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2012 DIGILAW 788 (PNJ)

Kamla Devi v. State of Haryana

2012-05-31

AUGUSTINE GEORGE MASIH

body2012
JUDGMENT Mr. Augustine George Masih, J.: (Oral) - Petitioner has approached this Court praying for quashing of order dated 22.2.2007 (Annexure-P-5), vide which the claim of the petitioner qua appointment on compassionate basis, has been rejected on the ground that Instructions dated 1.8.2006 do not provide for employment to the dependents of a deceased employee. Challenge is also to the order dated 27.7.2007 (Annexure-P-6), wherein case for grant of monthly financial assistance was being processed of the petitioner, instead of granting her appointment on compassionate grounds, as per Instructions/Rules of 2003, which is applicable to the claim of the petitioner. 2. It is the contention of the counsel for the petitioner that the husband of the petitioner was working as a Math Master with the Department of Education, Haryana. The husband of the petitioner expired on 9.11.2005. On his death, petitioner submitted an application for appointment to the post of JBT or Hindi or Sanskrit teacher or Clerk under the ex-gratia Scheme well within the time as per the ‘The Haryana Compassionate Assistance to the Dependents of Deceased of Government Employees Rules, 2003’ (in short ‘2003 Rules’). The claim of the petitioner, as per reply filed by the respondents, has only been considered for the post of Clerk and the same has been rejected on the ground that no post, for appointment on compassionate grounds within the 5% reserve quota, was in existence on which the petitioner could be employed. This he contends would leave the petitioner entitled to consideration for appointment to the post of JBT or Hindi or Sanskrit teacher in the light of Rule 7 of the 2003 Rules, according to which appointment is to be offered to the dependent of a deceased Government employee one step lower than the post of deceased Government employee. The post of JBT, Hindi and Sanskrit teacher is one step lower than that of Math Master. He further contends that as per the Haryana School Cadre (Group ‘C’) Service Rules 1998, Rule 9 thereof provides the method of recruitment, qua post of Math master, according to which under Clause ‘d’, 20% posts are to be filled up by promotion from amongst JBT and Classical and Vernacular (C&V) teachers. Since the petitioner is claiming appointment to the post of JBT or Hindi or Sanskrit teacher (which fall in C&V cadre), the petitioner is entitled to be considered against the said post. Since the petitioner is claiming appointment to the post of JBT or Hindi or Sanskrit teacher (which fall in C&V cadre), the petitioner is entitled to be considered against the said post. He accordingly contends that the claim of the petitioner is required to be considered under 2003 Rules for appointment to the post of JBT or Hindi or Sanskrit teacher. 3. His further contention is that 2003 Rules would be applicable to the claim of the petitioner as those Rules were in force at the time when the death of the petitioner’s husband occurred. In this regard, reliance has been placed upon the Full Bench judgment of this Court in the case of Krishna Kumari Versus State of Haryana and others (CWP No. 4303 of 2009 decided on 20.4.2012). He accordingly prays that the impugned orders deserve to be quashed and a direction needs to be issued to respondents to consider petitioner’s case on compassionate grounds under 2003 Rules against the post of JBT or Hindi or Sanskrit teacher. 4. On the other hand, counsel for respondents submits that the contention of the petitioner cannot be accepted for the reason that the pay scale of the Master cadre and that of the Hindi or Sanskrit teacher is the same, i.e. Rs. 5500-9000. His further contention is that the petitioner does not fulfil the prescribed qualification for the post of JBT teacher and, therefore, cannot be considered for the appointment as JBT teacher. Further contention of counsel for respondents is that the case of the petitioner has been rightly considered for appointment to the post of Clerk and has not been granted the appointment for the reason that no post under 5% reserve quota has become available during the prescribed period of four years, which would entitle the petitioner for appointment on compassionate grounds. Mr. Rathee further argues that after coming into force of the ‘The Haryana Compassionate Assistance to the Dependents of Deceased of Government Employees Rules, 2006’ (in short ‘2006 Rules’), there is no provision for appointment on compassionate basis and since 2006 Rules have come into force during the pendency of the claim of the petitioner, the prayer made by the petitioner for appointment on compassionate grounds cannot be granted. He accordingly prays for dismissal of the writ petition. 5. He accordingly prays for dismissal of the writ petition. 5. I have considered the submissions made by the counsel for the parties and am of the considered view that the claim of the petitioner for appointment to the post of Hindi or Sanskrit teacher should have been considered by the respondents in the light of Rule 7 of 2003 Rules. Reference at this stage to Rule 7 of 2003 Rules would be beneficial, which reads as under :- ---------------------------------------------------------------------------------------------------------------------------------- “7.(a)The appointments under Post to which appointment these shall be confined to can be made Group-C and Group D posts only. (b) Status of the deceased employee or the higher qualifications of the dependent shall be no criteria for giving appointment. (c) The appointment being offered shall be at least one step lower than that of the post of the deceased Government employee, except in cases where the deceased employee was working at the lowest level in that category. Provided that while giving the post under these rules only the substantive/officiating post on which the deceased Government employee was working is to be considered and not the pay scale of the deceased.” ---------------------------------------------------------------------------------------------------------------------------------- 6. A perusal of the above Rule would show that appointment on compassionate ground can only be made to Group ‘C’ and Group ‘D’ posts. Status of the deceased Government employee or higher qualification of the dependent of the deceased Government employee shall not be a criteria for giving appointment. There is no dispute with regard to this issue as admittedly the post of Hindi or Sanskrit teacher is a Group ‘C’ post. Therefore, the claim of the petitioner for this post, as far as Clauses ‘a’ and ‘b’ of Rule 7 are concerned, can be considered. As per Clause ‘c’ of this Rule, appointment is to be offered to a dependent of deceased Government employee at least one step lower than the post held by the deceased Government employee. Admittedly, husband of the petitioner was working as a Math Master, i.e. he was in the Master cadre. As per Rule 9 of the Haryana School Cadre (Group ‘C’) Service Rules, 1998, which prescribe the procedure for appointment to the post of Math Master, Clause ‘d’ whereof deals with the case of Math Master specifically states 20% of the posts would be filled up by promotion from amongst JBT and C&V teachers. As per Rule 9 of the Haryana School Cadre (Group ‘C’) Service Rules, 1998, which prescribe the procedure for appointment to the post of Math Master, Clause ‘d’ whereof deals with the case of Math Master specifically states 20% of the posts would be filled up by promotion from amongst JBT and C&V teachers. The Rule clearly spells out that the post of Math Master is a promotional post from C&V cadre. It is not in dispute that Hindi or Sanskrit teacher falls within the C&V cadre and therefore, post of Hindi or Sanskrit teacher would be the feeding cadre for promotion to the post of Math Master. Thus, the said post would be a step lower than the post of Math Master held by the husband of the petitioner. 7. It is also not in dispute that the petitioner fulfills the qualification prescribed for appointment to the post of Hindi or Sanskrit teacher. The claim of the petitioner for appointment to the post of Hindi or Sanskrit teacher has been rejected by the respondents merely on the ground that the pay scale provided for the post of Math Master and that of the Hindi or Sanskrit teacher is the same, i.e. Rs. 5500-9000. This stand of the respondents cannot be accepted in the light of the language of Rule 7 of the 2003 Rules, according to which it is the post held by the deceased employee which is relevant and it is a step below than that post which can be granted to the dependent of deceased Government employee and not the grade of the said post as is being sought to be pressed into service by the respondents to defeat the right of consideration of the petitioner for appointment. 8. Keeping in view the above situation, the stand of the respondents not considering the claim of the petitioner to the post of Hindi or Sanskrit teacher, cannot sustain and is therefore set aside as the same is without any basis and cannot be accepted. Since the claim of the petitioner for appointment to the post of Clerk has already been considered wherein she could not be appointed and for JBT teacher, it is alleged that she is not fulfilling the prescribed qualification, the claim of the petitioner, qua these posts, thus, cannot be accepted. 9. Since the claim of the petitioner for appointment to the post of Clerk has already been considered wherein she could not be appointed and for JBT teacher, it is alleged that she is not fulfilling the prescribed qualification, the claim of the petitioner, qua these posts, thus, cannot be accepted. 9. The stand of the respondents that with the coming into force 2006 Rules, the claim for appointment on compassionate grounds having been seized to be in existence, the claim of the petitioner cannot be considered under 2003 Rules, cannot be accepted in the light of Full Bench judgment of this Court in the case of Krishna Kumari (supra), according to which the Rules prevalent on the date of death of the deceased Government employee shall be the relevant Rules under which the claim for appointment on compassionate grounds is to be considered and decided. 10. In view of the above, the present writ petition is allowed. The orders dated 22.2.2007 and 27.7.2007 (Annexure-P-5 and Annexure-P-6 respectively) are hereby quashed. The directions are issued to the Commissioner and Director General School Education, Haryana-respondent No. 2 to consider the claim of the petitioner for appointment to the post of Hindi or Sanskrit teacher, in accordance with 2003 Rules. This exercise be completed within a period of three months from the date of receipt of certified copy of the order. The decision, so taken, be conveyed to the petitioner forthwith. ---------0.B.S.0------------