Punjab-Haryana High Court
Date Of Decision:05.2.2013 vs Harjinder Kaur on 5 February, 2013
Bench: A.K.Sikri, Rakesh Kumar Jain
1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
1. LPA.No.1539 of 2012 (O&M)
Date of Decision:05.2.2013
State of Punjab and others
--Appellants
Vs.
Harjinder Kaur
--Respondent
2. LPA.No.1356 of 2012 Date of Decision:05.2.2013 The State of Punjab and others
--Appellants Vs. Davinder Kaur @ Davinderpal Kaur
--Respondent
3. LPA.No.1364 of 2012 (O&M) Date of Decision:05.2.2013 State of Punjab and others
--Appellants Vs. Baljit Kaur and others
--Respondents 2
4. LPA.No.1418 of 2012 (O&M) Date of Decision:05.2.2013 The State of Punjab and others
--Appellants Vs. Kushma Devi and another
--Respondents 5. LPA.No.1419 of 2012 (O&M) Date of Decision:05.2.2013 The State of Punjab and others
--Appellants Vs. Bhupinder Kaur and another
--Respondents 6. LPA.No.1440 of 2012 (O&M) Date of Decision:05.2.2013 State of Punjab and others
--Appellants Vs. Anita Kumari and another
--Respondents 3 7. LPA.No.1454 of 2012 (O&M) Date of Decision:05.2.2013 The State of Punjab and others
--Appellants Vs. Balwinder Kaur
--Respondent 8. LPA.No.1494 of 2012 (O&M) Date of Decision:05.2.2013 The State of Punjab and others
--Appellants Vs. Surjit Kaur
--Respondent CORAM: HON'BLE MR.JUSTICE A.K.SIKRI,CHIEF JUSTICE HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Mr.H.S.Sidhu and Mr.P.S.Bajwa,Addl.A.G Punjab, for the appellants Mr. J.S.Manipur,Advocate, for the respondent in LPA Nos. 1539, 1364, 1356, 1418, 1419, 1454 of 2012 (O&M) Mr.Ramesh Goyal,Advocate, for the respondents in LPA No.1440 of 2012 (O&M) Mr.P.K.Goklaney,Advocate, for respondent in LPA No.1494 of 2012 (O&M) 4 A.K.SIKRI,CHIEF JUSTICE, (Oral) By this judgment, we shall be disposing of eight appeals bearing L.P.A.No. 1539 of 2012 (O&M) titled as State of Punjab and others Vs. Harjinder Kaur; L.P.A.No. 1356 of 2012 (O&M) titled as The State of Punjab and others Vs. Davinder Kaur @ Davinderpal Kaur; L.P.A.No. 1364 of 2012 (O&M) titled as State of Punjab and others Vs. Baljit Kaur and others; L.P.A.No. 1418 of 2012 (O&M) titled as State of Punjab and others Vs. Smt.Kushma Devi and another; L.P.A.No. 1419 of 2012 (O&M) titled as State of Punjab and others Vs. Smt. Bhupinder Kaur and another; L.P.A. No.1440 of 2012 (O&M) titled as State of Punjab and others Vs. Anita Kumari and another; L.P.A.No.1454 of 2012 (O&M) titled as State of Punjab and others Vs. Balwinder Kaur; L.P.A. No. 1494 of 2012 (O&M) titled as State of Punjab and others Vs. Surjit Kaur, as common question of law is involved therein.
In all these appeals, there is a delay in filing the appeals. We find that in some cases, delay of 70 to 72 days which is adequately explained,was condoned by the Co-ordinate Bench. No doubt,in the cases of Smt. Harjinder Kaur, Baljit Kaur and Surjit Kaur delay is more than 400 days in filing the appeals, however, since the question of law which needs to be decided is common and it has to be gone into in all the cases,there is no reason to dismiss these three appeals on the ground of limitation. We,thus,condone the delay in these three appeals also and proceed to hear all these appeals on merits, it is more so when in some of the appeals, delay has already been condoned by the earlier 5 bench.
Smt. Harjinder Kaur, who is respondent in LPA No.1539 of 2012, had filed C.W.P.No.20731 of 2008, which has been allowed by the learned Single Judge, vide impugned order dated 22.7.2011. Challenging that order, LPA No. 1539 of 2012 (O&M) is filed. Other LPAs are filed against the orders passed in writ petitions wherein the case of Smt. Harjinder Kaur has been followed and because of this reason, all these appeals are taken up together for disposal.
In order to appreciate the controversy, it is necessary to point out the basis on which Smt. Harjinder Kaur had filed the writ petition and the circumstances in which it came be allowed by the impugned judgment.
Amarjit Kumar, late husband of Smt. Harjinder Kaur was engaged on daily wage basis by the appellants as a Pump Operator w.e.f. 01.11.1991. He continuously worked for four years. He alongwith other respondents filed CWP No. 6162 of 1995 titled as Gurcharan Singh and 972 others Vs. State of Punjab and others, seeking regularization of their services on the aforesaid post and also for grant of regular pay scale attached to the post of Pump Operator. This writ petition was allowed by this Court on 08.4.1996 and directions were issued to the respondents to pay him and all other co- petitioners minimum pay scale attached to the post plus DA. He, accordingly, started getting pay scale of the post. In the year 2001, the State of Punjab framed a policy of regularization known as "Review of the policy of regularization of work charged/daily wage 6 and other categories of employees". This policy is dated 23.1.2001 and is hereinafter referred to as "Regularization Policy". As per this policy, the case of such work charged/daily wage employees were to be considered for regularization after three years service subject to availability of regular posts. A list of such work charged/daily wage employees was prepared on the basis of their dates of joining in the aforesaid capacity and on maturing their turn on the regular post, such persons were to be regularized. Before turn of husband of Smt.Harjinder Kaur matured, he died on 06.5.2005. Smt.Harjinder Kaur filed the writ petition in 2008 claiming family pension on the ground that had her husband remained alive, he would have been regularized under the aforesaid policy dated 23.1.2001 and since he had completed qualifying service to the post, he should be taken as a regular employee under the policy dated 23.1.2001 with all consequential benefits and she should be granted family pension.
Along with this petition, she also filed application seeking interim direction against the appellants herein to grant her family pension during the pendency of the writ. She had also referred to the provisions of Rule 6.17 of the Punjab Civil Services Rules Volume II, which regulate Family Pension Scheme,1964. It, inter-alia provides that the Scheme is applicable to the regular employee of Punjab in a pensionable establishment. Therefore, knowing this fact that till her husband is not treated as a regular employee, she would not be entitled to family pension, she raised the relief in the writ petition that he be deemed as a regular employee appointed against a sanctioned post. 7
The writ petition was admitted on 12.5.2010. While admitting the writ petition, the learned Single Judge also passed interim order directing the appellants to release family pension to Smt.Harjinder Kaur forthwith w.e.f. 17.4.2008 on the assumption that the deceased-husband of the petitioner was a 'regular employee'. In this order, it was also observed that in the event of non-compliance of this order, the Registry would list the writ petition suo motu for contempt proceedings.
The appellant challenged this order by filing LPA No. 984 of 2010. That LPA along with other LPA No. 980 of 2010 in which case also such and similar order for payment of pension was passed, was decided on 23.8.2010. A perusal of this order would demonstrate that the appellants had categorically argued that '1964 Pension Scheme' could not enure to the benefit of Smt.Harjinder Kaur and, therefore, such an interim order could not have been passed. A number of judgments in support of this assertion were cited. These are taken note of in para No.3 of the judgment dated 23.8.2010 passed by the learned Division Judge observing as under:-
"Having heard learned State counsel, we are of the considered view that the matter requires detailed consideration at the hands of learned Single Judge. Therefore, we request the learned Single Judge to adjudicate on the issue expeditiously preferably within a period of two months. However, we decline to stay the interim direction for releasing the family pension to the petitioner-respondent(s).
The appeal was disposed of in the aforesaid terms".
It is clear from the above that the appeal was not dismissed, 8 but disposed of, and at the same time the learned Division Bench refused to interfere with the order of the learned Single Judge and it was categorically opined that the matter required a detailed consideration at the hands of the learned Single Judge, so much so, a request was made to the learned Single Judge 'to adjudicate on the issue expeditiously'. The tenor of this order is very clear, namely the matter was to be decided on merits and all the issues which were raised by the appellant needed to be thrashed.
The appellants had filed S.L.P against the aforesaid order of the learned Division Bench which was dismissed on 18.10.2010. In all the event, since the order of the learned Single Judge dated 12.5.2010 granting family pension was an interim order, it was necessary to deal with the issue on merit after taking into consideration the contentions of both the parties.
Since the interim order had attained finality, the appellant had no choice but to implement that order and for this reason, the order dated 03.2.2011 was passed sanctioning family pension to Smt.Harjinder Kaur. This order very categorically states that sanction for grant of pension was for the period from 17.4.2008 to 31.3.2011 because of the reason that writ petition filed would be decided by that time, more so, when the learned Division Bench had already requested the learned Single Judge to decide the writ petition expeditiously and preferably within a period of two months. However, when the matter came up for hearing, the learned Single Judge without going into the merit of the controversy and only on the ground that the family pension 9 has been released to Smt.Harjinder Kaur vide order dated 03.1.2011, disposed of the writ petition by observing that no further orders were required to be passed. This short order of the learned Single Judge, dated 22.7.2011, is reproduced below in its entirety:-
"The writ petition has been filed for issuance of a writ in the nature of certiorari for quashing the impugned reply/letter dated 27.5.2008 (Annexure P-6) whereby the claim of the petitioner for family pensionary benefit has been rejected.
In compliance of order dated 12.05.2010, an order dated 03.01.2011 has been placed on record by counsel for the petitioner. Vide this order, the family pension has since been released to the petitioner under Rule 9.14 of the Punjab Civil Services Rules, Vol. III. Provisional pension amounting to basic pension of `3500/- per month plus other permissible allowed in favour of Smt. Harjinder Kaur, wife of late Sh.Amarjit Kumar, Pump Operator has been issued. The sanction will be for the period from, 17.4.2008 to 31.3.2011. Counsel for the petitioner states that the family pension is being paid to the petitioner regularly. This order (Annexure P-1) has been passed by the Department after challenging the interim order by way of filing LPA No.984 of 2010 in CWP No.20731 of 2008, which was eventually dismissed. The claim of the petitioner has since been decided in her favour by considering her husband to be regular employee in pursuance to the instructions dated 23.01.2001 whereby he was to be regularized.
No further orders are required to be passed in this writ petition.
Disposed of".
At the cost of repetition the circumstances in which order dated 03.02.2011, sanctioning the family pension to Smt. Harjinder Kaur, was passed, were in compliance with the order dated 12.5.2010 passed by the learned Single Judge, which was an interim 10 arrangement. Inspite of the order of the learned Division Bench in LPA Nos. 980 and 984 of 2010 that the matter needs detailed consideration and adjudication on all aspects, that exercise has not been done by the learned Single Judge.
We, therefore, have no option but to set aside the order of the learned Single Judge and remit the case back for fresh adjudication on merits.
As pointed out above, all other writ petitions were allowed following the orders passed in the writ petition filed by Smt. Harjinder Kaur, therefore, orders passed in those writ petitions would not stand to judicial scrutiny and have to be set aside except in C.W.P.No. 16086 of 2011 out of which LPA No. 1364 of 2012 arises.
Insofar as LPA No.1364 of 2012 is concerned, we are not remitting this case back because of the peculiar facts of this case which clinch the matter in favour of the writ petitioner Smt.Baljir Kaur (respondent No.1 in the LPA No.1364 of 2012 (O&M). We find from the record that in this case, regularization order of the husband of Baljit Kaur was specifically issued vide No.188 dated 24.5. 2011 in pursuance of letter No.11/8/2009/-4PP3/397 dated 18.3.2011. Insofar as husband of Baljit Kaur is concerned, his turn had matured on 18.3.2011 for regularization and the case was processed and ultimately order came to be issued on 24.5.2011. However, the only reason for rejecting the case was that in the meantime, he died on 18.5.2011 and therefore, he could not be subjected to medical report and police verification. This cannot be a valid ground for rejecting the case. It is 11 clearly covered by a judgment of this Court in the case of Smt. Chameli Vs. The State of Haryana and others 1999 (2) R.S.J
688. Therefore, insofar as this appeal is concerned, it stands rejected. Other appeals are allowed and the order of learned Single Judge is set aside. Since we have not gone into the merits of the controversy, it would be open to the learned Single Judge to go into the questions raised in the writ petitions and decide the admissibility of family pensions to these writ petitioners.
In the case of Smt. Harjinder Kaur, it is ordered that till the case is finally decided, she will continue to get the family pension on the strength of the interim order. We request the learned Single Judge to decide the writ petitions expeditiously and preferably within a period of two months. It would be open to the learned Single Judge to consider the plea of interim order in those cases in which it has not been granted so far.
(A.K.SIKRI)
CHIEFJUSTICE
05.2.2013 (RAKESH KUMAR JAIN)
rr JUDGE