AT CHANDIGARH RSA 4795 of 2010(O&M) Date of Decision : November 08 v. Jasbir Singh & Ors.

decreed by the trial Court and the defendants directed to appoint him against a post, to which he was eligible on the basis of his qualification. Aggrieved of the same, the appellant, who was one of the defendants in the suit, filed an appeal which was dismissed by the first appellate Court. Hence, the present second appeal filed under Section 100 of the Code of Civil Procedure. RSA 4795 of 2010(O&M) -2- The case set up by plaintiff-Jasbir Singh was that his father Darshan Singh was posted as a Secretary under the defendants. While in service, he died on 8.10.1993 in a vehicular accident. At that time, the plaintiff was minor and his mother Jagir Kaur submitted an application dated 26.10.1993 to the defendant-appellant for granting compassionate appointment to him upon his attaining majority. Under the policy of the State Government regarding ex-gratia appointment, the plaintiff was eligible for being appointed to the post, one step below the post held by his father Darshan Singh. The plaintiff and his family members had no source of income and they were entirely dependent upon his father Darshan Singh. Therefore, upon attaining majority, the plaintiff was entitled to be appointed on compassionate ground. Despite the fact that the application for compassionate appointment had been moved within three years of the death of Darshan Singh, the defendants did not pay any heed to the same. Even the monetary benefits arising out of the death of Darshan Singh were not released in favour of the plaintiff and his family members. Ultimately on 23.1.2004, the plaintiff moved an application to respondent No.3, who was also the defendant in the suit, seeking his appointment but no action was taken on his application. The plaintiff even served notice under Section 124 of the Haryana Co-operative Societies Act, 1984 but still no action was taken. Hence, the suit. RSA 4795 of 2010(O&M) -3- The suit of the plaintiff was opposed by the present appellant by filing the written statement and raising preliminary objections regarding maintainability, cause of action, locus standi, limitation, concealment of facts and suit being false and frivolous. On merits, it was admitted that Darshan Singh was employed as Secretary and at the time of his death, he was in service. It was also admitted that application dated 26.10.1993 was moved by the widow of Darshan Singh for reserving one post on compassionate grounds. However, it was pleaded that Darshan Singh, while posted as Secretary of the Nillianwali Co-operative Credit and Service Society Ltd., had committed embezzlement of a sum of Rs. 99,364.60 Ps. which fact came to light after his death. The application moved by the widow of Darshan Singh was put in the meeting of the Board of Directors of the appellant on 8.8.1994 and the matter postponed till the recovery of the embezzled amount. Intimation in this regard was given to the legal heirs of deceased Darshan Singh but they did not clear the embezzled amount which was still due from them in the records of the appellant. No fresh application within three years' period was ever filed, thereafter, by any of the legal heirs of the deceased-employee and, therefore, the plaintiff was not entitled to claim appointment on compassionate basis. Both the Courts below have held that the plaintiff was entitled to be appointed against the post on compassionate basis RSA 4795 of 2010(O&M) -4- as per the policy of the State Government which was in operation in the year 1993 when the father of the plaintiff had died. Accordingly, directions stand issued to the defendants to appoint the plaintiff on the appropriate post to which he is eligible on the basis of his qualifications. Having heard counsel for the parties and perusing the record which stands summoned, this Court finds that the embezzlement proceedings were initiated by the defendants after the death of Darshan Singh and, therefore, on that ground, the case of the plaintiff for compassionate appointment could not have been rejected. At the most, the amount, alleged to have been embezzled, could be recovered from the salary of Darshan Singh but merely because the plaintiff and his family members had not deposited the embezzled amount, is no ground for holding him ineligible for entitlement of service on compassionate grounds. Further, the mother of the plaintiff had moved necessary application to the defendants soon after the death of Darshan Singh. Within six months of the death of Darshan Singh, she also died. Despite the fact that requisite application had been submitted by the mother of the plaintiff soon after the death of her husband-Darshan Singh with a prayer that the plaintiff be granted appointment on compassionate basis upon his attaining majority yet for the first time, letter Ex. P7 dated 26.8.2004 was issued in the name of the mother of the plaintiff intimating her that RSA 4795 of 2010(O&M) -5- consideration of her application for appointment compassionate basis stood deferred till the recovery of the embezzled loan. Within a a year, thereafter, the plaintiff filed the suit on 28.2.2005 and, therefore, it cannot be said that the suit was time barred. Further, DW1 Subhash Garg, Senior Accountant, Co-operative Bank, Main Branch, Sirsa admitted during his cross-examination that as per his information, there was neither any rule nor instructions issued by the Department for denying appointment on compassionate basis to the dependent of the deceased-employee in the event of his committing embezzlement and dying during service. He also feigned ignorance about any recovery proceedings having been initiated for recovering the said amount from the property of late Darshan Singh. However, he admitted it to be correct that in the year 2003, the State Government issued policy under which the heirs of the deceased-employee could either opt for appointment or collect a lump-sum amount of Rs. 2,50,000/- on compassionate basis. He further admitted it to be correct that no financial assistance had been granted to the heirs of the deceased- employee. The subsequent policy of the State Government so as to grant only financial benefits cannot be, thus, made applicable to the case of the plaintiff. Under the policy prevalent at the relevant time, appointment on compassionate basis could be given to those legal heirs of the deceased-employee, who were RSA 4795 of 2010(O&M) -6- having necessary qualification and under these circumstances, no fault can be found with the judgments passed by the Courts below whereby the plaintiff has been held entitled to be appointed to a post on compassionate basis to which he was eligible on the basis of his qualification. Resultantly, the defendants have been rightly directed to appoint the plaintiff. On perusal of the judgments passed by the Courts below, this Court finds that the entire evidence available on the record stands analyzed and appreciated threadbare so as to hold the plaintiff eligible to the relief of declaration with consequential relief of mandatory injunction. The concurrent findings of facts are not open to challenge and, that too, in a second appeal, which is maintainable only if some substantial question of law is involved and not otherwise. Having heard leaned counsel for the parties, the Court finds that the various substantial questions of law formulated by the counsel for the appellant do not arise for determination. The appeal is without any merit and, therefore, dismissed. No costs. November 08, 2012 ( T.P.S. MANN ) JUDGE RSA 4795 of 2010(O&M) -7- ajay-1