Sushma Devi vs Dakshin Haryana Bijli Nigam Ltd. and others

L.N. Mittal, J.—Decree holder Sushma Devi has filed this revision petition under Article 227 of the Constitution of India for quashing order dated 11.9.2008 Annexure P/12 passed by the executing court i.e. learned Additional Civil Judge (Senior Division), Rewari and order dated 6.1.2010, Annexure P/14 vide which representation Annexure P/13 of the petitioner has been rejected by the respondents.

This case has chequered history. Jai Pal Singh father of the petitioner was employee of the respondents judgment-debtors. Jai Pal Singh died in harness. Petitioner by filing suit claimed compassionate appointment. The suit was decreed vide judgment and decree dated 17.4.2004, Annexure P/7 which has attained finality. Relief granted to the petitioner by said judgment and decree is reproduced hereinunder:-

For the reasons recorded in the foregoing issues, the suit of the plaintiff is hereby partly decreed with costs to the effect that the order dated 16.5.2002 passed by the defendant no. 3 vide his office memo No. Ch.39/Pen/F4234 is illegal, null and void and is not binding on the plaintiff and the plaintiff is entitled to her appointment on compassionate ground under ex-gratia scheme as dependent of late Jai Pal Singh father of the plaintiff. The defendants are given three months time to issue appointment letter to the plaintiff failing which the plaintiff shall be entitled to salary and arrears thereon for the post she is found entitled immediately after the expiry of 3 months time. Decree sheet be prepared accordingly. File be consigned to the record room.

Pursuant thereto, the petitioner has been appointed as Peon by the respondents. However, suit filed by petitioner''s mother Champa Devi wife of late Jai Pal Singh has been decreed vide judgment and decree dated 23.2.2007, Annexure A/1 to the following effect:-

In view of my findings on the above issues, present suit is partly decreed and plaintiff is entitled for refixation of his pension on the refixation of pay of late Jaipal as per modified ACP scales of Rs 5450-8000/-. Plaintiff is also entitled to get arrears of revised pension of the last 38 months prior to filing the present suit and onwards along with interest @ 10% per annum. Keeping in view peculiar facts of the present suit, no order as to costs. Decree sheet be made. File be consigned to record room.

Aforesaid judgment and decree have attained finality.

In view of higher scale i.e. ACP scales granted to the deceased employee vide judgment and decree Annexure P/1, the petitioner made application Annexure A/11 in the executing court for restoration of the execution petition and for granting higher scale to the petitioner. The said application has been dismissed by the executing court vide impugned order Annexure P/12 which is under challenge in this revision petition. The petitioner also made representation Annexure P/13 to the respondents, who, however rejected the same vide order Annexure P/14.

I have heard learned counsel for the parties and perused the case file.

According to the instructions, compassionate appointment has to be granted to dependent of the deceased employee at one step lower than that of the deceased employee. The interpretation of ''one step lower'' was clarified vide instructions Annexure P/6 to mean ''one pay scale below'' that of the deceased employee. It was illustrated by way of an example that if a clerk was drawing ACP scale or higher scale, then the dependent of the deceased employee would be entitled for employment as clerk in the initial scale. In view of this clear instructions, the petitioner is entitled to scale one step below the scale which has been granted to the deceased employee Jai Pal Singh vide judgment and decree Annexure P/1. Claim of the petitioner to this effect is fully justified.

Counsel for the respondents contended that petitioner was granted appointment one pay scale below that of the deceased employee which the deceased employee was holding at the time of implementation of judgment and decree Annexure P/7 and subsequent grant of higher scale to the deceased employee vide judgment and decree Annexure P/1 would not entitle the petitioner to corresponding higher scale. The contention cannot be accepted. The deceased employee has been granted higher scale vide judgment and decree Annexure P/1. Thus, at the time of his death, Jai Pal Singh is deemed to be drawing the said higher scale. Consequently, the petitioner is entitled to appointment in scale one step below the said higher scale of the deceased employee.

For the reasons aforesaid, the instant revision petition has to be allowed because impugned order of the executing court as well as impugned order passed by the respondents are unsustainable being in contravention of Government scheme and judgment and decree Annexure P/7 sought to be executed. According to judgment and decree Annexure P/7, the petitioner is entitled to appointment as per ex-gratia scheme of respondents. According to the ex-gratia scheme as discussed hereinbefore, the petitioner is entitled to appointment in scale one step below the scale held by the deceased employee as per judgment and decree Annexure P/1.

Accordingly, the instant revision petition is allowed. Impugned order Annexure P/12 passed by the executing court and impugned order Annexure P/14 passed by the respondents are set aside. Respondents are directed to provide scale to the petitioner as discussed hereinbefore. However, the petitioner shall be entitled to consequential arrears only for three years preceding the filing of application Annexure P/11.