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Himachal Pradesh High Court · body

1998 DIGILAW 145 (HP)

KALPNA VERMA v. H. P. VIDHAH SABHA

1998-08-05

KAMLESH SHARMA, SURINDER SARUP

body1998
JUDGMENT Kamlesh Sharma, J. (Oral): In the above writ petition the petitioner has prayed that she may be given appointment on compassionate ground either by respondent No. 1 or respondent No. 2. Respondent No. 1 is Himachal Pradesh Vidhan Sabha, who is represented by Shri O.P. Sharma, learned counsel whereas respondent No. 2 is Lok Sabha who has not put in appearance despite service on it and has been proceeded ex-parte. 2. The brief facts arising out of the pleadings of the parties are that late husband of the petitioner, namely, Raj Kumar Verma, was appointed as Reporter in H.P. Vidhan Sabha Secretariat on 25.9.1985. He was confirmed as Reporter on 27.11.1990, "but before that" he was appointed as Parliamentary Reporter Grade-I with respondent No.2 vide office order dated 3.10.1989. While relieving late Raj Kumar Verma respondent No.l passed office order dated 16.10.1989 stating that," his lien in the Secretariat shall remain for the period of two years. Thereafter, he has either to return back to this Secretariat or he has to resign from this Secretariat" It is not in dispute that neither any order terminating his lien was passed by respondent No.l nor he had resigned as per the stipulation in order dated 16.10.1989. Rather his name continued appearing in the seniority list as on 1.4.1993 (Annexure P-2) circulated by respondent No.l on 22.5.1993. Unfortunately, Raj Kumar Verma died on 19.4.1993 in an accident while coming from his residence to office on Scooter leaving behind the petitioner as his widow and two minor daughters, one taking birth posthumously one month after the death of Raj Kumar Verma. The petitioner made simultaneous representations to respondent No.l as well as respondent No. 2 for compassionate appointment. The representation made by the petitioner to Governors Secretariat was forwarded to Under Secretary (G.A.D.), who, in turn wrote to Secretary H.P. Vidhan Sabha on 16.7.1993 that action taken on the representation of the petitioner may be informed to his office arid the petitioner. The representation made by the petitioner to Governors Secretariat was forwarded to Under Secretary (G.A.D.), who, in turn wrote to Secretary H.P. Vidhan Sabha on 16.7.1993 that action taken on the representation of the petitioner may be informed to his office arid the petitioner. On the same date Secretary H.P. Vidhan Sabha wrote to Lok Sabha Secretariat, Sansad Bhawan, New Delhi, in reply to their letter dated 16.7.1993 that late Raj Kumar Verma was employed in Lok Sabha Secretariat prior to his death and all the benefits admissible to the family of the deceased were to be given by Lok Sabha only, therefore, Vidhan Sabha Secretariat could do nothing in the matter of giving compassionate appointment to the petitioner and also for another reason that there was no vacant post in Vidhan Sabha Secretariate against which the petitioner could be appointed and her representation was rejected. On receipt of the letter of rejection the petitioner again wrote to the Secretary, H.P. Vidhan Sabha on 19.8.1993 that her husband late Raj Kumar Verma was holding a permanent lien on his post in H.P. Vidhan Sabha, as such, she had a right to claim compassionate appointment with it. She also prayed that she might be given appointment at any early date as she was finding it extremely difficult to maintain her children. Again by his office order dated 28.8.1993 Under Secretary H.P. Vidhan Sabha informed the petitioner that the responsibility to give appointment on compassionate grounds to the family of the deceased lies with the department where the official is employed prior to his death and she was advised to put forth her demand to seek employment on compassionate ground with Lok Sabha Secretariat where her husband was working prior to his death. Thereafter, the petitioner by way of telegram (Annexure P.t9) asked Lok Sabha Secretariat whether her husband late Raj Kumar Verma was confirmed employee of Lok Sabha Secretariat or not to which she got reply dated 29.9.1993 that he was not confirmed in his post in Lok Sabha Secretariat." In view of this, the petitioner again sent representations to H.P. Vidhan Sabha which were also rejected and rejection was conveyed to the petitioner by memo dated 23.5.1994 and 16.5.1994 (Annexure P-1S and Annexure P-16). It is in this background that she has approached this Court by way of this writ petition. 3. It is in this background that she has approached this Court by way of this writ petition. 3. Respondent No. I mite reply filed on the affidavit of Shri K.L. Verma, Secretary, Vidhan Sabha, has reiterated its stand that the husband of the petitioner was an employee of Lok Sabha at the time of his death as his lien stood automatically terminated at the expiry of a period of two years from the date of his being relieved from the Secretariat on 16th October, 1989 as per the terms imposed in the relieving order. It is further stated that neither he reverted back to the parent department nor did he resign from the post, as such, his lien automatically stood terminated from the Vidhan Sabha Secretariat It is also averred that ex- gratia payments etc. Lave been received by the petitioner from the Lok Sabha, as such, it is for the Lok Sabha Secretariat to give her appointment on compassionate ground as per the policy of - appointment on compassionate ground. In respect of seniority list (Annexure P-2) it is stated mat the name of the petitioner was shown in it purely on technical and administrative grounds as he was not confirmed by the Lok Sabha Secretariat In nutshell, the stand of respondent No. 1 is that the petitioner is knocking at the wrong door and it is for the Lok Sabha Secretariat to grant her appointment on compassionate ground and the present writ petition against it deserves to be dismissed. 4. We have heard learned counsel for the parties and gone through the record. From the pleadings of the parties it is clear that both the respondents have not opposed the appointment of the petitioner on compassionate ground on merit for any reason whatsoever, including that she is not eligible under the Rules. Respondent No. 2 has not come forward to oppose this writ petition where as respondent No. 1 is denying its responsibility merely on the ground that late husband of the petitioner was not its employee at the, time, of his death. Therefore, in order to find out whether respondent No.l is liable to give appointment on compassionate ground to the petitioner it is necessary to decide whether late husband of the petitioner was employee of respondent No. 1 or not. Therefore, in order to find out whether respondent No.l is liable to give appointment on compassionate ground to the petitioner it is necessary to decide whether late husband of the petitioner was employee of respondent No. 1 or not. It is not in dispute that the petitioner was confirmed on 7.11.1990 as Reporter in H.P. Vidhan Sabha after he joined Lok Sabha as Parliamentary Reporter Grade -I on 17.10.1989. It is true that in the relieving order dated 16.10.1989 (Annexure P-l) it was stated that the lien of the husband of the petitioner would remain for a period of two years and thereafter either he was to return back to H.P. Vidhan Sabha or he was to resign from his post in H.P. Vidhan Sabha. But from the material on record, it is also clear that neither the husband of the petitioner returned back to H.P. Vidhan Sabha nor did he resign and his lien continued to be on die post against which he was confirmed in H.P. Vidhan Sabha, for which reason ever, in the seniority list as on 1.4.1993 circulated on 22.S.1993 by respondent No.l the name of the husband of the petitioner appeared at serial No.7 and it was stated in the remarks column that on his appointment in Lok Sabha he was relieved on 16.10.1989. In these circumstances, respondent No. 1 is not right in taking the stand that the lien of the husband of the petitioner stood automatically terminated on the expiry of two years from the date he was relieved from H.P. Vidhan Sabha. In this connection reference to Fundamental Rule 14-A (a) is relevant which is as under:- "Except as provided in clauses (c) and (d) of this rule and Rule 97, a Government servants lien on a post may, in no. In this connection reference to Fundamental Rule 14-A (a) is relevant which is as under:- "Except as provided in clauses (c) and (d) of this rule and Rule 97, a Government servants lien on a post may, in no. circumstances, be terminated, even with his consent, if the result will be to leave him without a lien or a suspended lien upon a permanent post" The perusal of this Rule shows that a government servant cannot be left without lien in any circumstances and his lien cannot be terminated even with his consent, if the result will be to leave him without a lien or a suspended lien upon a permanent post Since the husband of the petitioner was not confirmed in Lok Sabha, termination of his lien against the permanent post in H.P. Vidhan Sabha would have left him without lien and would have been violative of Fundamental Rule 14-A (a). 5. Rule 14-A his been considered by Supreme Court in V. Sridharan Nair v. State of Kerala & Ors. AIR 1986 SC 2201 and it was observed that this rule mandates that an officers lien on a post shall not be terminated even with his consent if the consequence is to leave him without a lien or a suspended lien upon a permanent post. In this judgment, the learned Judges of Supreme Court were dealing with a case in which the facts were almost similar to the case in hand. The petitioner in that case was sent on deputation to another department and he requested to allow him to continue in the said department by terminating his lien in the parent department. In the meantime, the department in which he had gone on deputation was merged with another department and the lien of the said petitioner was terminated in his parent department. In this context referring to Rule 24 of Kerala Service Rule, which is akin to Rule 14-A (a) of Fundamental Rule, the learned judges have held that in the absence of any material on record that the petitioner was confirmed in the department where he was working after merger of the department in which he went on deputation, the order of termination of lien in his parent department cannot be allowed to stand as it would work great injustice against the petitioner. (Also see Triveni Shankar Saxena v. State of U.P., AIR 1992 SC 496 and Satya Narain Pareek v. State of Rajasthan, (1996) 8 SCC 654). 6. In view of our findings above that late husband of the petitioner was permanent employee of H.P. Vidhan Sabha, it is the responsibility of H.P. Vidhan Sabha to give appointment on compassionate ground to the petitioner. Now, we would deal with another stand of H.P. Vidhan Sabha that there was no post available with it against which the petitioner could be appointed on compassionate ground. By now it is well settled mat there should not be delay in making appointment on compassionate ground which would defeat die very purpose of providing such appointment. In this connection, we refer to the judgment of Supreme Court in Smt. Sushma Gosain & Ors. v. Union of India & Ors. AIR 1989 SC 1976. In Paragraph -9 of this judgment the learned Judge have observed that:- "We consider that it "must be stated unequivocally that in all claims for appointment on compassionate grounds, there should not be any delay in appointment The purpose of providing appointment on compassionate ground is to mitigate the hardship due to death of the bread earner in the family. Such appointment should, therefore, be provided immediately to redeem the family in distress. It is improper to keep such case pending for years. If there is no suitable post for appointment, supernumerary post should be created to accommodate the applicant. (Emphasis supplied) 7. In view of the ratio of above judgments of Supreme Court we have no hesitation to hold that respondent No. 1 could not deny appointment on compassionate ground to the petitioner for the reason that no post was available with it. For want of vacancy the rehabilitation of the petitioner by giving her appointment on compassionate ground should not be postponed further as she has already been struggling for the last more than five years. 8. Therefore, we direct respondent No. 1 to appoint the petitioner on compassionate ground on a suitable post of Class-III in its Secretariat, even by creating a supernumerary post if no vacant post is available at present with it, with in a period of six weeks. 9. The writ petition is allowed in the above terms. 8. Therefore, we direct respondent No. 1 to appoint the petitioner on compassionate ground on a suitable post of Class-III in its Secretariat, even by creating a supernumerary post if no vacant post is available at present with it, with in a period of six weeks. 9. The writ petition is allowed in the above terms. No order as to cost CMP No. 1763/95 In view of the orders passed in the main case, this application stands disposed of.