BHUPINDER SINGH Vs. STATE OF HARYANA

JUDGEMENT

(1.) WE have heard the learned counsel for the petitioner at length and perused the paper -book.

(2.) THE father of the petitioner was working as Accountant Clerk in the Irrigation Department of Haryana, when he died on 12.5.1994. The petitioner being the dependent son of the deceased applied for a job on compassionate ground on 3.8.1994. After more than five years, on 15.10.1999, appointment of the petitioner was approved. He was appointed on the post of Clerk on 18.10.1999. Since then the petitioner had been working on the post of clerk, satisfactorily. The petitioner claims that he did not conceal any facts at the time when he sought appointment. On 5.7.2004, the petitioner was issued a show cause notice seeking his explanation as to why his services be not terminated as the appointment had not been made under the rules and with the approval of the competent authority i.e. Engineer -in -Chief. The petitioner submitted t he reply t o t he show cause notice and stated that the application for appointment was submitted on 3.8.1994. He did not hide the fact that his mother was employed as a JBT teacher. His appointment is to be considered by taking into consideration the instructions prevalent at that time. The Department of the Irrigation kept on shuttling his case for appointment and finally decided to give him the appointment on 15.10.1999. The department took five years and two months to issue the offer of appointment. If the appointment had been made at the proper time, the controversy with regard to the applicability of the instructions dated 8.5.1995 would not have arisen. The petitioner also claimed that the approval not being granted by the competent authority, is an internal matter of the department. He should not be punished for the lapse of the department. The petitioner further claimed that he had rendered more than 4 -1/2 years service and has now become over -aged. It would not be possible for him to apply for any other government job. After considering the reply, the respondents have passed an order dated 16.3.2005. The Engineer -in -Chief had taken into consideration the submissions of the petitioner noted above. It has been observed that the upper age limit for recruitment to government service has been raised from 35 to 40 years for the General Category. Therefore, the petitioner cannot claim that he would not be able to apply for any other government job.

(3.) LEARNED counsel for the petitioner, however relies on a Division Bench judgment of the Rajasthan High Court in the case of Shashi Bala v. State of Rajasthan, 2001(3) S.C.T. 408, in support of the submission that since the petitioner had put in 4 -1/2 years of services, he should now be permitted to continue on the job. In the aforesaid case, the Division Bench dealt with the peculiar situation. The petition had been preferred by a widow. Her husband had died while in government service. At the time of his death, he had two minor sons. The widow applied for appointment under the Rajasthan Recruitment of Dependents of Government Servants Dying while in Service Rules, 1975, on the post of class IV. The petitioner was the second wife of the deceased. The first wife had given a 'No Objection Certificate' to the appointment of the petitioner i.e., the second wife. The first wife had received all the payments of her husband relating to State Insurance, Gratuity along with other pensionary benefits. The petitioner was appointed on 21.5.1987. She was again appointed on 4.6.1987 on the same post, but at a different Industries Centre, she joined on 6.6.1987 and since then she was continuously working on the post. Respondent No. 3 -Director of Industries without issuing any show cause notice or giving any opportunity of hearing terminated the services of the petitioner. It was this order which was challenged by the petitioner. The writ petition was dismissed by the learned Single Judge, on the ground that the impugned orders were passed, after thorough enquiry. Aggrieved by the aforesaid judgment, the petitioner filed appeal before the Division Bench. Before the Division Bench, it was argued on behalf of the State that it was not necessary to issue any show cause notice to the appellants as her services had been terminated on the basis of the audit objection raised by the Accountant General, Rajasthan. The objection was that the payment of salary to the appellant was not permissible as she was not the legally wedded wife/widow of the deceased government servant, as the other widow was alive and was being given pensionary benefits. Taking into consideration the very peculiar facts of the case, it has been observed by the Division Bench that the Head of the Department had taken the decision to appoint the appellant, keeping in view the overall interest and welfare of the family members of the deceased government servant. It was not disputed that pursuant to the appointment made in the year 1987, the appellant had actually worked as Class IV employee and had earned her salary. Therefore, it was held that the payment of salary to the appellant for actual services rendered by her cannot be faulted in any manner, that too, by the audit objection of the year 1998 -99 and the termination of services of the appellant was also made without affording any opportunity. The Division Bench noticed that it is not the case of the Department that the appellant had secured her appointment by concealment of any fact from them. It was also noticed that the definition of 'Family' includes the wife and husband, sons and married or widowed daughters and son/daughter adopted according to the provisions of law, who were dependent upon the deceased government servant. The Division Bench also came to the conclusion that even under the Rules, the appointing authority, after analysing the entire situation, made the appointment keeping in view the over all interest and welfare of the dependents of the deceased government servant. It was, therefore, observed as follows: -