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SUKHDEV KAUR versus STATE OF PUNJAB & ORS.

High Court of Punjab and Haryana, Chandigarh

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Sukhdev Kaur v. State of Punjab & Ors. - CWP-5703-2005 [2006] RD-P&H 2758 (1 May 2006)

CWP No. 5703 of 2005 Page numbers

In the High Court of Punjab and Haryana, Chandigarh.

CWP No. 5703 of 2005

Date of Decision: 28.4.2006

Sukhdev Kaur

....Petitioner

Versus

State of Punjab and others.

....Respondents.

Coram:- Hon'ble Mr.Justice J.S. Khehar.

Hon'ble Mr. Justice P.S. Patwalia

Present: Mr. Mukand Gupta, Advocate

for the petitioner.

Mr. B.S. Chahal, AAG, Punjab

for the respondents.

...

J.S. Khehar, J.

The husband of the petitioner (Kulwant Singh) was appointed as a peon in the office of the Sub Divisional Magistrate, Sardoolgarh, District Mansa, on 6.10.1995, on 89 days basis. The appointment of the petitioner's husband was repeatedly extended on 89 days basis, and as such, he continued to discharge his duties till 21.4.2001, on which date, he unfortunately died.

On account of the death of her husband in harness, and in view of the law laid down by the Apex Court in Umesh Kumar Nagpal Vs. State of Haryana and others, 1994 (4) SCC, 138, the petitioner claimed appointment on compassionate grounds under the ex-gratia scheme of the CWP No. 5703 of 2005 Page numbers

State government. It would be pertinent to mention, that although, the petitioner made various representations to the respondents, claiming appointment on compassionate grounds, the respondents failed to take any decision. It is in the aforesaid circumstances, that the petitioner approached this Court by filing Civil Writ Petition No.6763 of 2004. The aforesaid writ petition was disposed of by a Division Bench of this Court on 14.5.2004, requiring the respondents to take a final decision on the representations made by the petitioner, claiming compassionate appointment. In furtherance of the directions issued by this Court on 14.5.2004, the Deputy Commissioner, Mansa, by his order dated 20.9.2004, rejected the claim of the petitioner for appointment on compassionate grounds. Through the instant writ petition, the petitioner has impugned the order passed by the Deputy Commissioner, Mansa, dated 20.9.2004 (Annexure P-13).

A perusal of Annexure P-13 reveals, that the claim of the petitioner for appointment on compassionate grounds has been declined merely on account of the fact, that the husband of the petitioner i.e. Kulwant Singh, was not a regular employee on the roll of the respondents. According to the impugned order, appointment on compassionate grounds under the ex-gratia scheme framed by the State government, can only be claimed by a dependent of a deceased government employee, who was in the regular employment of the respondents.

While raising a challenge to the impugned order dated 20.9.2004, learned counsel for the petitioner, in his first step, desires to assert, that the husband of the petitioner Kulwant Singh deserved to be regularised in the employment of the respondents. In this behalf, he has placed reliance on the policy instructions, issued by the State government CWP No. 5703 of 2005 Page numbers

dated 26.5.2003. It would be pertinent to mention, that the policy instruction dated 26.5.2003, relied upon by the learned counsel for the petitioner, was issued on the basis of the directions of the Apex Court in State of Punjab and others Vs. Balkar Singh (Civil Appeal No.5059 of 1997, decided on 8.4.2003). The relevant directions of the Apex Court in Balkar Singh's case (supra), are being extracted hereunder:- "...appointments to the public offices should be made only after due selection and affording an opportunity to all the eligible persons desirous of competing have become final. Otherwise also no exception can be taken to the directions given by the High Court. But keeping in view that the thousands of employees in the State of Punjab who have worked for several years under the interim order made by this Court would be thrown out. We permit the State of Punjab to act in accordance with the policy framed by it purely on humantarian grounds.

Some o these employees in the meantime may have become overage. It may be difficult for them to find new jobs at this stage of their life. This arrangement is one time measure. The principles laid down by the High Court in its order to the effect that appointments should not be made on adhoc basis and that the same should be made only after due selection is upheld being unexceptionable. We permit the State to consider the case for regularisation of those employees who were appointed before 13.6.1996 on adhoc basis in terms of the policy..." Under the policy instruction dated 26.5.2003, issued in furtherance of the directions of the Apex Court in Balkar Singh's case CWP No. 5703 of 2005 Page numbers

(supra), the State government delineated the terms and conditions for regularisation. Paragraphs 1 to 7 of the aforesaid policy instructions, are being extracted hereunder:-

"1. I am directed to refer to the subject noted above and to convey that following decision of the State Government to regularise the services of employees who have been appointed on or before 13th

June, 1996 on 89 days/temporary/adhoc basis and are still in service without break in various departments of the State Government. The decision shall also apply to the Public Sector Undertakings Corporation, Boards, Local Authorities and other autonomous bodies in the State of Punjab.

2. While regularising the services of such employees, the following guidelines may be kept in view: i. The policy shall apply only to those employees who were appointed on 89 days/temporary/adhoc basis on or before 13.6.1996 against permanent/

regular/temporary posts which later became permanent.

ii. It shall be the duty of Administrative Department to verify and record a certificate that no person selected through advertisement/selection committee/selection Board was deprived of appointment due to continuation allowed to an adhoc employee as per circular letter No.14/33/94-4PP-III/6779, dated 9.4.1997.

CWP No. 5703 of 2005 Page numbers

iii.It shall also be verified that no supernumerary post was created to retain these employees in service when duly selected persons were appointed on regular basis.

iv.The regularisation of these employees does not adversely affect those who were appointed on regular basis after following correct selection procedure.

3. Apart from the above the employee(s) concerned fulfils the following requirements:

a. He/she possessed qualification prescribed for the post at the time of original appointment and satisfied all eligibility conditions as per service rules.

b. The work and conduct of the employee throughout has been satisfactory.

c. A medical fitness certificate and documentary proof of date of birth as per standing instructions shall be obtained if not done at the time of extending his appointment beyond 89 days.

d. His/her antecedents should be got verified from the Police Department as per Government instructions if it was not done earlier.

e. The regularisation shall take effect from the date of orders to be issued, and after determining inter-se- seniority amongst employees regularised under this policy, with reference to continuous service. They shall be placed below the employees last appointed on regular basis after following proper procedure.

CWP No. 5703 of 2005 Page numbers

4. Since the regularisation is being done on humantarian grounds no person shall be entitled to claim it as a right if found unsuitable due to non-fulfilment of any of the above conditions.

5. Hon'ble Supreme Court of India in its orders dated 8th April, 2003, passed in Civil Appeal No.5059/1997-State of Punjab and others Vs. Balkar Singh has permitted the State of Punjab to act in accordance with the above policy. So this policy is being issued as per decision in the above referred Civil Appeal.

6 It is further ordered that in future appointing authority in his/her Department shall personally ensure that such type of illegal/irregular appointments are not made under any circumstances. If any such instance will come to the notice of the government in future then apart from taking disciplinary action against the guilty officials/officers, they (dealing official (s) upto the appointing authority) shall be responsible to make payment of salary from their own pocket to such appointee(s).

7. Action to regularise the services of employees working on days/temporary/adhoc basis may be completed within a period of six months. These instructions may please be brought to the notice of the officers and other bodies working under Administrative control of your department. The appointees who do not fulfil the conditions mentioned in this policy, their services shall be dispensed with after following due process of law."

CWP No. 5703 of 2005 Page numbers

It is, therefore apparent, that the claim of the petitioner for regularisation has to be examined in terms of the directions of the Apex Court in Balkar Singh's case (supra) dated 8.4.2003, and the policy instruction dated 26.5.2003. A perusal of the impugned order dated 20.9.2004 reveals, that Kulwant Singh i.e. the husband of the petitioner was not entitled to regularisation on account of the fact, that he had died on 21.4.2001 i.e. well before the issuance of the directions of the Apex Court, as also the issuance of the policy instruction dated 26.5.2003.

Having examined the matter in the totality of the circumstances noticed above, we are of the view, that the judgement rendered by the Apex Court in Balkar Singh's case (supra), would be applicable only for considering the claim of such employees, who had been inducted into the service of the State government prior to 13.6.1996, and were still continuing in a temporary capacity. Since the husband of the petitioner i.e. Kulwant Singh, as noticed hereinabove, died on 21.4.2001 i.e. well before the judgement rendered by the Apex Court in Balkar Singh's case (supra), as also, well before the promulgation of the policy instructions dated 26.5.2003, we are satisfied, that the husband of the petitioner Kulwant Singh, was not entitled to regularisation, even though, he had been inducted into the service of the respondents, before 13.6.1996.

From the deliberations recorded hereinabove, it is apparent, that the petitioner's husband was not entitled to regularisation in the service of the respondents. Since appointment on compassionate grounds is permissible only on the death of a regular employee in harness, we are afraid, that the claim of the petitioner for employment on compassionate grounds, is clearly misconceived and has to be rejected. Ordered CWP No. 5703 of 2005 Page numbers

accordingly.

In view of the above, the instant writ petition is dismissed.

( J.S. Khehar )

Judge.

( P.S. Patwalia )

Judge.

28.04.2006

sk.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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