REGULAR SECOND APPEAL NO.3210 OF 2009 (O&M) :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: JANUARY 25,2010 State of Haryana and others .....Appellants VERSUS Bhim Singh ....Respondent CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. Sunil Nehra, Sr.DAG, Haryana, for the appellants-State. Mr .B. S. Mittal, Advocate, for the respondent. **** RANJIT SINGH, J. Implementation of the policy formulated to regulate compassionate appointment has invariably been a matter of dispute between the claimant and the Government. Having formulated a policy, the Government is generally seen looking for some loophole or the other to contest the claim for compassionate appointment. This Regular Second Appeal is also an outcome of one such dispute, which has arisen between the claimant and the Government. State of Haryana is in appeal before this Court against a finding recorded by REGULAR SECOND APPEAL NO.3210 OF 2009 (O&M) :{ 2 }: the Trial Court and upheld by the first Appellate Court, holding that the orders impugned dated 28.7.2004 and 6.8.2004 to be wrong, illegal, void and thereby setting-aside the same. Directions were accordingly issued to the State to consider the case of the respondent-plaintiff within a period of three months for appointment on compassionate ex-gratia appointment. Mahavir Singh, father of respondent Bhim Singh, died on 16.12.2003. He was working as Sweeper-cum-Chowkidar in the office of Head Master, Government High School, Sherpura, District Sirsa. Respondent-plaintiff applied for ex-gratia employment but his claim was rejected through orders dated 28.7.2004 and 6.8.2004 on the ground that his father, late Mahavir Singh, did not have three years regular service on the date of his death. There is not much dispute concerning the date of appointment of the deceased father of the respondent-plaintiff, who had joined the service on 3.10.1994 on daily wages basis. His services were regularised on 21.6.2001. It was accordingly pleaded by the respondent-plaintiff that he being an employee of the State w.e.f. 3.10.1994, the claim of the respondent- plaintiff was illegally declined. As already noticed, the stand of the State was that in terms of the Haryana Compassionate Assistance to the Dependents of the Deceased Government Employees Rules, 2003 (for short, “2003 Rules”), period of three years regular service was a condition precedent for grant of compassionate appointment and since the deceased father of the respondent-plaintiff had not completed three years regular service on the date of his death, the respondent- plaintiff was not entitled to be considered for ex-gratia employment. REGULAR SECOND APPEAL NO.3210 OF 2009 (O&M) :{ 3 }: On the basis of pleadings, following issues were framed:- “1. Whether the plaintiff is entitled to relief of declaration to the effect that orders dated 28.7.2004 and 6.8.2004 passed by defendants No.2 and 3 respectively are wrong, illegal, null and void and are liable to be set aside as alleged? OPP 2. Whether the plaintiff is entitled to get the appointment of ex-gratia scheme as alleged?OPP 3. Whether the plaintiff is entitled to relief of mandatory injunction as prayed for? OPP 4. Whether the suit of the plaintiff is not maintainable in the present form?OPD 5. Whether the plaintiff has no cause of action and locus standi to file the present suit? OPD 6. Whether the plaintiff is guilty of suppression of true and material facts from the Court? OPD 7. Relief.” The Trial Court considered the evidence led by the parties and decreed the suit. The same was taken in appeal by the State, which was also dismissed. The State had also delayed in filing the appeal and accordingly application was moved for condonation of delay on the ground that the appellants have been pursing the matter of filing the appeal with the higher officials and hence, delay in filing the appeal be condoned. In support, the appellants had placed reliance on G.Ramegowda Major etc. Vs. The Special Land Acquisition Officer, Bangalore, AIR 1988 SC 897. The respondent-plaintiff had not only contested the first REGULAR SECOND APPEAL NO.3210 OF 2009 (O&M) :{ 4 }: appeal on merits but has strongly opposed the prayer made by the appellant-State to condone the delay in filing the appeal. In this regard, the counsel for the respondent-plaintiff had relied on number of judgments like P.K.Ramachandran Vs. State of Kerala and another, 1998 (3) Punjab Law Reporter 605, Haryana Vidyut Parsaran Nigam and others Vs. Amar Nath, 2007(2) Recent Civil Reports 31 and Pundlik Jalam Patil (D) by Lrs. Vs. Exe.Eng. Jalgaon Medium Project and another, 2009 (1) Punjab Law Reporter 128. On merits also, it was pleaded that requirement of three years regular service could not be insisted upon as Rule 3 (d) only required three years service but the appointment at the time of death ought to be regular appointment. In this regard, respondent- plaintiff had sought support from the judgment in the case of Kamlesh Vs. State of Haryana and others, 2007(1) RSJ 215. Counsel for the appellants would place reliance on the Division Bench judgment in the case of Dharmender Vs. State of Haryana and others, 2005 (3) SCT 763 to submit that substantial question of law about the nature of service envisaged under Rule 3 (d) of 2003 Rules would arise in this case and the appellants were justified in declining the prayer of the respondent for employment as the deceased employee, father of the respondent-plaintiff did not have three years regular service. As per the counsel, three years regular service, being the requirement, has been so interpreted by the Division Bench of this Court in Dharmender's case (supra). On the other hand, counsel for the respondent-plaintiff would refer to the case of Kamlesh (supra) to substantiate that the Trial Court as well as the Appellate Court have rightly decreed the suit and the REGULAR SECOND APPEAL NO.3210 OF 2009 (O&M) :{ 5 }: question of law, as formulated, has already been considered and decided by this Court and, thus, there would not be any need to re- determine the same, once over again. I have perused the judgments in the case of Dharmender (supra) and Kamlesh (supra). The issue, as is arising in the present case, directly arose before this Court in the case of Kamlesh (supra) and is squarely answered by the Division Bench in the said case. In fact, this Court had an occasion of considering the identical issue while deciding Civil Writ Petition No.928 of 2008 (Smt.Anita Devi Vs. State of Haryana and others) decided on 7.9.2009. This view of the Division Bench was accordingly followed by this Court. Rule 3(d) of 2003 Rules, which is an issue in this case defines the `deceased Government employee' as under:- “3(d) “Deceased Govt. Employee” means a Government employee - (i)appointed on regular basis, and not working on daily wages, casual, apprentice, work charged, ad hoc contractual or re-employment basis, (ii) who has served the Government for at least 3 years; (iii) who should not have crossed the age of 55 years.” Rule 3(d)(i) of 2003 Rules provides that appointment of the Government employee has to be on regular basis and not on daily wages, casual, apprentice or work charge etc. This is one of the requirement as per the 2003 rules to cover the employee under the Scheme of compassionate appointment. Rule 3(d)(ii) of 2003 Rules, makes a provision for at least three years service and it does not qualify that this service has to be a regular service. Whereas the REGULAR SECOND APPEAL NO.3210 OF 2009 (O&M) :{ 6 }: State counsel would want the Rule 3(d)(i) and (ii) to be read together but the counsel for the respondent would submit otherwise and in support would place reliance on the ratio of law laid down in the case of Kamlesh (supra). The Division Bench in this case has held as under:- “If Rule 3(d)(ii) of the Rules is read ejusdem generis as suggested by the learned State counsel rather than interpreting both the clauses independently of each other then the basic object of the rules of ameliorating the sufferings of dependents of deceased Government employee would stand defeated. Such is not the intention of the rule making authority. It is trite to observe that socio-economic legislation is required to be interpreted by keeping in view the object sought to be achieved by such legislation. Moreover, Rule 3(d)(ii) has to be read down by adding words regular service. The plain meaning of the Rule is that an employee should have served the Government for at least for three years which the husband of the petitioner has done. It is also pertinent to notice that any adhoc service followed by regularisation is to qualify for pension as has been held by the Full Bench of this Court in Kesar Chand Vs. State of Punjab, 1988 (2) PLR 23. Therefore, we regret our inability to agree with the learned State counsel and reject the interpretation preferred by the respondents in the impugned orders dated 7.6.2005 (Annexure P-3) and 18.8.2005 (Annexure P-5).” REGULAR SECOND APPEAL NO.3210 OF 2009 (O&M) :{ 7 }: This Court in the case of Smt.Anita Devi (supra) has observed as under:- “Still, it is required to be seen whether the rule position would require three years regular service or it is only a requirement of three years service at least. No doubt, first part of the Rule does talk of appointment being on regular basis and not working on daily wages etc., but that in my view would only be in regard to the nature of the employment which the Deceased Government employee was having. If a person dies when he is working on daily wages or a casual, work charged or adhoc basis, he may not be covered by the definition of Deceased Government Employee. However, once the service of the employee are regularised, then second condition is to be seen whether he at least has three years service with the Government. The condition of this service being regular apparently cannot be read into second clause.” It appears that this issue did not directly arise in the case of Dharmender (supra). A perusal of the facts in this case would clearly show that the deceased Government employee in this case had died before being regularised, though he had 12 years service to his credit when he so died. In this background, his wife had first filed a writ petition before this Court, seeking regularization of his services, which was allowed on 18.7.2002 whereas the deceased Government employee had died on 6.7.1998. The services of the deceased Government employee in this background were regularised w.e.f 31.1.1996. While directing regularization, the matter REGULAR SECOND APPEAL NO.3210 OF 2009 (O&M) :{ 8 }: regarding claim of the petitioner therein for appointment on compassionate ground was left open for decision by the respondent in the order passed by the Division Bench. It can be further noticed that the case of the petitioner therein for appointment on compassionate ground was recommended but still no order was passed but ultimately this claim was rejected. The petitioners, thus, had filed the petition with a prayer that had the claim of the deceased Government employee considered for regularization at a proper time, he would have had the requisite regular service required as on 6.7.1998 when he died. The plea further was that if that had happened, the claim of the petitioner would have been considered under the earlier instructions and not under 2003 Rules. Even the provisions of Rules 3(d)(i) and (ii) were challenged being ultra-vires of Article 14 of the Constitution and it was pleaded that the object of the Rule was to give assistance to the family of the deceased Government employee which can not be frustrated merely on the basis of length of service to be regular. It was pleaded that there can be no distinction between a regular employee and the employee working on daily wages, casual etc. The case pleaded was, thus, entirely different and the Division Bench in the Case of Dharmender (supra) did not consider the case from this angle whether the requirement of regular service of the deceased would be an essential condition on the basis of Rule 3(d) or it is only that the appointment of an employee has to be on the regular basis. Though, the Court in the Case of Dharmender (supra) has observed that a distinction is made between a regular employee and other employee but the Court did not directly deal with this proposition of law whether the regular REGULAR SECOND APPEAL NO.3210 OF 2009 (O&M) :{ 9 }: service could be read into the requirement of three years service under Rule 3(d)(ii) of 2003 Rules. Another reason, which apparently weighed with the Court in the case of Dharmender (supra) was the time that has lapsed between the date of death of the employee and the date of consideration for compassionate appointment. In this regard, reference was made to the ratio of law laid down in Umesh Kumar Nagpal Vs. State of Haryana, 1994 (4) Service Cases Today 174 to observe that the Hon'ble Supreme Court has deprecated the practice of granting appointment on compassionate ground as a matter of right. No such consideration would arise in this case. Accordingly, the ratio of law laid down in Dharmender's case (supra) apparently is not in conflict with the Division Bench judgments in the case of Kamlesh (supra). There would, thus, be no need to refer this case for resolving the conflict as submitted by the learned State counsel. Another reason which will persuade me not to interfere in this case is that the first appeal filed by the appellants was also dismissed on the ground of delay as the same was not held justified and accordingly the appeal was rejected on this ground also. While considering the plea of the appellants, the first Appellate Court had observed that District Education Officer had first written to the authorities to implement the judgment passed by the Trial Court. It is on record that even the Legal Remembrancer, Haryana, had accepted the opinion of the District Attorney that the case in question was not a fit one for filing appeal. In this background, District Education Officer had written to the Commissioner to implement the judgment and decree passed by the Trial Court. It is then noticed that REGULAR SECOND APPEAL NO.3210 OF 2009 (O&M) :{ 10 }: sudden change of mind on the part of authority to direct the District Education Officer to file appeal was due to reasons other than merit. Earlier there was no move to file appeal but the case was being considered for implementing the judgment and decree. It is noticed that the decision to file appeal apparently was taken, when the employee of the office of the appellants was directed to present personally before the Court in response to the execution petition filed by the respondent-plaintiff for implementing the judgment and decree passed by the Trial Court. Being cheesed of due to passing of such direction, the decision was taken to file this appeal after a long gap. The view taken by the first Appellate Court to say that there was no sufficient reason forthcoming to explain the delay in filing the appeal is, thus, fully justified and, therefore, is upheld. The Regular Second Appeal is accordingly dismissed. January 25, 2010 ( RANJIT SINGH ) khurmi JUDGE