Punjab-Haryana High Court
The Secretary And Commissioner vs Smt. Savitri Devi on 30 March, 2009
Author: Mahesh Grover
Bench: Mahesh Grover
RSA No. 2925 of 2006 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA No.2925 of 2006
Decided on : 30-03-2009
The Secretary and Commissioner, Local Self Govt., Govt. of Haryana,
Chandigarh and another
....Appellants
VERSUS
Smt. Savitri Devi
....Respondent
CORAM:- HON'BLE MR. JUSTICE MAHESH GROVER Present:- None for the appellants.
Mr. A.K.Singh Goyat, Advocate for the respondent.
MAHESH GROVER, J This appeal has been preferred by the defendant against the judgments of the learned Trial Court dated 29.7.2005 and that of the First Appellate Court dated 11.2.2006.
The plaintiff-respondent has filed a suit alleging that she is entitled to be employed as regular employee on compassionate ground as her husband was employed as Mali-cum-Chowkidar on ad hoc basis in the year 1978 and he had completed 10 years of service on 1.4.1988 and was entitled to regularisation as per instructions of the Haryana Government dated 6.4.1990 in this regard w.e.f. 1.4.1988. His case for regularisation had already been sent but before the matter could be decided he died in September, 1992. The appellant was appointed as ex gratia appointment. It was her case that she should be appointed on compassionate ground and services of her husband be deemed to be regular service and she be also held entitled to the consequential benefits which her husband was entitled RSA No. 2925 of 2006 2 being a regular employee.
The Municipal Corporation, Faridabad contested the suit and admitted that the husband of the respondent was in their employment since 1978 as Mali-cum-Chowkidar on ad hoc basis. It is pleaded that his name for regularisation could not be forwarded alongwith other such employees as he expired in the year 1992. His claim for being considered as regular employee was denied on the basis of instructions which contemplated regularisation of the employee on the expiry of 10 years of service. It was pleaded that the instructions do not cover the employees who are working on ex gratia employment in place of the deceased employee and therefore the plaintiff-respondent was not entitled to any such a relief.
The parties went to trial on the following issues:-
1. Whether the plaintiff is entitled to regularisation of her services from the date of her employment alongwith equivalent wages?OPP.
2. Whether the suit is not maintainable in the present form?OPD.
3. Whether the plaintiff has no cause of action to file the present suit?OPD.
4. Whether the plaintiff has no locus standi to file the suit?OPD.
5. Whether the suit is bad for want of prior notice under Municipal Act?OPD.
6. Whether this Court has no jurisdiction to try and entertain the present suit?OPD.
7. Relief.RSA No. 2925 of 2006 3
Both the Courts concluded that the instructions of the State Govt. contemplated that service of an incumbent could be regularised on completion of 10 years service which he completed on 1.4.1988 and therefore his service be deemed to have been regularised w.e.f. 1.10.88 and after considering his regular service from 110.1988 till 21st September, 1992 (date of his expiry), the plaintiff-respondent was held entitled to the benefit of employment on compassionate grounds and not as ex gratia as has been pleaded by the appellants.
Aggrieved by the aforesaid findings, Municipal Corporation is in appeal.
No one has put in appearance on behalf of the appellants when the case was called out.
Learned counsel for the respondent while supporting the reasoning given by both the Courts below has also relied upon Division Bench judgment of this Court rendered in CWP No. 2467 of 2005 titled as 'Sita Devi versus State of Punjab & others' decided on 16.8.2008 wherein in almost identical similar circumstances, this Court has directed the respondent therein to notionally consider the case of the incumbent therein for regularisation so as to enable the petitioner in the said petition for being appointed on compassionate grounds.
After hearing learned counsel for the respondent and perusing the impugned judgments, I am of the considered opinion that there is no infirmity in the findings recorded by both the Courts below. Concededly, the husband of the respondent was working as Mali-cum-Chowkidar w.e.f. 1978 and according to the instructions of the Government which were also concededly applicable to the case of the deceased employee he was entitled RSA No. 2925 of 2006 4 to be considered for regularisation w.e.f. 1.10.1988 after completion of 10 years service. For no apparent reason his case was not considered till 1992 when unfortunately he died. His death however should not rob him of the legitimate benefit which he was entitled to while in service, unless the appellants demonstrate from some cogent material that his rights stood defeated by either his conduct or some prejudicial material. There is no such material on record and consequently findings recorded by both the Courts below cannot be termed to be erroneous. The Division Bench of this Court in case referred to above while dealing with almost similar circumstances has accepted the principle of extending the fiction of law to grant the consideration to the case of a deceased employee for being considered as a deemed regular employee. The observations and reasoning of the Division Bench are reproduced below:-
"Learned counsel for the petitioner has argued that name of the husband of the petitioner was included in the seniority list circulated on 16.12.1998 at Serial No. 37. It is due to his death that his services could not be regularised. Otherwise, his juniors were regularised on 25th September, 1998. The counsel has placed reliance on Minutes of the 138th Meeting of the Board of Directors of Punjab State Tubewell Corporation, held on 25th September, 1998 in order to contend that had the husband of the petitioner been alive, he would have been regularised in terms of Resolution 138.14 of the said meeting. The counsel has further contended that in the said meeting, it had been decided to regularise all those work charged employees who had completed more than five years of RSA No. 2925 of 2006 5 service.
Reliance has been placed on a judgment delivered by this Court in case titled as Smt. Saroj widow of Darshan Lal Vs. State of Haryana and others, 1996(3) RSJ 809 wherein a direction was given to notionally consider the case of a deceased employee for regularisation under the relevant instructions. In case, it was found that the said employee would have been entitled to regularisation, then the case of his wife of appointment on compassionate ground could be considered.
In the present case, the petitioner has contended that the husband was entitled to be regularised as he had completed more than five years of service; his name was included in the list of employees to be regularised vide letter No.6755-66/PSTC/CTC/27-ER dated 16th December, 1998 at Serial No. 37. The petitioner has also placed reliance on 138th Meeting dated 25th September, 1998, Annexure P-13 to contend that in the said meeting it was decided that employees with more than five years services were entitled to be regularised whereas husband of the petitioner had put in almost 10 years of service when he suddenly expired.
In the facts and circumstances of the case, we are of the considered view that the writ petition filed by the petitioner deserves to be allowed.
Accordingly, a direction is hereby issued to the respondents No. 2 to 6 to notionally consider whether husband of the petitioner was entitled to regularisation in the light of the RSA No. 2925 of 2006 6 instructions as well as the 138 th meeting of the Board of Directors, Annexure P-13. In case it is found that the husband of the petitioner was entitled to be regularised in accordance with the rules/instructions, then the petitioner's case for appointment on compassionate ground be considered in accordance with law."
Similarly, in the present case also by extending the fiction of law the deceased is directed to be considered as a regular employee w.e.f. 1.10.1988 and by counting his date of regularisation from 1.10.1988 till 21st September, 1992 i.e. the date when he expired, it is also held that the plaintiff-respondent would be entitled to be considered as employee appointed on compassionate grounds. There is no infirmity in the findings recorded by both the Courts below. No substantial question of law has been shown to have arisen for the consideration of this Court and the same being devoid of any merit is hereby dismissed.
March 30 , 2009 (Mahesh Grover) rekha Judge