Deepak v. State of Punjab & Anr.

HON’BLE MR.JUSTICE SURYA KANT

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? **** **** Present: Mr. D.K. Kaushal, Advocate for the petitioners Mr. B.S. Chahal, DAG Punjab ***** SURYA KANT J. (ORAL) CWP No.8155 of 2009.doc - 2 – (1). This order shall dispose of CWPs No.8155, 8156 & 8158 of 2009 as common questions of law and facts are involved in these cases. For brevity, the facts are being extracted from CWP No.8155 of

2009. (2). The petitioner seeks quashing of a notice dated

21.05.2009 (Annexure P1) issued by the Deputy Commissioner, Faridkot – the respondent No.2, asking him to show cause as to why his appointment on compassionate grounds, be not cancelled in the light of the Punjab Civil Services (General & Common Conditions of Service) Rules, 2009 notified on 10.02.2009. (3). The controversy involved is in a short compass. The father of the petitioner late Shri Karnail Singh was working as a Junior Assistant in the office of the Deputy Commissioner, Faridkot when he unfortunately passed away while in service on

24.07.2008. The mother of the petitioner moved an application on 11.08.2008 (Annexure P3) for appointment of her son, namely, the petitioner as a Clerk under the ex gratia policy and on compassionate grounds. He was finally appointed CWP No.8155 of 2009.doc - 3 – as a Clerk vide appointment letter dated

27.02.2009 (Annexure P6). (4). The appointment to the post of Clerk is governed by the Punjab Civil Services (General & Common Conditions of Service) Rules, 1994 (in short, the 1994 Rules). Rule 15 of these services lays down the qualification for appointment to the post of Clerk and prior to its amendment on 10th February, 2009, the aforesaid Rule used to read as follows:- “15. Minimum educational and other qualifications – (1) No person shall be appointed by direct recruitment to the post of Clerk under the Punjab Government unless he is Matriculate in Second Division or has passed Senior Secondary Part-II Examination from a recognized university or institution. (2) The person so appointed as Clerk in terms of sub-rule (1) shall have to qualify a test in Punjabi typewriting to be conducted by the Board or by the appointing authority at the speed of thirty words per minute within a period of one year from the date of his appointment. (3) In case, the person fails to qualify the said test within the period specified in sub-rule (2) shall be allowed annual increment only with effect from the date he qualifies such test, but he shall not be paid any arrears for the period, for which he could not qualify the said test: CWP No.8155 of 2009.doc - 4 – Provided that where appointment of Group ‘C’ non-technical post is offered to a War Hero, who has been discharged from defence services or paramilitary forces on account of disability suffered by him or his widow or dependent member of his family, under the instructions issued in his behalf by the Government, the educational qualifications to be possessed by such person shall be Matriculate from a recognized university or institution. Such person will, however, be not required to qualify the test in Punjabi typewriting as specified in sub-rule (2).” (5). There is indeed no dispute that the above-stated rule was amended on 10th February, 2009 prescribing the following qualification for appointment to the post of Clerk:- “15. Minimum educational and other qualifications – (i) No person shall be appointed by direct recruitment to the post of Clerk under the Punjab Government unless he possesses the Bachelor’s Degree from a recognized University or institution; and (ii) Possesses at least one hundred and twenty hours course with hands on experience in the use of Personal Computer or Information Technology in Office Productivity applications or Desktop Publishing applications from a Government recognized institution or a reputed institution, which is ISO 9001, certified. OR Possesses a Computer Information Technology course equivalent to ‘O’ level certificate of Department of Electronics Accreditation of Computer Courses (DOEACC) of Government of India.” CWP No.8155 of 2009.doc - 5 – (6). The impugned show cause notice has now been issued to the petitioner, inter alia, alleging that since he does not possess the qualification as prescribed under the amended Rule 15(ii) above, namely, lack of at least one hundred and twenty hours course with hands on experience in the use of Personal Computer or Information Technology in Office Productivity applications or Desktop Publishing applications from a Government recognized institution or a reputed institution, he was, therefore, ineligible for appointment as Clerk on 27.02.2009 i.e. after the amended rules had come into force. (7). Aggrieved the petitioner has approached this Court. (8). The solitary question that arises for consideration is as to what would be the relevant date for determining the petitioner’s eligibility for appointment as Clerk? Suffice it to observe that the petitioner’s entitlement for such appointment under the ex gratia policy is not in dispute. The petitioner’s case is that his eligibility for appointment under the ex gratia scheme has to be determined with reference to the date when CWP No.8155 of 2009.doc - 6 – occasion to seek such appointment arose, namely, the unfortunate demise of his father on

24.07.2008, while the respondents suggest that eligibility needs to be seen on the date of appointment. (9). The issue is no longer res integra. A Division Bench of this Court in Amarjit Singh vs. State of Haryana and others, 2007(1)SLR 251 considered such an issue and ruled that the relevant date for the purposes of deciding the eligibility would be the date of death of the deceased employee. The Bench observed as follows:- “3. After hearing learned counsel for the parties, we are of the considered view that the relevant date for the purposes of deciding the eligibility would be the date of death of the deceased-employee, which has resulted into financial insurgency to his family. It is well settled that in such like cases, rules prevalent on that date are required to be applied and the case of the petitioner should have been considered in the light of those rules. It is admitted position that under Section 3(e), the expression dependent was defined. The relevant rule was amended on 17.12.2004(Annexure P-4) and the age of 25 years provided in Rule 3(e) was raised to 30 years. After the amendment, Rule 3(e) would read as under:- “3(e) “dependent” means-- (i) spouse of the deceased Government employee or missing Government employee; CWP No.8155 of 2009.doc - 7 – (ii) son (including adopted son)till he attains the age of 30 years subject to the proof of adoption as envisaged in the Hindu Adoption and Maintenance Act,1956.(78 of 1956) (iii) unmarried daughter(including adopted daughter) till she attains the age of 30 years subject to the proof of adoptions as envisaged in the Hindu Adoption and Maintenance Act,1956 (78 of 1956); (iv) the person who was wholly dependent at the time of his/her death.

4. It is thus evident that the petitioner on the date of death of his father was less then 30 years and was eligible to be considered for appointment. The issue has come up for consideration in C.W.P.No.749 of 2005 decided on 5.7.2005 and the writ petition was allowed. Therefore, we find that the impugned order dated

29.3.2006(Annexure P-5) is liable to be quashed as the case of the petitioner could not have been rejected on the ground that he had crossed the age of 30 years.” (10). Otherwise also, neither the date of eligibility can be fluctuating nor can be left at the whims and fancies of the authorities. In such like cases where a family has lost its sole bread-earner, the endeavour of the State should be to minimize the hardship and provide the alternative employment to the eligible family member at the earliest. The petitioner lost his father in July, 2008. His mother applied for employment of her son – the petitioner, within a period of less than one month. The delay, if any, completion of the ministerial exercise is attributable to the respondents and not CWP No.8155 of 2009.doc - 8 – to the petitioner. The Rules were amended on 10th February, 2009 i.e. much after the death of the petitioner’s father. Can the respondents say that had the petitioner been appointed on 9th February, 2009, he would have been ineligible? The answer has to be in the negative. If that is so, the petitioner cannot be held to be ineligible as the amended qualification has been introduced prospectively much after the death of the petitioner’s father. (11). For the reasons afore-stated, the writ petition is allowed and the impugned notice dated

21.05.2009 (Annexure P1) is hereby quashed. (12). Ordered accordingly.

28.01.2010 vishal shonkar (SURYA KANT) JUDGE