Raj Kumar v. Dakshin Haryana Vidyut Parsaran Nigam

After hearing learned counsel for the parties, this application is allowed. Order dated 27.9.2012 is recalled and the writ petition is restored to its original number. CWP No.17714 of 2011 Father of the petitioner, who was working with the respondent- Department as Lineman, died on 2.7.2002 during his service. After his death, mother of the petitioner moved an application on 16.8.2002 seeking employment for the petitioner on compassionate ground as per the Ex- Gratia Scheme of 1995. The mother of the petitioner also filled in application form dated 21.8.2002 (Annexure P-4) regarding the appointment of the petitioner on compassionate ground as per the said Scheme. CWP No.17714 of 2011 2 It is the further case of the petitioner that after filling up the said application form, he as well as his mother felt secured as they were assured by the respondent-Authorities for giving employment to the petitioner as per his seniority. However, mother of the petitioner was intimated vide letter dated 29.7.2011 stating that the petitioner cannot be considered for the compassionate appointment due to non-availability of post and the petitioner was given option for getting financial assistance under the Policy of 2003/2005. However, the petitioner vide Annexure P-6, declined to opt for financial assistance and insisted for grant of appointment on the compassionate basis. It is the case of the petitioner that despite the fact that he is entitled to the employment under the existing Policy at the time of death of his father on 2.7.2002, the same has not been provided to him whereas many such persons were given employment under the then prevalent policy. In the reply filed on behalf of the respondents, the following defence has been taken: “That the contents of paras-5 to 8 of the writ petition are wrong and hence vehemently denied. In reply thereto it is submitted that the name of the petitioner was entered in the seniority list the grant compassionate appointment.The Superintending Engineer/Admn., DHBVNL, Hisar vide office letter/memo dated

30.5.2003 duly informed the mother of the petitioner i.e. Smt. Kamlesh Rani widow of Chandu Ram (Lineman) that due to non- CWP No.17714 of 2011 3 availability of sufficient posts, the employment cases are lying pending for the last few years and may take another few years say 4 to 5 years to finalize the pending cases as the posts are being reduced due to re-structuring in the Nigam as such the chances of employment under ex-gratia scheme are very bleak and in case they are interested to avail the facility of ex-gratia compassionate assistance amounting to Rs.2.5 lacs they may signify their acceptance/option. The true photocopy of the office letter/memo dated

30.5.2003 is attached herewith as Annexure P- 5/1. Thereafter vide office letter dated 30.5.2005, Superintending Engineer/Admn., DHBVNL, Hisar again wrote an official letter/memo dated

30.5.2005 to give their option for Rs.2.5 lacs as the compassionate appointment was not feasible/possible. The true photocopy of the office memo/letter dated 30.5.2005 is attached herewith as Annexure R-5/2. Thereafter, the Executive Engineer, Operation Division, Tohana again requested Smt.Kamlesh Rani vide his office letter dated 22.10.2008 to give her option for availing the facility of compassionate financial assistance amounting to Rs.2.5 lacs instead of employment as admissible under the Rules. The similar request was also made by Executive Engineer, CWP No.17714 of 2011 4 Operation Division, Tohana vide office memo No.883, dated 27.1.2009. The true photocopies of the office letter dated 22.10.2008 and

27.1.2009 are attached herewith as Annexure R- 5/3 and R-5/4 respectively. Thus, the petitioner was repeatedly requested for giving her option for availing the compassionate assistance of Rs.2.5 lacs and it is factually incorrect that vide office letter dated 29.7.2011 (annexure P-5) the petitioner was intimated for the first time regarding the non-availability of post. The petitioner has concealed the above mentioned facts, correspondence made by the respondent-Nigam continuously. It is pertinent to mention here that as per the list of pending cases who applied for appointment under ex-gratia scheme but could not get being not covered under policy of Govt./Nigam in DHBVN as on 31.7.2006, the name of the petitioner was entered at Sr. No.115. The true photocopy of the list of pending cases as on

31.7.2006 in DHBVN is attached herewith as Annexure R-5/5. As a matter of record, even after 29.7.2011, i.e. On 13.9.2011, the office of Executive Engineer, Operation Division, Tohana vide its office memo No.9847, dated 13.9.2011 duly requested Smt. Kamlesh Kumari widow of Late Shri Chandu Ram, LM, mother of the CWP No.17714 of 2011 5 petitioner to exercise her option for availing the facility of compassionate financial assistance amounting to Rs.2.5 lacs as per the latest instructions. The true photocopy of the office letter dated 13.9.2011 is attached herewith as Annexure R-5/6. Thus, the petitioner is not entitled for compassionate appointment and in the petitioner fulfills the requisite departmental formalities, the answering respondents are still willing to pay an amount of Rs.2.5 lacs to the petitioner under the Haryana Compassionate Assistance to the Dependents of Deceased Govt. Employees Rules, 2003.” At this stage, a judgment of the Full Bench of this Court reported as “Krishna Kumari versus State of Haryana (P&H) 2012(3) PLR 383 be also noticed: “In view of this clear enunciation of law we cannot but come to the conclusion that rules applicable on the date of death/incapacitation of an employee need to be followed. Needless to observe it is upto the authority to consider the application without inordinate delay and take a decision thereon. In the eventuality application remains pending for considerable period and some other policy comes into operation, no fault can be found on part of the employee. This appears to be the principle recognized by the CWP No.17714 of 2011 6 apex court in its recent judgment in Bhawani Prasad Sonkar's case. As held therein, application for compassionate employment has to be preferred without undue delay and has to be considered within a reasonable period of time as compassionate appointment is to meet the sudden crisis on account of death or invalidation of the bread winner of the family. We, thus, come to the conclusion that in case an application is made by the dependent belatedly or is considered after inordinate delay, requirement of meeting the immediate crisis becomes redundant. Since the objective of the policy is to rescue the family from sudden event plunging it into penury, consideration of application after number of years would be beyond the principles accepts by the apex court in its various decisions. In such circumstances, it would be difficult to accept the exception to the general rule of employment as envisaged by Articles 14 and 16 of the Constitution of India. We answer the reference accordingly.” Since the policy prevalent at the time of death of the petitioner has already come to an end and has been substituted by a fresh policy of 2006 and according to the policy prevalent at the time of death which only provides financial assistance to the extent of Rs.2,50,000/-, this Court is of the view that the respondents cannot be directed to give employment to the CWP No.17714 of 2011 7 petitioner on compassionate basis. In view of the aforesaid, I find no merit in this petition. Dismissed. October 05, 2012 (RAKESH KUMAR GARG) JUDGE