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Judgment
Nidhi Gupta, J.
Present Civil Writ Petition under Article 226 of the Constitution of India has been filed by the petitioner for the issuance of a Writ, Order or direction especially in the nature of a Writ of Certiorari for quashing the order dated 30.08.2010 (Annexure P-7) passed by the respondent No.2, whereby petitioner has been denied the appointment on compassionate ground in terms of the Instructions issued by the Government by considering the petitioner's husband as ad hoc employee, which is contrary to the law laid down by the Division Bench of this Hon'ble Court in case of "Sheela Devi Versus State of Haryana and others" reported as 2009(1) RSJ page 113; AND for the issuance of a Writ of Mandamus directing the respondents to consider her case for appointment on compassionate ground under the then prevalent at the time of death of her husband i.e. 8th October, 2000 and provide her appointment on compassionate ground.
Brief sequence of events in chronological order is as follows:– 01.09.1994: Vide order dated 01.09.1994 (Annexure P-1) (now deceased) husband of the petitioner was appointed on adhoc basis as S.S. Master. 13.09.1994: The husband of the petitioner had joined on 13.09.1994. 08.05.1995: Govt. had issued Instructions dated 08.05.1995 (Annexure P-5) for appointment of dependents of deceased employees, on compassionate ground.
16.06.1997: On 16.06.1997, Govt. of Haryana had issued Instructions that employees who had completed 2 years of service on 31.01.1996 and had been recruited through Employment Exchange, shall be regularized.
As husband of the petitioner was having less than 2 years of service as on 31.01.1996, therefore, his services could not be regularized in terms of the above Instructions.
08.10.2000: Husband of the petitioner had expired on 8.10.2000, after completing 6 years of service as adhoc employee.
2004: Petitioner had filed CWP-7193-2004 titled as Santosh Devi vs. State of Haryana and others, claiming family pension.
11.04.2005: Vide order dated 11.04.2005 (Annexure P-2), the said Writ Petition was allowed by this Court, and respondents were directed to grant family pension to the petitioner and to release the entire arrears within a period of 3 months.
22.08.2008: The said order dated 11.04.2005 was further challenged by the respondent-State; and matter reached before the Hon’ble Supreme Court. Vide order dated 22.08.2008 (Annexure P-3), SLP(Civil) No. 20427 of 2005 titled as State of Haryana and others vs. Santosh Devi filed by the respondent-State was dismissed.
17.10.2008: In compliance of order dated 11.04.2005 (Annexure P-2) passed by this Court, respondent passed order dated 17.10.2008 (Annexure P-4); and petitioner was granted family pension vide PPO No. 37257/F/HR and was also paid arrears from 09.10.2000 to 31.10.2006. 20.02.2009: It is the claim of the petitioner that her husband was treated as regular employee for the purpose of grant of family pension. But petitioner was not considered for compassionate appointment on the ground that her deceased husband was not a regular employee. Thus, petitioner had served legal notice dated 20.02.2009 to treat the husband of the petitioner as regular employee.
As no response was received thereto, petitioner had filed CWP-2240-2010 titled as Santosh Devi vs. The State of Haryana and others; which was disposed of by this Court vide order dated 09.02.2010 (Annexure P-6) with a direction to the respondents to take a decision on the legal notice within a period of 3 months.
30.08.2010: Vide impugned order dated 30.08.2010 (Annexure P-7), claim of the petitioner for Ex-Gratia appointment, has been rejected. 4.4.2011: Petitioner had filed Contempt Petition No. 311 of 2011 titled as Santosh Devi vs. Shri Vijayendra Kumar, IAS, Director, Secondary Education, Haryana, Chandigarh on 10.02.2011 on the ground that previously the respondents denied pensionary benefits vide order dated 21.04.2004 which has been quashed by this Court vide order dated 11.04.2005 (Annexure P-2). However as said Contempt Petition had been rendered infructuous in view of the fact that order dated 11.04.2005 already stood complied with, the same was disposed of accordingly, vide order dated 04.04.2011 (Annexure P-8).
Hence, the present Writ Petition.
Learned counsel for the petitioner submits that from the facts afore-noted, it is clear that husband of the petitioner had been treated as regular employee with the respondent-State for grant of pensionary benefits. It is submitted that therefore, even for the purpose of compassionate appointment, husband of the petitioner cannot be treated as adhoc employee. Accordingly, petitioner is entitled to be considered for compassionate appointment in terms of Instructions dated 08.05.1995 (Annexure P-5). He accordingly prays that the present Writ Petition be allowed; and respondents be directed to consider the case of the petitioner for appointment on compassionate ground.
Per contra, learned State Counsel has vehemently opposed submissions advanced on behalf of the petitioner and contended that as per Instructions dated 08.05.1995 (Annexure P-5) in order to be eligible for compassionate appointment, the deceased employee ought to have been a regular employee. The said condition has not been challenged by the petitioner; and there is no provision for relaxation of the said condition.
Moreover, in her previous CWP-7193-2004, petitioner has made no such prayer for compassionate appointment; and she had only prayed for family pension. As such, present Writ Petition is barred by Order 2 Rule 2 CPC as well. Moreover, compassionate appointment is not a vested right. He accordingly prays for dismissal of the present Writ Petition.
No other argument has been raised on behalf of learned counsel for the parties. I have heard learned counsel and perused the case file in detail. I find no merit in the submissions of the petitioner.
As per Instructions dated 08.05.1995 (Annexure P-5), dependents of the deceased employee are required to apply for compassionate appointment within 3 years of death of the employee. In the present case, husband of the petitioner had expired on 08.10.2000. Whereas, petitioner has first submitted application/legal notice for ex gratia appointment only on 20.2.2009. As such, petitioner is not entitled for compassionate appointment as per the terms of the said Instructions dated 08.05.1995 (Annexure P-5). Moreover, petitioner has not challenged the said condition.
It is also to be noted that even after coming into force of the Instructions dated 08.05.1995 (Annexure P-5), petitioner had duly filed CWP-7193-2004. However, even in the said Writ Petition, petitioner had only sought family pension. There is merit to the argument of learned State Counsel that the present Writ Petition is barred by principle of constructive resjudicata as, there is no reason given by the petitioner as to why she did not claim compassionate appointment under the Instructions dated 08.05.1995, in the first Writ Petition no. 7193 of 2004, filed by her.
Furthermore, contention of the petitioner that as deceased husband of the petitioner was taken to be a regular employee for grant of family pension, then even for grant of compassionate appointment he ought to be treated as regular employee, is untenable. The petitioner has been granted family pension under Rule 3 of the Family Pension Scheme 1964, which reads as follows: -
"3.This scheme comes into force with effect from 1st July, 1964 and is applicable to all regular employees on pensionable establishment- temporary or permanent who were in service on the 1st July 1964 or are recruited thereafter."
A bare reading of the above shows that family pension is admissible under Scheme of 1964 to regular employees, as well as to temporary or permanent employees who were in service on 01.07.1964 or are recruited thereafter. Admittedly, husband of the petitioner was appointed on 01.09.1994. As such, family pension was payable to the petitioner.
Even otherwise, vide order dated 11.4.2005, husband of the petitioner was not considered to be a regular employee. The said contention of the petitioner is based on a misreading of the order dated 11.4.2005. The relevant extract of the said order reads as follows: –
“In the case in hand, husband of the petitioner worked for more than six years. An employee, who had worked continuously for a period of six years, cannot be termed to have been appointed as a stop gap arrangement. As per the policies issued by the State of Haryana from time to time, for regularization of services of its adhoc employees, services of all those employees, who had worked for three years on adhoc basis, have been regularized. However, before any such policy could confer the status of a regular employee upon the deceased husband of the petitioner that his unfortunate demise took place. There being no requirement in the family pension scheme that the deceased employee must have worked on regular basis only and having regard to the interpretation of the said scheme made by this court in various judgments, a reference to which has already been made by us we allow this writ petition and quash the impugned order dated 21.4.2004 (Annexure P-4) and direct the respondents to grant family pension to the petitioner and to release the entire arrears within a period of three months from the date of receipt of a certified copy of this order. No order as to costs.” (Emphasis applied)
In any event, as already noted above, such a belated claim of the petitioner cannot be entertained as, as per the Instructions dated 08.05.1995 (Annexure P-5), petitioner was required to submit her application within three years of death. It is not disputed that petitioner has filed the present petition only in the year 2011 i.e. about 11 years after the death of her husband on 08.10.2000. Case of the petitioners is therefore, hit by delay and laches as well.
The issue of delay stands settled by the Hon’ble Supreme Court in case of State of Uttar Pradesh v. Arvind Kumar Srivastava (SC) : Law Finder Doc Id # 627984,
“23 …… (2) However, this principle is subject to well recognised exceptions in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the Court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fence-sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim.”
The aforesaid judgment has been followed by a Coordinate Bench of this Court in Sudhir Bala v. State of Punjab, (Punjab And Haryana): Law Finder Doc Id # 2678248, decided on 11.12.2024; wherein it is held that “Delay and laches in filing a writ petition under Article 226 of the Constitution of India can disentitle a petitioner to relief, especially when there is an inordinate and unexplained delay in asserting one's rights.”
Moreover, concession of compassionate appointment is meant for family members of the deceased Govt. employees who were working on regular basis.
However, it is not disputed by learned counsel for the petitioner that under the Instructions dated 08.05.1995 (Annexure P-5) Ex-Gratia Compassionate appointment is admissible only to dependents of regular employees. As per the Instructions of 2003, 3 years’ regular service is required for seeking appointment on Ex-Gratia basis. As such, petitioner is not eligible. In any event, family pension scheme and appointment on compassionate ground are two different issues and cannot be inter-connected by the petitioner in this manner as both the said benefits are governed by different set of Scheme/Instructions.
It is established position in law that the same is not a vested right. For grant of compassionate appointment, all relevant factors such as financial situation, et cetera have to be taken into consideration. In the present case, petitioner is admitted regularly receiving the family pension. The present case is squarely covered by the judgment of this Court in Pinki Devi v. State of Haryana, (Punjab And Haryana): Law Finder Doc Id # 2859118; wherein it is held that: -
“Compassionate appointment is not a vested right and is subject to strict scrutiny of financial destitution and fulfillment of eligibility criteria as per applicable policy at the time of death of the employee.”
Keeping in view the above factual and legal position, the present Writ Petition stands dismissed.
Pending application(s) if any also stand(s) disposed of.