of 2007 2 communicated that the case of the petitioner for compassionate appointment will be decided in terms of the seniority, on his turn in view of the Haryana Compassionate Assistance to the Dependents of the Deceased Government Employees Rules, 2003 (hereinafter referred to as the `2003 Rules'). On 26.4.2006, vide Annexure P-4, the petitioner was communicated that the validity of the seniority list has expired on 31.3.2006 and, therefore, he cannot be given appointment on compassionate ground. Vide the said communication, an option was given to the petitioner to opt for cash financial assistance in stead of compassionate appointment, within a period of one month of the expiry of validity of the seniority list, which was valid upto 31.3.2006. It is the said communication which is the subject matter of challenge in the present writ petition. Reliance is placed by the petitioner on the case “Abhishek Kumar Versus State of Haryana and others, 2007 (3) R.S.J.-121” and “Neeraj Malik Versus State of Haryana and others, 2007 (1) RSJ-235”, to contend that compassionate appointment is to be given as per the policy applicable on the date of death of the employee. In reply, it has been pointed out that the compassionate appointment under ex-gratia scheme has been given strictly as per the seniority maintained by the respondents. Since the name of the petitioner was placed at Sr.No.195 in the seniority list of Class IV category, whereas the employment under this category has been given upto Sr.No.45 at the time of expiration of the validity of the seniority list on 31.3.2006, therefore, in terms of Rule 6 of the 2003 Rules, an option has been rightly given to the petitioner to opt for cash financial assistance. C.W.P.No.9776 of 2007 3 Having heard learned counsel for the parties, we do not find any merit in the present writ petition. The Division Bench of this Court in Civil Writ Petition No.15304 of 2006, Jagdish Versus Uttar Haryana Bijli Nigam and another, decided on 26.2.2008, has considered Abhishek Kumar's case (supra) and various judgments of the Supreme Court and this Court. It was held that the petitioner has no right to seek appointment on compassionate ground on the basis of the Instructions applicable on the date of death of the deceased Government employee. The consideration for appointment on compassionate ground is not a vested right. The object of offering employment on compassionate ground is only to enable the family to get over the financial crises which it faces at the time of the death of the sole breadwinner. In “State Bank of India Versus Jaspal Kaur, 2007 (9) SCC- 571”, the Hon'ble Supreme Court held that an employer cannot be directed to act contrary to the terms of its policy governing compassionate appointments, nor can compassionate appointment be directed dehors the policy. In “State of Haryana and another Versus Ankur Gupta, (2003) 7 SCC-704”, the appointment on compassionate ground was cancelled as it was found that such appointment is not permissible under the modified policy. It was held that it was necessary for the Authority to frame Rules, Regulations or to issue administrative orders which can stand the test of Articles 14 & 16 of the Constitution of India. The appointment on compassionate ground cannot be claimed as a matter of right. It was found that as per the Government Instructions, only those dependents of the deceased Government employee whose family income is upto Rs.2500/- per C.W.P.No.9776 of 2007 4 month, can be appointed in Government service. It was found that the relaxation in the stipulations was granted, though there is no provision whereby relaxation was permissible. In view of the said finding, the order of cancellation of appointment was maintained. The judgment of the Division Bench of this Court in Neeraj Malik's case (supra), relied upon by learned counsel for the petitioner, has been stayed by the Hon'ble Supreme Court vide order dated 13.7.2007 in Special Leave to Appeal (Civil) No.18972 of 2006. The judgment in “Abhishek Kumar's case (supra) was on its own facts as even though the petitioner was offered appointment by the State, but it was the District Magistrate who refused to provide for the post. It was the facts of the case which led to the order passed. No principle of law has been enunciated on the basis of which it can be said that the Rules, which are in existence at the time of death of the employee, would be applicable. In the present case, on the date of death of the father of the petitioner, it was the executive instructions which were regulating the appointment on compassionate ground. Thereafter, the Rules have been framed in terms of the proviso to Article 309 of the Constitution of India regulating the appointment on compassionate ground. After the Rules were framed, the petitioner cannot rely upon the executive instructions as the appointment on compassionate ground is not a right, but a concession given to the dependent members of the deceased family to tide over the financial crises. Therefore, 2003 Rules would be applicable to all cases which were pending when such Rules were framed. In fact, that is the specific provision of such Rules as well. Since the appointment on compassionate ground is C.W.P.No.9776 of 2007 5 not a right, but a concession, therefore, such concession has to be governed in terms of the Rules framed by the respondents. The 2003 Rules have been framed in terms of the proviso to Article 309 of the Constitution of India. Such Rules contemplate preparation of seniority list of the eligible candidates for appointment on compassionate ground and that validity of such seniority list was to remain for a period of 3 years. The petitioner could not be offered appointment on compassionate ground in view of the placement of his name in the seniority list so prepared. Therefore, after expiry of the validity of such seniority list, the respondents are justified in law in offering cash ex-gratia financial assistance in terms of Rule 6 of the Haryana Compassionate Assistance to the Dependents of the Deceased Government Employees Rules, 2006 framed after repealing earlier Rules. Thus, we do not find any illegality or irregularity in the communication dated 26.4.2006, Annexure P-4 whereby the petitioner was offered financial assistance and not the appointment of compassionate ground, which may warrant interference of this Court in exercise of writ jurisdiction. The writ petition stands dismissed. (HEMANT GUPTA) JUDGE 04-03-2008 (MOHINDER PAL) *mohinder JUDGE