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2010 DIGILAW 2266 (PNJ)

Renu Bala v. State Of Haryana

2010-08-09

PERMOD KOHLI

body2010
Judgment Permod Kohli, J. 1. It is an unfortunate case, where the petitioner, a female child lost her parents when she was only 1= years of age. Father of the petitioner late Sh. Ashok Kumar and her mother late Smt. Kanta Devi both were working as J.B.T Teachers in the Haryana Education Department. While travelling in a bus on 25.9.1988 both died in accident. Petitioners date of birth is 9.4.1986, thus, she was 1 = years of age at the time of death of her parents. Office of the Director, Primary Education, Haryana vide order dated 23.5.1989 sanctioned Rs. 15,220/- as ex-gratia grant in favour of the petitioner. However, the amount could not be disbursed, the petitioner being minor at the relevant time. After the death of her parents, petitioner was brought up by her grand father. Petitioner passed her B.A from Punjabi University, Patiala on 21.6.2007. She became major on 9.4.2004. It is stated that neither the ex-gratia amount nor the G.P.F of her late parents has been released to the petitioner or even to her grand father, who was the guardian after the death of her parents. The petitioner submitted a representation dated 15.7.2004 for release of the G.P.F amount, which was followed by another request dated 20.8.2006 (Annexure P-6). Petitioner also applied for compassionate appointment vide her letter dated 12.9.2007 being an orphan. It is also stated that the ex-gratia amount has been enhanced by the Govt. vide order dated 26.4.1998 equal to 10 months emoluments with minimum of 10,000/- and maximum of Rs. 25,000/-. Since the petitioner was not paid ex-gratia and G.P.F amount of her parents nor compassionate appointment was granted to her, this petition has been filed seeking a direction for compassionate appointment being an orphan and release of G.P.F and ex-gratia amount payable to her being the sole surviving Legal Representative of the deceased Govt. employees with interest @ 18%. 2. On being put to notice, the State-respondents admitted the facts alleged in the writ petition relating to death of the petitioners parents and her age etc. It is, however, stated that ex-gratia amount of Rs. 15, 220/- sanctioned on 25.5.1989 could not be paid to the petitioner she being a minor at that time and this amount was kept in a Fixed Deposit. Fixed Deposit receipt No. 0077 has been released in favour of the petitioner. It is, however, stated that ex-gratia amount of Rs. 15, 220/- sanctioned on 25.5.1989 could not be paid to the petitioner she being a minor at that time and this amount was kept in a Fixed Deposit. Fixed Deposit receipt No. 0077 has been released in favour of the petitioner. It is stated that on maturity she will be entitled an amount of Rs. 69, 470.50. It is also stated that the final payment of G.P.F amount of Rs. 13, 123/- has been received by the petitioner on 16.4.2009. In respect to the claim of the petitioner for compassionate appointment, it is stated that the petitioner was minor at the time of death of her parents and there is no provision for keeping a post reserved for the minor under the ex-gratia policy of the State Govt. dated 31.10.1985, which was applicable at the time of death of her parents. 3. Vide order dated 5.11.2009 this Court directed the respondents to file a comprehensive affidavit with regard to other claims of the petitioner particularly her right for family pension and other pensionary benefits as also whether she could be offered compassionate appointment. It has also been observed that on the G.P.F amount of Rs. 12, 137/- only an interest of Rs. 986/- has been paid up to March, 1989. Vide another order dated 7.1.2010 respondents were directed to pay the interest on G.P.F and gratuity up to the date of release of the amount. 4. Admittedly, only G.P.F amount has been released with interest up to March, 1989. The G.P.F amount remained with the respondents till disbursement. It must have earned interest thereon. No interest beyond March, 1989 has been paid to the petitioner. In terms of the order dated 7.1.2007 the respondents have failed to pay any interest after March, 1989. The respondents have also placed on record copy of the receipt dated 22.12.2009, whereby an amount of Rs. 10,000/- was paid to the petitioner on account of ex-gratia. Under the Govt. instructions dated 26.4.1998 the ex-gratia amount was revised equal to 10 months emoluments admissible to the Legal Representative of the deceased Govt. employees with minimum of Rs. 10,000/- and a maximum of Rs. 25,000/-. This amount, in fact, has been fixed on account of the death of a Govt. employees. Petitioner lost her parents and both of them were in Govt. employees with minimum of Rs. 10,000/- and a maximum of Rs. 25,000/-. This amount, in fact, has been fixed on account of the death of a Govt. employees. Petitioner lost her parents and both of them were in Govt. service at the time of their death. Thus, the petitioner is entitled to double ex- gratia amount under the Govt. instructions. She has been paid only Rs. 10,000/-. It is also not disclosed whether this amount of Rs. 10,000/- is equal to 10 months emoluments being received by the deceased Govt. employees. 5. The petitioner is claiming compassionate appointment invoking the Compassionate Appointment Rules, 2003, whereunder special relaxation has been given in case of an orphan child. Rule 18 reads as under :- "Relaxation 18. There shall be no relaxation of any provision of these rules. However, as a special case, these rules shall be relaxed only in the cases of children who have become orphans upon the demise of the Govt. employee. The claim of appointment of such orphans, shall remain alive till one child has attained majority/minimum eligible age for entry into Govt. service." 6. Normally the petitioners claim could only be considered under the Govt. policy i.e. ex-gratia instructions as were applicable at the time of death of her parents. Petitioner being minor at the relevant time could not have been granted ex-gratia appointment. 7. It is a settled law that ex-gratia appointment is not an independent source of recruitment. Honble Supreme Court has unequivocally held in various judgements that the object and purpose of exgratia appointment is to provide immediate relief to the family in penury and it cannot be extended to make it a separate source of recruitment. It has also been held that ex-gratia appointment is an exception to the mandate of Articles 14 and 16 of the Constitution. In this regard, reference can be made to Umesh Kumar Nagpal v. State of Haryana & Ors., reported as 1994(3) SCT 174, wherein following observations have been made :- "However, it is now a well settled principle of law that appointment on compassionate ground is not a source of recruitment. The reason for making such a benevolent scheme by the State or the Public Sector Undertaking is to see that the dependents of the deceased are not deprived of the means of livelihood. The reason for making such a benevolent scheme by the State or the Public Sector Undertaking is to see that the dependents of the deceased are not deprived of the means of livelihood. It only enables the family of the deceased to get over the sudden financial crisis." 8. In case of General Manager (D&PB) & Ors. v. Kunti Tiwary & Anr. reported as (2004) 7 SCC, 271, Honble Supreme Court has held as under :- "Appointments in the public services are made strictly on the basis of open invitation of applications and merit. However, exceptions are made in favour of dependents of employees dying in harness and leaving their family in penury and without any means of livelihood." 9. In case of State of J & K & Ors. v. Sajad Ahmed Mir reported as 2006 (3) SCT 598 the Honble Supreme Court considered the question of delay in the matter and held as under :- " 16. Furthermore, about 12 years have passed. Appellants son is aged about 20 years and daughter is aged about 16 years. Therefore, they have become major. Appellant herself would be aged about 38 years now. She cannot be given any appointment at this age." 10. However, the present case seems to be an exceptional case, where the petitioner lost her both parents. The State of Haryana in its wisdom introduced the policy of granting compassionate appointment to orphans under the 2003 Rules. These rules came into operation on 28.2.2003. The expression Orphan has been defined under Rule 3(k) which is reproduced hereunder :- "(k) "Orphan" means a child who has previously lost one parent and has become an orphan upon the demise of the Govt. employee." 11. Rule 18, however, is an exception to the general and usual policy of giving ex-gratia appointment. From the reading of the rule it appears that the intention of the Govt. is to create a special category for grant of ex-gratia appointment i.e an orphan child whose claim remains intact till he/she attains majority for entry into Govt. service. It is specifically provided that the claim of appointment of such orphan shall remain alive till such child has attained majority for entry into Govt. service. No doubt, this Govt. Policy/Rules came into being much after the date of death of the deceased employees. service. It is specifically provided that the claim of appointment of such orphan shall remain alive till such child has attained majority for entry into Govt. service. No doubt, this Govt. Policy/Rules came into being much after the date of death of the deceased employees. Rule 18 itself has been created as an exception to the general rules of ex-gratia appointment/financial assistance. 12. Keeping in view the spirit, object and purpose of the rules, I am of the considered opinion that the claim of the petitioner is required to be considered in terms of Rule 18 of the Haryana Compassionate Assistance to the dependants of the deceased (to be taken from page 25). The petitioner falls within the definition of the expression Orphan as defined under rule. 13. In view of the above, this petition is allowed. Respondents are directed in the following manner :- 1. To release further ex-gratia amount on account of death of the parents of the petitioner, both of them being govt. employees. 2. The amount of ex-gratia already paid and to be paid to the petitioner be re-calculated equal to 10 months emoluments of the deceased Govt. employees at the time of their death and if, the amount of ex-gratia on such calculation is more than Rs. 10,000/- the balance amount on account of death of one of the Govt. employee and the total ex-gratia on account of the death of the other Govt. employee be paid to the petitioner within two months. 3. The claim of the petitioner for compassionate appoint as an orphan be considered within a period of two months from the date of receipt of the certified copy of this judgement.