Punjab-Haryana High Court
Krishna Devi vs Haryana State Electricity Board on 21 September, 1994
Equivalent citations: (1995)110PLR181
JUDGMENT A.S. Nehra, J.
1. Krishna Devi wife of late Sunder Dass has filed this petition under Articles 226/227 of the Constitution of India for the issuance of a writ of mandamus or a direction to the respondents to give employment to her son Rajesh Kumar under the Ex-gratia Scheme of the Board. Briefly stated, the facts of the case as mentioned in the writ petition are as follows:-
2. The husband of the petitioner late Sunder Dass joined the service of the Board as a work-charge-T-Mate in the regular scale of the post on 5.1.1973 in the Rural Electrification Division, Karnal. He served the Board with utmost devotion and he expired on 12.3.1984 when he was posted in Operation Sub-Division, Indri under the Executive Engineer, Sub-Urban Division, Karnal. The deceased at the time of his death, had two sons and one daughter. The older son at the time of the his death was about 13 years old and was studying in the school. Immediately after the death of the husband of the petitioner, the petitioner made an application for employment as she was completely rendered helpless on account of the death of her husband. Since her sons and daughter were minor, she made an application to the Executive Engineer for appointing her as a Peon. The application of the petitioner was recommended by the Executive Engineer on 26.3.1984 vide Annexure P-1 for the appointment of the petitioner as Peon but she could not be appointed and she was given to understand that as and when the dependent son of the deceased namely Rajesh Kumar becomes major, he would be given employment. Rajesh Kumar passed his Matriculation examination with 1st Division in June, 1986 and thereafter, the petitioner made an application to the respondent-Board through the Executive Engineer. A copy of this application is attached with the petition as Annexure P-2. In the meantime, Rajesh Kumar continued his education as he was still not 18 years of age. He passed his B.A. in August, 1991. As the petitioner had not heard anything about the application for employment of her son, so she alongwith her son Rajesh Kumar met the Chairman and submitted application of her son Rajesh Kumar alongwith an affidavit on the asking of the Chairman of the Board. The Chairman assured her that the application of her son shall be considered sympathetically. The basic instructions of the respondent-Board regarding providing ex-gratia facilities for the family of the deceased employee are contained in Annexure P-ll and the relevant clause (v) of the said instructions is reproduced below:-
"(v) Employment One or more members of the family of the deceased may be considered for employment in the Board's service, relevant rules being relaxed, if necessary and if feasible."
The instructions regarding employment to the dependent of the deceased work charge/daily wages employees are also annexed as Annexure P-12 with the petition.
2. It has further been stated in the petition that petitioner's husband had served the Board for more than 11 years and Rajesh Kumar who was minor at the time of the death of his father, deserved to be employed under the Ex-gratia Scheme of the Board. It has been further stated in the petition that the Board has been giving employment to the dependents of work-charge employees who had put in even less than 5 years of service and also to the dependants of daily wage workers under its Ex-gratia Scheme and by not allowing employment to Rajesh Kumar dependent son of petitioner's husband, it tantamounts to discriminatory treatment to the petitioner. It has been further stated in the petition that in a similar case, this Court has allowed Civil Writ Petition No. 14638 of 1992- Shingari Devi v. Haryana State Electricity Board, on 1.2.1993.
3. Written statement has been filed on behalf of the respondents by the Executive Engineer, Sub Urban Division No. l, Haryana State Electricity Board, Karnal. In reply to para 3 it has been stated in the written statement that the husband of the petitioner died on 12.3.1984 and at that time, there were no instructions to give Exgratia employment to the dependents of the deceased work-charge/daily wages employees. It was further submitted in the written statement that the instructions regarding employment under Ex-gratia Scheme in case of work-charge/daily wages employees were introduced with effect from 14.8.1985 vide memo. No. 82/83/NGE/G-1281/L-3 dated 14.8.1985 (Annexure P-12) for dependents of those persons who died as a result of fatal accidents in the discharge of their duties after they had rendered five years service in case of work charged employees and ten years service in case of daily wage employees, therefore, the claim of the petitioner was not covered under the Board's instructions. Averment made in para 4 of the petition has been admitted. Averment made in para 6 of the petition to the effect that the petitioner immediately after her husband's death, applied for the post of Peon has been admitted. In para 7, it had been stated that para 7 of the petition is admitted to the extent that the application of the petitioner's son for employment was moved to the Board for sympathetic consideration but the same was not considered in relaxation of the standing instructions of the Board as the petitioner had already one working son. It has been admitted that a similar petition has been allowed by a Division Bench of this Court.
4. Learned counsel for the petitioner has contended that immediately after the death of the husband of the petitioner, the petitioner applied for the post of a peon because her two sons and one daughter were minors at the time of her husband's death. He further submitted that the request of the petitioner was accepted and her case was recommended, for appointment as a Peon, by the Executive Engineer; that since no post was available, she was not given job of Peon; that Rajesh Kumar passed his Matriculation examination in June, 1986 and thereafter the petitioner made an application to the respondent-Board through the Executive Engineer vide Annexure P-2; that Rajesh Kumar did his B.A. in August, 1991; that since the petitioner had not heard anything about her application for employment of her son, she alongwith her son Rajesh Kumar met the Chairman and filed an application dated 21.9.1992 stating that employment could not be offered to her children on 12.3.1984 since they were minors and that as her son had passed B.A., he should be given employment. Learned counsel for the petitioner has further contended that one Shingari Devi whose husband was working as a Work-charge T. Mate, filed an application before the Board to give employment to her son who was dependent of former employee of the Board; that the request of Shingari Devi was declined by the Board on the ground that her case was not covered by the Ex-gratia Scheme; that Shingari Devi aggrieved by the order passed by the Board filed Civil Writ Petition No. 1463& of 1992; that alongwith the replication, she filed a copy of the order dated 19.2.1992 by virtue of which under the Ex-gratia scheme, in relaxation of Standing Rules, one Smt. Savitri Devi had been given appointment. Shingari Devi stated in her replication that one Hawa Singh had put in service for 8 years and 11 months only, i.e., less than the service rendered by her husband as work charge employee and his wife Smt.Savitri Devi had been given employment under the Ex-gratia Scheme by the Board. The writ petition of Shingari Devi was allowed by a Division Bench of this Court on 1.2.1993. The Judgment reads as under:-
"Petitioner Smt. Shingari Devi has approached this Court for directing the Haryana State Electricity Board, to give employment to her son who is dependent of deceased Bhale Ram, a former employee of the respondent Board. On the date of his death, Bhale Ram was serving as work-charge T. Mate. According to the policy instructions of the Board, employment on priority basis under the Ex-gratia scheme should have been provided to the petitioner's son, but the respondent-Board has declined the request of the petitioner on the ground that the case of the petitioner was not covered by the Ex-gratia scheme. However, the petitioner in her replication has placed on record a copy of the order dated 19th February, 1992 (Memo.No. 106/NGE/P-3083), copy Armexure P-ll with the replication, by virtue of which under the Ex-gratia scheme, in relaxation of Standing Rules, one Smt. Savitri Devi had been given appointment. The relevant portion of the aforesaid order is reproduced below: -
"Subject: Order of appointment to Smt. Savitri Devi W/o late Shri Hawa Singh, W/C Chowkidar, under Ex-Gratia Scheme.
The appointment of Smt. Savitri Devi W/O Late Shri Hawa Singh W/C Chowkidar for the post of regular peon (Field) under Ex-Gratia Scheme in relaxation of standing Rules has been approved. Accordingly, she may be given offer of appointment against the vacancy of Peon existing under the Administrative control of your office after observing usual formalities. This issues with the approval of Chairman, HSEB.
Sd/-
Dy. Secretary Establishment, for Addl. Secretary, HSEB, Panchkula."
After hearing the- learned counsel for the parties and having gone through the record, we are satisfied that the case of the petitioner is squarely covered by the policy decision of the Haryana State Electricity Board. Accordingly, we allow this petition and direct the Haryana State Electricity Board to provide employment to the petitioner's son on priority basis immediately. There shall be no order as to costs."
5. The learned counsel for the petitioner has further contended that the facts of the case of Civil Writ Petition No. 14638 of 1992 filed by Shingari Devi are similar to the facts of the case in hand. He submitted that Bhale Ram husband of Shingari Devi expired on 18.9.1977 when he was serving in Sub Urban Sub Division, Haryana State Electricity Board, Panipat at a that time, he had got 4 children and his eldest son Karamvir Singh was minor and was studying; that Karamvir Singh passed his matriculation examination; that Shingari Devi made a representation on 24.3.1992 to the Chairman of the Board vide Annexure P-2 stating that as her son has passed matriculation, her son may be employed in place of her husband.
6. Learned counsel for the respondents has contended that the consideration for employment on compassionate ground is not a vested right which can be-exercised at any time in future and therefore, petitioner's son is not entitled to be appointed on compassionate grounds after a lapse of time. In support of his argument, he has relied upon a judgment of the Apex Court reported as Umesh Kumar Nagpal v. State of Haryana and Ors. - 1994(3) R.SJ. 317. It has been held by the Apex Court that the compassionate employment cannot be granted after a lapse of a reasonable period which must be specified in the rules; that consideration for such employment is not a vested right why can be exercised at any time in future and that the object being to enable the family to get over the financial crisis which it faces at the time of the death of the sole bread winner, the compassionate employment cannot be claimed and offered whatever the lapse of time and after the crisis is over.
7. The learned counsel for the petitioner has contended that Umesh Kumar Nagpal v. State of Haryana (supra) is not applicable to the facts of the present case. He further submitted that petitioner's husband expired on 12.3.1984; that immediately after the death of her husband Krishna Devi started pursuing her case for giving employment to her under the Ex-gratia Scheme; that she applied for the post of Peon and her application for the appointment of Peon was recommended by the Executive Engineer on 26.3.1984 vide Annexure P-l; that she could not be appointed because the post was not available and she was given to understand that as and when the dependent son of the deceased, namely, Rajesh Kumar becomes major, he would be given employment. He further submitted that the petitioner submitted application in 1986 after her son Rajesh Kumar had passed his matriculation examination in First Division; that Rajesh Kumar continued his studies and he passed B.A. in August, 1991; that Rajesh Kumar could not be given employment when he passed his matriculation examination as he was minor that time; that petitioner has been pursuing her case vigorously and that she met the Chairman of the Board and the Chairman assured her that the application of her son would be considered sympathetically. In support of his argument, he has relied upon a D.B. Judgment of this Court reported as Rampat v. Haryana State Electricity Board and Anr., 1994(1) R.S.J. 96 which is fully applicable to the facts of the present case.
8. Learned counsel for the petitioner has further contended that in cast the petitioner's son who has passed his B.A. examination is not given employment in the Board, then injustice will be done to the petitioner and petitioner will be discriminated because in the similar circumstances Smt. Savitri Devi has been given employment by the Board by relaxing the instructions.
9. After hearing the learned counsel for the parties, we find force in the contentions raised on behalf of the petitioner. Hawa Singh died in 1978 after he had put in service for 3 years and 11 months. His wife Smt. Savitri Devi was given appointment by the Board on 19.2.1992. The writ petition filed by Shingari Devi was allowed by a Division Bench of this Court. Husband of Smt. Shingari Devi died on 18.9.1977 and she filed an application to the Chairman of the Board on 24.3.1992 stating that at the time of the death of her husband, her son was minor and was studying and therefore, he was unable to do service. She further stated in her application to the Chairman that her son had passed his matriculation, therefore, her son may be given employment in place of her husband. The writ petition filed by Smt. Shingari Devi was allowed by this Court on 1.2.1993. There is no dispute with the proposition of law laid down by the Apex Court that the employment on companionate grounds cannot be granted as a matter of right after lapse of time. Savitri Devi wife of Hawa Singh was given employment by the Board by relaxing the rules under Ex. Gratia Scheme. Civil Writ Petition filed by Smt. Shingari Devi was allowed by this Court on 1.2.1993. Therefore, petitioner's son who has passed his B.A. examination in August, 1990 is entitled to be employed by the Board.
In view of the above discussion, the action of the Board in not giving employment to the petitioner's son on the basis of the policy instructions is palpably arbitrary and cannot be sustained. Resultantly, we allow this writ petition and direct the respondents to give employment to the petitioner's son as per his entitlement forthwith.