Punjab-Haryana High Court
Malkiat Kaur vs State Of Punjab & Ors on 1 August, 2012
Author: Surya Kant
Bench: Surya Kant
HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
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LPA No.2240 of 2011 (O&M)
Date of Decision: 01.08.2012
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Malkiat Kaur . . . Appellant
vs.
State of Punjab & Ors. .... Respondents
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CORAM : HON'BLE MR.JUSTICE SURYA KANT
HON'BLE MR. JUSTICE R.P. NAGRATH
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1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
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Present: Mr. Vikas Singh, Advocate for the appellant
Ms. Monica Chhibber Sharma, DAG Punjab
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SURYA KANT J. (Oral)
(1) Notice of motion. Ms. Monica Chhibber Sharma, learned DAG Punjab accepts notice on behalf of the respondents.
(2) The short issue involved in this appeal is whether the appellant is entitled to appointment on compassionate grounds from a retrospective date in terms of the Government policy dated 24.04.1986 (Annexure P5) read with Circular dated 25.08.2000 (Annexure P7)? (3) The facts may be noticed briefly. The husband of the appellant late Karamjit Singh was killed by the terrorists in village Ghaniwal in the year 1992. The appellant's report to this effect was duly recorded in PS Nabha on 20.04.1992. The appellant being a terrorist-victim was entitled to certain benefits granted by the State of Punjab to various categories of victims under The Financial Assistance to Victims of LPA No.2240 of 2011.doc -2- Riot/Terrorist Rules, 1985 as amended in the year 1990 followed by policy decision dated 24.04.1986 (Annexure P5) and the Circular dated 25.08.2000 (Annexure P7). While the above-mentioned Rules provides for financial assistance to the widows of victims of anti-Sikh riots/terrorist activities, the policy Circular dated 24.04.1986 (Annexure P5) stipulates employment in Government service to such victims including "member of family of a person killed as a result of terrorist action in the State....".
(4) The case of the appellant is that the financial assistance of Rs.1000/- which was later on increased to Rs.1500/- per month was not granted to her, therefore, she approached this Court in CWP No.18041 of 1994 and pursuant to the directions issued therein followed by a legal notice served on her behalf that ex gratia of Rs.1 lac was sanctioned to the appellant in June, 1996. The appellant thereafter raised her claim for employment in terms of the above-mentioned Government policy (Annexure P5) but the same was denied to her on the plea that the legal heirs of the deceased-victim were required to apply for employment within six months from the date of death. It was maintained that since the appellant did not apply for employment even within the extended period of two years that she was not entitled to seek such relief. The afore-stated plea has been duly taken by the respondents in their written statement dated 16.03.1998 to the writ petition filed by the appellant in the year 1997.
LPA No.2240 of 2011.doc -3-(5) There was a change of events during the pendency of the writ petition. The respondents re-considered the matter at their own and have appointed the appellant on compassionate grounds w.e.f. 20.02.2006. The appellant stalled her claim for retrospective appointment but the learned Single Judge has turned down her prayer on the ground that there cannot be a fictitious date by notional extension in the matter of appointment on compassionate grounds. The aggrieved appellant has approached this Court.
(6) For considering the appellant's claim for retrospective appointment, it would be apposite to take notice of the policy dated 24.04.1986 which, inter alia, provides rehabilitation to various categories of victims including member of family of a person killed as a result of terrorist action in the State. The policy stipulates that the widows seeking employment were entitled to relaxation of age limit upto 45 years and it was not necessary to assess their suitability from the agencies like Subordinate Services Selection Board or the Departmental Selection Committee. The afore-stated policy was in vogue when the appellant lost her husband at the hands of terrorists.
(7) According to the respondents, the appellant was not entitled to seek any benefit under the aforesaid policy as she failed to apply for employment on compassionate grounds within six months from the date of the death of her husband. She is said to have not applied even within the extended period of two years. Assuming the said plea to be correct though denied and controverted by the appellant in her LPA No.2240 of 2011.doc -4- replication, we find another policy circular dated 25.08.2000 (Annexure P7) on record which expressly provides that those family members of the deceased persons killed by terrorists who could not apply within the stipulated period as per the earlier policy "...should be given one last chance howsoever late them may have been...". The Circular further provides that "they may apply for employment on compassionate basis within 6 months of the issuance of these instructions failing which their applications shall not be considered...". (8) There is indeed no denial in the written statement that much before issuance of the afore-stated Circular, the appellant had actually applied. Her application was turned down only because it was not within the extended period of two years from the date the earlier policy dated 24.04.1986 was issued. It was on consideration of the said application only that the appellant has now been offered appointment w.e.f. 20.02.2006. In this factual backdrop and while considering the appellant's claim for retrospective appointment it becomes essential to address the following two questions:-
(1) Whether the appellant is entitled for employment from an assumed due date as a matter of right?
(2) If so, what should be the date to be assigned to the appellant?
(9)We have heard learned counsel for the parties and gone through the record.LPA No.2240 of 2011.doc -5-
(10)Adverting to the first issue, there is no gainsaying that appointment on compassionate or equitable considerations cannot be claimed as a matter of right unless the State, being the champion of social cause(s), comes forward with a Policy conferring such rights subject to fulfillment of the eligibility conditions laid down in the Policy itself. (11)While the mere death of the appellant's husband by terrorists in the instant case, does not ipso facto entitle her to seek employment save the Policy dated 24.04.1986 issued on the subject. The aforesaid Policy explicitly includes members of family of a person killed as a result of terrorist action in the State, namely, the eligibility which the appellant undoubtedly qualifies. She being widow of the terrorist victim was also entitled to relaxation in age limit. It is not the case of the respondents that there was any other disqualification attached to the appellant to deny the benefit(s) flowing from the Policy dated 24.04.1986. Once the State takes a conscious Policy decision, it is imperative upon its authorities to give effect to such Policy uniformly to ensure that the benefits flowing therefrom must reach to all those falling within the precincts of such Policy. The benefit cannot be restricted or disrupted except on the grounds stipulated in the Policy itself. Any other construction if given to the policy decision to confer benefits on pick and choose basis, would not stand to the touchstone of Articles 14 or 16 of the Constitution of India.
(12)Our conclusion that the policy decision dated 24.04.1986 was meant to provide employment to the family members of victims like deceased LPA No.2240 of 2011.doc -6- husband of the appellant, is further fortified by another policy circular dated 08.08.1996 (Annexure R1) which too specifies that compassionate appointments of dependent members are to be made within the period of six months from the date of death of the Government employee/bread-winner. (emphasis applied) (13)In the absence of any plea taken by the respondents that the appellant's claim was not covered under the above-mentioned policy/circular (except that she allegedly did not apply within the stipulated period) we are of the view that there accrued a right in favour of the appellant to seek appointment on compassionate grounds under the above-stated policy decision(s).
(14)The determination of second issue is not an impossible task. The learned Single Judge appears to be right to say that ordinarily fictitious date cannot be assigned in the matter of appointment on compassionate grounds. However, the Court must keep two important factors in mind while determining the appellant's claim. Firstly, if the appellant is not given retrospective appointment she would be deprived of the retiral benefits for want of minimum 10 years of service which is a condition precedent prescribed under the Punjab Civil Service Rules for the grant of pension and other retiral benefits. Secondly, there is a drastic amendment in the pension/Provident Fund scheme introduced in the State of Punjab w.e.f. 01.01.2004 in respect of employees who joined the Government service on or after 01.01.2004.
LPA No.2240 of 2011.doc -7-(15)It cannot be overlooked that the appellant had approached this Court in the year 1997 and the respondents at their own decided to appoint her on 20.02.2006 strengthening the appellant's claim being covered under the Policy. All the policy circulars placed on record except the victims to apply within six months. The competent authority, in its wisdom must have thought that six months' period would be sufficient to establish informed knowledge of the Policy and enable the family to decide as to for whom such benefit is to be sought. We fail to understand as to why the Authorities obligated to take appropriate decision under the policy(ies) be allowed to take more than six months' time in deciding whether or not the applicant (appellant) is entitled to the benefit of employment under the Policy? In other words, the principle of reasonableness of six months' period deserves to be applied against State agencies as well. In the instant case, the respondents have taken more than nine years for accepting the appellant's claim, even after filing of the writ petition. If that is so, should the appellant be penalized for the unexplained and unwarranted delay for no fault on her part?
(16)The belated employment given in the year 2006 ought to have been offered to the appellant in the year 1997 when she approached this Court. Her appointment on 20.02.2006 amounts to acceptance of the appellant's legitimate claim raised before this Court on 14.12.1997 i.e. the date when she approached this Court. The appointment of the LPA No.2240 of 2011.doc -8- appellant, therefore, must relate back at least to the date of filing writ petition in this Court.
(17)The assignment of such a fictional date effectively redresses the appellant's predicament regarding minimum length of service needed to claim 'pension' and other retiral benefits and will also enable her to seek benefit of the Pension Scheme as it was applicable before 31.12.2003.
(18)The ancillary question, namely, should the appellant on the grant of ante-dated appointment from December, 1997, be also held entitled to consequential benefits including arrears of pay? - would no more detain us. It appears in accordance with the principles of fair and just play to hold that the appellant shall be entitled to ante-dated appointment on notional basis only. It necessarily means that the appellant shall not be entitled to any arrears of pay though her pay shall be refixed notionally on the premise as if she was appointed on 01.12.1997. The appellant, however, shall not be entitled to arrears of salary/enhanced salary till 31.07.2012. In other words, the revised- enhanced salary shall be payable to her from August, 2012 only. However, rest of the service benefits including seniority and notional pay fixation shall be granted to her.
(19)For the reasons stated above, the appeal is allowed in part and the order of the learned Single Judge under appeal is modified to the extent above.
(20)The writ petition and the appeal are accordingly allowed in the above terms.
LPA No.2240 of 2011.doc -9-(21)Dasti.
(SURYA KANT) Judge 01.08.2012 vishal shonkar (R.P. NAGRATH) Judge