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2014 DIGILAW 31 (PNJ)

Harmeet Singh v. State of Haryana

2014-01-08

FATEH DEEP SINGH, HEMANT GUPTA

body2014
Hemant Gupta, J. This order shall dispose of CWP No. 6370 of 2006 filed by Harmeet Singh challenging the order dated 2.3.2006 (Annexure P-16) of recall of his order of appointment as dependant son of Smt. Harcharan Kaur, who was prematurely retired on account of her medical condition w.e.f. 31.05.2004 vide order dated 20.12.2004 (Annexure P-2). The other writ petition (CWP No. 11177 of 2013) has been filed by the mother of the petitioner in the first writ petition seeking reinstatement in service of the petitioner, her son, or in the alternate her own reinstatement as she has not been permitted to join even though she has submitted joining report personally on 07.09.2006 and later under registered letter on 08.09.2006 consequent to the order dated 2.3.2006 (Annexure P-15). For facility of reference, the facts are taken from CWP No. 6370 of 2006. The petitioner was offered appointment on compassionate grounds on account of medical unfitness of his mother on 20.06.2005. As a consequence to the offer of appointment, the petitioner joined services. On 02.03.2006 the order of premature retirement of the mother of the petitioner and also the offer of appointment to the petitioner was recalled vide separate orders (Annexures P-15 & P-16). 2. Learned counsel for the petitioner has vehemently argued that the claim of the petitioner for appointment has been rejected relying upon the Haryana Compassionate Assistance to the Dependents of Deceased Government Employees Rules, 2003 (for short 'the Rules') wherein such rules are applicable only in respect of deceased Government employees and not in respect of employees who are retired on medical grounds. The petitioner has been appointed in pursuance of the policy circulated on 31.08.1995 (Annexure P-22) permitting appointment on compassionate grounds to a dependent of Government servant who is declared mentally unfit/blind or incapacitated by the Special Board and retired on or before attaining the age of 55 years. Clause 5 from the circular dated 31.08.1995 reads as under:-- 5. That facility of compassionate employment to a dependent of a Govt. servant shall be available, if the latter is declared medically unfit/blind/incapacitated by the Special Board and retired on or before attaining the age of 55 yrs in the case of class I, II, II Officers/officials and 57 years in the case of Class IV employees. A Govt. That facility of compassionate employment to a dependent of a Govt. servant shall be available, if the latter is declared medically unfit/blind/incapacitated by the Special Board and retired on or before attaining the age of 55 yrs in the case of class I, II, II Officers/officials and 57 years in the case of Class IV employees. A Govt. employee who is declared incapacitated/blind after 55 years of age in the case of Group ABC and after 57 yrs in the case of Group D employees, will not be entitled to this facility. Subject to this, terms and conditions and procedure applicable in the case of compassionate employment to a dependent of deceased employee would be applicable in these cases as well. 3. The petitioner relies upon an order passed by the Division Bench of this Court in CWP No. 15550 of 2004 titled as "Shankar Lal Sharma v. State of Haryana and others" decided on 23.09.2005, wherein the order of termination relying upon the Rules was set aside. 4. On the other hand Mr. Garg has vehemently argued that the instructions contemplating appointment on compassionate grounds to the Government employees who are declared medically unfit stands repealed in terms of Clause 19 of the Rules. Clause 19 repeals all the instructions issued from time to time regarding providing of financial assistance and appointments made under ex-gratia scheme. 5. Reliance is also placed upon judgment of Division Bench of this Court in CWP No. 2785 of 2006 titled as "Rajan v. State of Haryana and others" decided on 05.02.2008, wherein vires of the Rules have been upheld considering the argument that the Rules have taken away the right of the dependents of the employee who has been declared medically unfit. Learned counsel also relies upon judgment in CWP No. 5110 of 2006 titled as "Vinod Kumar v. The State of Haryana and others" decided on 05.02.2008, wherein the order of termination of dependent employee on compassionate grounds on account of medical unfitness of the father of the petitioner was dismissed and CWP No. 3779 of 2005 titled as "Gurdevi v. State of Haryana and others" decided on 10.03.2005, wherein the similar claim of dependent to seek appointment on compassionate grounds has not found favour with this Court. 6. We have heard learned counsel for the parties and find that the writ petition filed by the petitioner warrants to be allowed. 6. We have heard learned counsel for the parties and find that the writ petition filed by the petitioner warrants to be allowed. The right of the compassionate appointment on account of medical incapacitation was conferred vide circular dated 31.08.1995, the relevant clause has been reproduced above. Such clause was inserted in a scheme contemplating appointment on compassionate grounds to the dependents of the deceased employees. The Rules deal with right of the appointment to the dependents of deceased Government employees alone. There is no reference of employment or of financial assistance to the dependents of the employees who have been declared medically unfit and retired from service. Therefore, Clause 19 of the Rules can be read only to the extent that the provision has been made in the Rules i.e. in respect of employment of dependents of deceased Government employees and not in respect of the employees who are retired on account of medical condition. 7. In Rajan's case (supra), no reference was made to the right of employment conferred on the dependents of the Government employees who are declared medically unfit vide circular dated 31.08.1995. The argument was that the Rules did not provide for appointment to the dependents of employees who have been declared medically unfit. Since the attention of the Court was not drawn to the circular dated 31.08.1995 nor any such argument was raised, therefore, the issue whether the dependents of the Government employees who are declared medically unfit cannot be said to have been raised and decided in the aforesaid case. Similar is the situation in Vinod Kumar's case (supra), wherein the Rules were interpreted. It was found that there is no provision of appointment on compassionate grounds to the dependents of the employees who have been declared medically unfit. Again the attention of the Court was not drawn to the circular dated 31.08.1995. 8. In Gurdevi's case (supra), the petitioner has sought appointment on compassionate grounds relying upon instructions dated 02.12.1975, 23.11.1992 and 01.12.1994. It was found that the appointment of ladies in the concerned department was prohibited and that the other departments have been approached to get employment by the petitioner but no department has offered appointment. In these circumstances, the Court said that the petitioner does not have any right to seek appointment under the instructions issued. 9. It was found that the appointment of ladies in the concerned department was prohibited and that the other departments have been approached to get employment by the petitioner but no department has offered appointment. In these circumstances, the Court said that the petitioner does not have any right to seek appointment under the instructions issued. 9. In the present case, the petitioner has been offered appointment in terms of Government Instructions dated 31.08.1995. Such instructions cannot be deemed to be superseded by framing of the Rules which deals with only appointment on compassionate grounds of the deceased Government employee. Such Rules does not take into his ambit, the appointment to the dependents of Government servants who are declared medically unfit. The petitioner was offered appointment and has joined services as well. The termination effected for the reason that the Rules does not contemplate appointment on compassionate grounds is wholly unjustified and is illegal. The termination order is also unwarranted for the reason that it was passed without giving an opportunity of hearing. 10. Consequently, we allow CWP No. 6370 of 2006 by setting aside and quashing the order dated 02.03.2006 (Annexure P-16). It is further ordered that the petitioner-Harmeet Singh be reinstated in service by granting continuity in service forthwith preferably within a period of one month but he shall not be paid the wages for the period he has not worked for the department. As a consequence, the writ petition (CWP No. 11177 of 2013) filed by the mother is rendered infructuous. The writ petitions are disposed of accordingly.