Delay in appointment due to departmental inaction justifies treating the petitioner under the Old Pension Scheme, despite the New Pension Scheme coming into effect.

JUDGMENT

Mr. Harsimran Singh Sethi, J. (Oral)

CM No.15325 of 2023

Application is allowed.

2. Documents are taken on record.

CWP No.21305 of 2020

3. In the present petition, the grievance raised by the petitioner is that the respondents be directed to consider the petitioner under the Old PENSION SCHEME keeping in view of the facts and circumstances of the present case wherein, the direction was given by the competent Court of Law on 07.11.2005 according to which, the direction was given to appoint the petitioner forthwith which fact was prior to 01.01.2006.

4. Certain facts may be noticed for the correct appreciation of the issue in hand.

5. The father of the petitioner was working in the department of Education and while in service, he unfortunately died on 04.11.2001. The petitioner applied for ex-gratia appointment immediately after the death of his father but his claim was rejected by the department on 16.04.2004, which action was challenged by the petitioner by filing CWP No.3244 of 2005.

6. The writ petition filed by the petitioner was allowed by the Division Bench of this Court on 07.11.2005 in terms of another judgment passed in CWP No.11313 of 2004 titled as Ashok Kumar v. State of Haryana and others and direction was given to grant the petitioner the benefit of compassionate appointment forthwith.

7. Though, the direction was given to appoint the petitioner forthwith but the respondents took more than six months to implement the said order so as to appoint the petitioner vide order dated 28.04.2006 having endorsement dated 03.05.2006. Keeping in view the said delay, the petitioner has suffered prejudice as, the New PENSION SCHEME which has come into being w.e.f. 01.01.2006, which is being implemented upon the petitioner. The prayer of the petitioner is that once the direction was given to the department to appoint the petitioner forthwith much prior to 01.01.2006, the petitioner is entitled to be appointed under the Old PENSION SCHEME for all intents and purposes especially when there is an order passed by the competent Court of law.

8. The respondents have filed the reply in which, the respondents have stated that though, the claim of the petitioner was considered and direction was given to the department to grant the petitioner the benefit of appointment, the process took time and therefore, as the actual appointment of the petitioner was after 01.01.2006, the New PENSION SCHEME has been made applicable upon the case of the petitioner which is perfectly valid and legal.

9. I have heard learned counsel for the parties and have gone through the record of the case with their able assistance.

10. The claim of the petitioner arose in the month of November, 2001 to get the compassionate appointment after the death of his father, who was serving in the Education department. To claim the appointment, the petitioner had raised a claim in December, 2001 itself. The position for the grant of appointment is to be seen keeping in view the date of the death of the employee which is November, 2001. Though, the respondents took three years time to consider the claim of the petitioner and then rejected the said claim in the year 2004 but the Division Bench of this Court set aside the said order of rejection of claim and gave direction to the department vide order dated 07.11.2005 to appoint the petitioner on compassionate basis forthwith. The said direction was also given prior to the implementation of the New PENSION SCHEME which came into being w.e.f. 01.01.2006. That being so, once the direction was given by this Court to appoint the petitioner forthwith on 07.11.2005, there was enough t