Punjab-Haryana High Court
Jaspal Kaur Wife Of Late Shri Balwinder ... vs Union Territory Administration ... on 24 May, 2012
Author: K. Kannan
Bench: K. Kannan
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Writ Petition No.16556 of 2011 (O&M)
Date of decision:24.05.2012
Jaspal Kaur wife of late Shri Balwinder Singh son of Ram
Singh, resident of Village Singhariwala, P.S. Mullanpur, District
SAS Nagar, Mohali.
...Petitioner
versus
Union Territory Administration Chandigarh, through its Home
Secretary, and others.
....Respondents
CORAM: HON'BLE MR. JUSTICE K. KANNAN
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Present: Mr. Suram Singh Rana, Advocate, for the petitioner.
Ms. Lisa Gill, Advocate, for the respondents.
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1. Whether reporters of local papers may be allowed to see the
judgment ? No.
2. To be referred to the reporters or not ? No.
3. Whether the judgment should be reported in the digest ? No.
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K.Kannan, J. (Oral)
1. The petitioner has a grievance that she has not been given family pension for the death of her husband during service. The petitioner also claimed that she is entitled to compassionate appointment. The contention in defence is that the petitioner was not reported to have died and it was simply a case where he did not report for duty since 28.07.2004 and there Civil Writ Petition No.16556 of 2011 (O&M) -2- was nothing on record to show that he had died in order that the claim for compassionate assistance could be made by the petitioner. The claim for family pension was also not tenable, since the petitioner's husband was not a regular employee of the respondent-Corporation.
2. At the previous hearing on 03.04.2012, I had directed the counsel for the respondents to take instructions on the vacancy position against compassionate appointment quota on the basis that a civil death must be presumed to have taken place on the completion of 7 years following his disappearance in 2004. The learned counsel for the respondents states that there are only 40 vacancies in Class-IV posts and 5% of the same being the quota for compensate assistance, the appointment could be made only for filling-up of 2 vacancies. As against this, there are 10 applications lying for consideration under this quota and if the petitioner's claim must be ranked in the order of seniority, she will be placed at 11 and she could not, therefore, merit consideration of compassionate appointment. These informations have not been brought through any records, but I have merely stated the respondents' stand as evident that the petitioner cannot be considered for compassionate appointment against the available vacancies meant for that purpose. Civil Writ Petition No.16556 of 2011 (O&M) -3-
3. As regards the petitioner's claim for family pension, the petitioner's contention is that her husband must be treated as a regular appointee in terms of the State policy spelt out through the circular issued on 11.09.1996 by the Chandigarh Administration, Department of Personnel to all the Heads of the Departments of Chandigarh Administration. It exhorts all officials to prepare the list of employees, who had completed 240 days of continuous service in a year and the persons, who have not been regularized, should be entitled to the minimum scale prescribed for the post with 60% of the DA at Punjab pattern. The letter directs that all the Heads of the Departments should keep in mind the instructions while regularizing the services of daily/casual employees. A subsequent circular directs that the recruitment against Group 'D' posts shall be made from amongst the work-charged daily workers and if the workers possess the required educational qualification prescribed under the relevant recruitment rules which have to be considered for such regularization. There have been also some instructions from the Chandigarh Administration on 24.03.2008 subsequent to the decision of the Hon'ble Supreme Court in the State of Karnataka Versus Uma Devi, I do not feel constrained to refer to them as relevant for this case, since by that time, the Civil Writ Petition No.16556 of 2011 (O&M) -4- petitioner's husband had gone missing and the question of consideration under this instruction may have itself no value.
4. The petitioner's contention is that although her husband was not actually regularized during his service, in a similar situation to a case before this Court in Rakha Singh Versus State of Punjab and others in CWP No.7780 of 2004, decided on 27.01.2005 where a retired employee was claiming a deemed regularization for terminal benefits and pension. The Court held, referring to the State policies that although the actual orders had not been passed, it would still not come in the way being admitted to pension and retiral benefits. The learned counsel for the respondents states that this judgment will not apply, since the Bench was considering a case of an employee in State of Punjab that considered certain instructions which provided for retiral benefits to be considered for a person, who had not been regularized, but who was being paid the same salary as regular employee. I cannot find any difference in the manner which is sought to be urged by the learned counsel for the respondents, for, the Division Bench was specifically dealing with the case where a person had not been regularized, but was claiming for a benefit as though he was a regular employee and seeking for pension. The Court held that being a Civil Writ Petition No.16556 of 2011 (O&M) -5- welfare State, it was expected of the Government that after getting the service from the petitioner's husband for over 23 years, he cannot be left to face financial crisis and the benefit of pension should be extended to him by applying Rule 3.17 of the Punjab Civil Services Rules, Volume-II. As a judgment emanating from the Division Bench, I am bound by the same and hold that the person, who was not made regular during the time of his service, but was entitled for consideration for regularization in terms of the scheme must take the benefit as a regular appointee himself. If the family pension is admissible for the person dependent on an employee in the service of the State, such benefit should be extended by deeming the petitioner's husband as having been regularized in terms of the policy and in terms of the decision by the Division Bench in Rakha Singh's case (supra).
5. The petitioner is entitled to consideration for family pension by treating her husband as having been regularized in service and treating her husband as civilly dead after 28.07.2011, i.e. on his being not known to be alive after a period of 7 years from the date when he went missing, namely, when he did not report for duty on 28.07.2004. The respondents are also further directed to maintain the list of claims of compassionate Civil Writ Petition No.16556 of 2011 (O&M) -6- appointees on the basis of seniority and as and when any vacancy arises within the quota admissible, the petitioner's name shall be considered and the outcome of such consideration shall be informed to the petitioner by a specific communication and decision shall be taken within a period of 12 weeks from the date of such communication.
6. The writ petition is disposed off with the above directions.
(K.KANNAN) JUDGE 24.05.2012 sanjeev