High Court of Punjab and Haryana, Chandigarh
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Kumari Bandana Sharma v. State of Haryana & Ors - CWP-13465-2005  RD-P&H 2534 (24 April 2006)
C.W.P. No. 13465 of 2005
Date of Decision: May 1, 2006
Kumari Bandana Sharma
State of Haryana and others
CORAM: HON'BLE MR. JUSTICE M.M. KUMAR
HON'BLE MR. JUSTICE M.M.S. BEDI
Present:- Mr. R.K. Malik, Advocate,
for the petitioner.
Mr. Harish Rathee, Sr. DAG, Haryana,
for the respondents.
M.M. KUMAR, J. (Oral)
The unfortunate petitioner had lost her father on October 21, 1988 when she was about 8 years old having been born on July 9,
1980. However, her misfortune further multiplied when she lost her mother on September 24, 1993. It is thus, evident that she was rendered orphan having lost both her parents. On July 28, 2004, she applied for compassionate appointment under the Haryana Compassionate Assistance to the Dependants of the Deceased Government Employees Rules, 2003, (for brevity, `the Rules') as she had become eligible for appointment as Mistress on acquiring the qualification of B.A. B.Ed. She represented to the respondents when C.W.P. No. 13465 of 2005
her case was not considered. The petitioner pointed out in her representation all the details of the death of her parents and the fact that she has a younger sister who is also required to be looked after.
It has been revealed that there is no source of income with them to sustain the soul and body together. It is admitted position that the father of the petitioner was a doctor and was in service in the Health Department when he died in harness on October 21, 1988. It is also conceded position that the mother of the petitioner Smt. Raj Bala was Lecturer Political Science when she died in harness on September 24,
1993. The case of the petitioner has been rejected by the respondents on January 25, 2005 (P-2), on the preposterous ground that she was required to apply for employment under Ex-gratia Scheme within three years of the death of her mother. It has been observed that the petitioner was not eligible for employment as she did not acquire the eligibility for employment within three years of the death of her mother Smt. Raj Bala. The operative part of the order passed by Director, Secondary Education, Haryana (respondent No.2) reads as under:-
" Smt. Raj Bala, Lect. Pol. Sc. G.G.S.S.S. Madina (Rohtak) died while in service on 24.9.1993. Her daughter Bandana Sharma herself applied for employment on 28.7.2004 under Ex-gratia scheme for the post of S.S. Mistress.
In accordance with Haryana Govt. instruction No.16/138/2001-5 GS dated 31.3.2003, the eligible dependent of the deceased employee is required to apply for employment under Ex-gratia scheme within three years of the death of the employee.
The employment case of Kumari Bandana Sharma has been considered in terms of above stated policy and found that the applicant is not eligible for employment as she did not become eligible for employment within three years of death of her mother Smt. Raj Bala. Thus the claim of the applicant is hereby rejected." C.W.P. No. 13465 of 2005
Notice of motion having been issued, the respondents have filed the reply by taking the archaic stand that if the petitioner has been able to wait for such a long time then the crisis caused by the death of the parents has been blown off, as she has been able to sustain herself for such a long period. It has been pointed out that the purpose of providing compassionate appointment is to mitigate hardship caused due to the death of the bread earner of the family and such an appointment is required to be provided to the family in distress. The crisis for which the compassionate appointment was required to be made has already come to an end according to the reply and the petitioner has no vested right to seek such an appointment.
Mr. R.K. Malik, learned counsel for the petitioner has, however, argued that in accordance with Rule 18 of the Rules, a special exception has been carved out in respect of orphans for grant of ex-gratia employment to them. According to exception the aforementioned Rules are required to be relaxed in cases of children who have become orphans upon the demise of the Government employee. The claim of the dependent of such employee for compassionate appointment is to remain alive untill such time, one child has attained maturity/ minimum eligible age for entering into Government service. Learned counsel has further pointed out the definition of expression "Orphan" by referring to Section 3(k) of the Rules. According to the aforementioned definition, the petitioner is an orphan as the expression has been defined to be a child who has previously lost one parent and has become Orphan upon the demise of the Government employee after losing the other parent. In the present case, both the parents of the petitioner, who were employees of the respondent State, have died on October 21, 1988 and September 24, 1993. At the time of the death of the mother of the petitioner, she was barely 13 years old and had not attained maturity or minimum eligible age for entry into government service.
Mr. Harish Rathee, learned counsel for the respondents has argued that Rule 18 read with Rule 3(k) of the Rules has to be interpreted to mean that both the parents died simultaneously and C.W.P. No. 13465 of 2005
only then relaxation of other Rules could be granted as envisaged.
According to the learned counsel, the distress caused by the demise of the parents of the petitioner has already blown off and the compassionate appointment is not required to be given to tide over crisis on account of untimely death of the bread earner of the family.
Therefore, learned counsel has submitted that Rule 18 read with Rule 3(k) of the Rules does not apply to the facts and circumstances of the present case.
Having heard the learned counsel for the parties, we are of the view that there is merit in this petition. Rule 3(k) and Rule 18 of the Rules are necessary to be extracted to appreciate the arguments raised by the learned counsel for the parties and the same reads as under:-
"3(k) "orphan" means a child who has previously lost one parent and has become an orphan upon the demise of the Government employee;"
" 18. There shall be no relaxation of any provision of these rules. However, as a special case, these rules shall be relaxed only in the cases of children who have become orphans upon the demise of the Government employee. The claim of appointment of such orphans, shall remain alive till one child has attained majority/minimum eligible age for entry into Government service."
A perusal of the definition of expression `orphan' would show that if a child lost one of his parents at the earlier stage then he become orphan upon the demise of Government employee. In other words, if both the parents have expired, the children would be considered to be orphans. Rule 18 carves out an exception in the case of orphan by providing that there has to be relaxation of Rules in the cases of children who have become orphan. The use of word `shall' before the word `relaxed' in the Rule would point out that the Rule is mandatory and it must remain alive till one child attain C.W.P. No. 13465 of 2005
majority/minimum eligible age for entry into Government service.
Again the expression `shall' has been used before the expression `remain alive'. It is, thus, obvious that the petitioner who has lost both her parents in 1988 and 1993 has to be regarded as an orphan and her case is required to be considered by relaxing the Rules. It has come on record that the date of birth of the petitioner is 9.7.1980.
She has acquired the qualification of B.A. B.Ed. and then applied for compassionate appointment to the respondents on July 28, 2004. Her claim has been rejected without examining her case in the light of Rule 3(k) read with Rule 18 of the Rules by applying the principle that the petitioner should have applied for compassionate appointment within three years of the death of her mother. In other words, she was required to apply for compassionate appointment in the year 1996 when she was 15-16 years old. At that stage she was not qualified to enter government service nor she had requisite qualification. The case of the petitioner is required to be considered by relaxing the Rules and without insisting upon the period within which she was required to apply. According to Rule 18 of the Rules, she could have applied on attaining the age of majority or minimum eligible age for entry into Government service and her claim for appointment was to continue to remain alive. Therefore, we are of the view that the petitioner deserves to be given appointment on compassionate basis.
The argument of the learned State counsel that Rule 18 of the Rules is attracted only in cases where both the parents die simultaneously, has to be noted for rejection. The argument is unsustainable for the simple reason that Rule 3(k), which defines the expression `orphan' uses the expression `a child who has previously lost one parent'. The use of expression `previously lost one parent' would patently show the rule envisages death of one parent at one point of time and the government employee at a later point of time. It would show that the simultaneousness as pleaded by the learned State counsel neither flows from the Rule nor it is imaginable. We fail to understand the ingenuity of the argument raised by the learned State C.W.P. No. 13465 of 2005
counsel. We are also not inclined to accept the archaic stand of the respondent State that crises confronting the orphan children is blown off after lapse of time. In ordinary cases of compassionate appointment and in given facts such a stand could possible be taken but in the cases of orphan, as envisaged by Rule 3(k) read with Rule 18 of the Rules, the stand of the respondents cannot be accepted at all. Therefore, we have no hesitation to reject the submissions made on behalf of the respondent State.
In view of the above discussion, we quash the order dated 25.1.2005 (P-2) and direct the respondents to consider the case of the petitioner for appointment on compassionate ground to Class- III post including the post of Mistress, according to her qualification or any other post which may be available. The needful shall be done within a period of three months from today.
May 1, 2006 JUDGE
1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporters or not? : Yes
3. Whether the judgment should be reported in the digest.
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