Rajasthan High Court - Jaipur
Manchha Ram vs State Of Rajasthan And Others on 19 April, 2000
Equivalent citations: 2000(2)WLN267
Author: B.S. Chauhan
Bench: B.S. Chauhan
ORDER Chauhan, J.
(1). The instant writ petition has been filed for seeking employment on compassionate ground under the Rajasthan Compassionate Appointment of Dependants of Deceased Government Servants Rules, 1996 (for short, "the Rules, 1996").
(2). The facts and circumstances giving rise to this case are that petitioner's father died in harness on 23.4.94 while working as Class IV employee in the Co-operative Department and as the petitioner was minor at that lime, after passing Middle Standard Examination in the month of April, 1997, he applied for employment on compassionate ground under the said Rules of 1996 by submitting an application on 19.5.97. However, after correspondence at different levels in the Department, the application was rejected vide order dated 25.3.98 (Annex. 4) on the ground that he was below 18 years of age and was not eligible for appointment. The petition has been filed on the ground that under certain Circulars issued by the Competent Authority, a person is eligible for employment at the age of 16 years in special circumstances and petitioner could not have been denied employment on this ground.
(3). When this Court raised the issue: whether compassionate employment can be claimed at such a belated stage, it was pointed out that the Old Rules, i.e. the Rajasthan Recruitment of the Dependants of Deceased Government Servant Dying while in Service Rules, 1975 (for short, "the Rules, 1975"), provided that a dependant of deceased employee may apply for employment on compassionate ground after attaining the majority and initially the Rules, 1996 did not contain any such analogous provision but the said Rules of 1996 stood amended by the State Government vide Notification dated 19.4.99 (Annex.9). Para 4 of the said Notification provides the amendment of rule 10 of the Rules, 1996, by which in Sub-rule (3) of rule 10, the period for submitting the application has been fixed as three months instead of forty-five days. It also provides for furnishing the details of income of other family members from all sources. it further reads as under:-
"In case the husband or wife, as the case may be, is not willing for employment and the eldest of the dependants has not attained the age of 18 years, the information to this effect may be furnished to the Head of the Department within the period of three months from the date of the death of the employee and the limitation of applying for service of three months shall be counted from the date of attaining the age of 18 years."
(4). Thus, it has been contended on behalf of the petitioner by Mr. Vijay Bishnoi that by the aforesaid amendment, a dependant has a right to get employment on compassionate ground whenever he attains the age of eighteen years, provided the information regarding his minority has been furnished within the period of three months from the date of death of the employee and, thus, there can be no embargo/inhibition in gelling compassionate employment even at such a belated stage.
(5). This Court suo moto issued notice to the State as well as to the learned Advocate General on 6.8.99 as why this proviso, which enables a dependant to claim employment on compassionate ground at any belated stage after attaining the majority, should not be struck down as the same might be violative of the provisions of Articles 14 and 16 of the Constitution. The learned Advocate General appeared in pursuance of the said notice and submitted that this Court has competence to examine the validity of the said provision suo moto and this view stands fortified by the judgment of this Court (Jaipur Bench) in Ghanshyam Avasthi vs. State of Rajasthan & Ors (1).
(6). There can be no quarrel to the legal proposition that mere pendency of an application does not create any legal right in favour of the applicant, (Vide Union of India & Ors. vs. Indian Charge Chrome & Anr. (2). Matter requires to be decided as per the law prevailing on the date of decision making. Moreso, even if the law stood amended, the case has to be decided as per the amended law. In the instant case, whatever may have been the position of the 1975 Rules, petitioner's father died on 23.4.94 and the present rule came into effect on 31.12.96 and the application was filed by the petitioner first time on 19.5.97. Thus, the basic question which arises is: whether petitioner could be eligible to apply for employment on compassionate ground after three years of the death of his father and the validity of the said part of Sub- rule (3) of rule 10 is to be examined in this context.
(7). The law provides for presumption in favour of Constitutional validity of the Statute. In Municipal Corporation of City of Ahmedabad vs. Jan Johammed Usmanbhai & Anr (3), the Constitution Bench of the Supreme Court has observed as under:-
"There is always a presumption in favour of constitutionality of an enactment and The burden is upon him who attacks it to show that there has been a clear violation of the constitutional principles. The Courts must presume that the Legislature understands and correctly appreciates the claim of its own people that its laws are directed against the problems made manifestly by experience and that its discrimination are based on adequate ground. It must be borne in mind that the Legislature is free to recognise degrees of harm and may confine its restrictions to those cases where the need is deemed to be a clearest and finally that in order to sustain the presumption of constitutionality, the Court may take into consideration the matters of common knowledge, matters of rapports, history of the times and may assume every set of facts which can be received to be existing at the time of legislation."
(8). In K. Anjaiah & Ors. vs. K. Chandraiah & Anr (4), the Hon'ble Apex Court has observed that it is the cardinal principle of construction that the statute and the rules of the regulations must be held to be constitutionally valid unless and until it is established that they violate any specific provision of the Constitution and the Court is under solemn duty to scrutinize the provisions of the Act, Rules or the Regulations within the set para-meters If the validity of the statutory provisions is challenged. Same view has been taken in Smt. Parayankandiyal Eravath Kanapravan Kalliani Amma vs. K. Devi (5); Dr. K.R. Lakshmanan vs. State of Tamil Nadu (6) and New Delhi Municipal Committee vs. Stale of Punjab & Ors (7).
(9). In adjudging the validity of the provision, the existing conditions, in which the law is to be applied, cannot be ignored for the reason that it is relatable to the object to be achieved by the legislation. (Vide Anukul Chandra Pradhan vs. Union of India & Ors. (8). To attract the concept of arbitrariness enshrined in Article 14 of the Constitution, it is necessary to show that the provision is so unreasonable or arbitrary that It does not have any regard to the object which is sought to be achieved. For striking down the rule, it is necessary that the rule should be found to be intrinsically arbitrary or otherwise repugnant to the Constitutional principle. Unless there is a clear transgration of Constitutional principle, which is discernible from the object and scheme, the case will not fall within the ambit of Constitutional inhibition of Article 14.
(10). Thus, it is just to be seen as what has been the purpose of enacting the Rules. In Smt. Sushma Gosain & Ors. vs. Union of India & Ors (9), the Hon'ble Supreme Court has observed as under:-
"The purpose of providing appointment on compassionate ground is to mitigate the hardship due to death of the bread-earner in the family such appointment should, therefore, be provided immediately to redeem the family in distress."
(11). This view has further been reiterated and followed in Smt. Phoolwati vs. Union of India & Ors. (10).
(12). In Umesh Kumar Nagpal vs. State of Haryana & Ors. (11), Apex Court has considered the nature of the right which a dependant can claim while seeking employment on compassionate ground. The Court has observed as under:-
"It appears that there has been a good deal of obfuscation on the issue. As a rule, appointment in the public services should be made strictly on the basis of open invitation of applications and merit. No other mode of appointment for any other consideration is permissible. Neither the Governments nor the public authorities are at liberty to follow any other procedure or relax qualifications laid down by the rules for the post. However, to this general rule which is to be followed strictly in every case, there are some exceptions carved out in the interest of justice and to meet certain contingencies. One such exception is in favour of the dependants of an employee dying in harness and leaving his family in penury and without any means of livelihood. In such cases, out of pure humanitarian consideration taking into consideration the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made in the rules to provide gainful employment to one of the dependants of the deceased who may be eligible for such employment. The whole object of granting compassionate employment is, thus, to enable the family to tide over the sudden crisis. The object is riot to give a member of such family a post much less a post for post held by the deceased. What is further, mere death of an employee in harness does not entitle his family to such source of livelihood. The Government or the public authority concerned has to examine the financial condition of the family of the deceased and it is only if it is satisfied that but for the provision of employment, the family will not be able to meet the crisis that a job is to be offered to the eligible member of the family....
.....The favourable treatment given to such dependant of the deceased employee in such posts has a rational nexus with the object sought to be achieved, viz. relief against destitution. No other posts are expected or required to be given by the public authorities for the purpose, it must be remembered in this connection that as against the destitute family of the deceased, there are millions of other families which are equally, if not more, destitute. The exception to the rule made in favour of the family of the deceased employee is in consideration of the services rendered by him and the legitimate expectations, and the change in the status and affairs of the family engendered by the erstwhile employment which are suddenly upturned... Unmindful of this legal position, some Governments and public authorities have been offering compassionate employment sometimes as a matter of course irrespective of the financial condition of the family of the deceased.... The decision does not justify compassionate employment either as a matter of course... The only ground which can justify compassionate employment is the penurious condition of the deceased's family..... The consideration for such employment is not a vested right..... The object being to enable the family to get over the financial crisis.
(13). The same view has been reiterated in Jagdish Prasad vs. State of Bihar (12); State of Bihar vs. Samsuz Zoha (13); Himachal Road Transport Corporation vs. Dinesh Kumar (14) and Hindustan Aeronautics Ltd. vs. A. Radhika Thirumalai (15). It has categorically been held that compassionate employment cannot be claimed as a matter of course not being a vested right.
(14). The concept of vested right has been explained by the Apex Court in Babi Sayeeda vs. State of Bihar (16), wherein it has been described as under:-
"The word 'vested' is defined in Black's Law Dictionary (6th Edition) at page 1563, as 'vested', Fixed; accrued; settled; absolute; complete. Having the character or given in the rights of absolute ownership; not contingent; not subject to be defeated by a condition precedent.' Rights are 'vested' when right to enjoyment, present or prospective, has become property of some particular person or persons as present interest; mere expectancy of future benefits, or contingent interest in properly founded on anticipated continuance of existing laws, does not constitute vested rights. In Webster's Comprehensive Dictionary, (International Edition) at page 1397, 'vested' is defined as (L) aw held by a tenure subject to no contingency; complete; established by law as a permanent right; vested interest."
(15). In Haryana State Electricity Hoard & Anr. vs. Hakim Singh (17), the Hon'ble Apex Court placed reliance upon the judgments referred to above and observed that the object of providing for compassionate employment is only to relieve the family from financial hardship, therefore, an 'ameliorating relief should not be taken as opening an alternative mode of recruitment to public employment.
(16). Similarly, in Haryana State Electricity Board vs. Naresh Tanwar & Anr (18), the Hon'ble Apex Court reiterated and followed the law laid down in Umesh Nagpal's case (supra) and directed the applicants involved therein to apply for employment on compassionate ground "by giving full details of the family circumstances and the economic conditions."
(17). In Director of Education (Secondary) & Anr vs. Pushpendra Kumar & Ors. (19), the Apex Court has observed as under:-
"The object underlying a provision for grant of compassionate employment is to enable the family of the deceased employee to tide over the sudden crisis resulting due to death of the bread-earner which has left the family in penury and without any means of livelihood. Out of pure humantarian consideration and having regard to the fact that unless some source of livelihood is provided, the family would not be able to make both the ends meet, a provision is made for giving gainful appointment to one of the dependants of the deceased who may be eligible for such appointment. Such a provision makes a departure from the general provisions providing for appointment on the post by following a particular procedure. Since such a provision enables appointment being made without following the said procedure, it is in the nature of an exception to the general provisions. An exception cannot subsume the main provision to which it is an exception and thereby nullify the main provision. Care has, therefore, to be taken that a provision for grant of compassionate employment, which is in the nature of an exception to the general provision, does not unduly interfere with the right of other persons who are eligible for appointment to seek employment against the post which would have been available to them, but for the provision enabling appointment being made on compassionate grounds for the dependant of a deceased employee."
(18). In Chairman, Bihar Rajya Vidyut Board vs. Chhathu Ram (20), the Hon'ble Supreme Court held that in absence of the statutory provisions, an adopted son cannot claim appointment on compassionate ground. Similarly, in General Secretary, American Express Bank Union vs. American Express Bank Ltd. (21), the Hon'ble Supreme Court held that mere adoption of recruitment policy in pursuance of a Settlement between he Union and the employer for compassionate employment of the specified categories of relations of employees on their retirement, death or incapitation, cannot be enforced unless adopted by the employer by bringing the Standing Order/Statutory Rule, similarly, in West Bengal State Electricity Board vs. Sameer Kumar Sarkar (22), the Hon'ble Apex Court held that embargo on compassionate employment in case of death of employee within two years prior to reaching the age of superannuation, was not invalid.
(19). A Division Bench of this Court in Narendra Singh vs. State of Rajasthan & Ors. (23), while dealing with the issue, observed that the object and purpose of providing the employment on compassionate ground is to redeem the family which has lost its bread-earner and not to create any new mode of recruitment for dependant of the government servant and it cannot be claimed as a vested right.
(20). The text and context of the entire provisions must be looked into while interpreting any of the provision of the Statute. The Court must look to the object which the Statute seeks to achieve while interpreting the provisions of the Act/Rules/Regulations. A purposive approach for interpreting the provision is necessary.
(21). It is also settled principle of interpretation of law that any interpretation which leads to hardship and complication, should be avoided. In Administrator, Municipal Corporation, Bilaspur vs. Dattatraya Dahankar Anr (23), the Hon'ble Apex Court has held that "the mechanical approach to construction is altogether out of play with the modern positive approach. The modern positive, i.e. to effectuate the object and purpose of the Act."
(22). In Colour-Chem. Ltd. vs. A.L. Alaspurkar (24), the Apex Court held that the provisions of welfare legislation should be construed in a way to give benefit to the persons for whose benefit the Rules have been enacted and the Court must examine the policy and object of the Act and must advance the cause of enactment.
(23). In Durga Oil Company & Anr. vs. State of U.P. & Ors. (25), the Hon'ble Supreme Court held that while interpreting the provisions of a Statute or Rules, the purposive interpretation should always be borne in mind. Similar view has been taken by the Hon'ble Supreme Court in Forest Range Officer vs. P. Mohd. Ali (27). In Municipal Corporation of Greater Bombay vs. Indian Oil Corporation Ltd. (28), the Apex Court observed as under:-
"The language of a statutory provision is not static vehicle of ideas and concepts and as ideas and concepts change, as they are bound to do in any country like ours with the establishment of a democratic structure based on egalitarian values and aggressive developmental strategies, so must the meaning and content of the statutory provision undergo a change it is elementary that law does not operate in a vacuum. It is not an antique to be taken down, dusted, admired and put back on the shelf, but rather it is a powerful instrument fashioned by society for the purpose of adjusting conflicts and tensions which arise by reason of clash between conflicting interest. It is, therefore, intended to serve a social purpose and it cannot be interpreted without taking into account the social purpose and it cannot be interpreted without taking into account the social, economic and political setting in which it is intended to operate."
(24). In S.P. Jain vs. Krishna Mohan Gupta (29), the Hon'ble Supreme Court had held that law should take a pragmatic view of the matter and response to the purpose for which it was made and also take cognizance of the current capabilities and life-style of the community. It is well settled that the purpose of law provides a good guide to the interpretation of meaning of the Act. The legislative futility is to be ruled-out so long as the legislative policy permits.
(25). In Daily Pratap vs. Regional Provident Fund Commissioner (30), the Hon'ble Supreme Court held that the Court must always keep in view the beneficial and social welfare aspect of the statute. Same view has been taken by the Hon'ble Apex Court in Dinkar Anna Patil vs. State of Maharashtra & Ors (31); Regional Provident Fund Commissioner vs. S.D. College, Hoshiarpur (32); and Bharat Petroleum Corporation Ltd. vs. Maharashtra General Kamgar Union & Ors (33). In Vaijanath & Ors. vs. Guramma & Anr (34), the Hon'ble Supreme Court held that remedial Act should be given beneficial interpretation.
(26). However, in Employees' State Insurance Corporation vs. M.M. Suri & Associates (P) Ltd., (35), the Hon'ble Supreme Court held that even if the statute is beneficial, the Courts should not stretch it too far. The Supreme Court relied upon its earlier judgments in Regional Director, E.S.I Corporation vs. Ramanuja Match Industries (36), wherein the Court observed as under:-
"Counsel for the appellant emphasised on the feature that the statute is a beneficial one and the Court should not interpret a provision occurring therein in such a way that the benefit would be withheld from the employees. We do not doubt that the beneficial legislation should have liberal construction with a view to implement the legislative intent but where such beneficial legislation has a scheme of its own, there is no warrant for the Court to travel beyond the scheme and extend the scope of the statute on the pretext of extending the statutory benefit to those who are not covered by the scheme."
(27). An employment on compassionate ground should be provided strictly in accordance with the Rules and the Court cannot take a view as to make it violative of Articles 14 and 16 of the Constitution of India. (Vide Cochin Dock Labour Board vs. Leenamma Samuel and Others (37). The Court should not stretch the provision by liberal interpretation beyond permissible limits on humanitarian grounds. (Vide U.P.R.T.C. vs. Pukhraj Singh and Others (38); and Andhra Pradesh State Road Transport Corporation vs. P. Pochaiah and Another (39).
(28). The issue involved herein requires consideration in the light of the settled legal principles discussed hereinabove. The Rules have been carved out as an exception to the Service Jurisprudence which mandatorily require that any appointment in public office is to be made in consonance with the mandate of Articles 14 and 16 of the Constitution as any appointment, even on temporary or ad-hoc basis, if found to be violative of the said provisions of the Constitution would remain unenforceable being invalid. (Vide State of Haryana vs. Piara Singh (40); Prabhat Kumar Sharma vs. State of U.P. (41); and Thomas Chandy vs. Rajasthan Financial Corporation (42). However, the Rules have framed to mitigate the financial hardship of the grieved family which has lost its bread-earner, as an exception to the provisions of Article 14 and 16 of the Constitution of India. It is settled principle of law that an exceptional Clause/rule has to be construed strictly. (Vide Satnam Singh vs. Punjab & Haryana High Court (43); Slate Level Committee vs. M/s. Morgardshammar Indian Ltd. (44); and Puri Municipal Council vs. Indian Tabacco Co. Ltd. (45).
(29). In Ravindra Singh vs. Stale of Rajasthan and Others (46), this Court has observed as under:-
"The appointments offered on compassionate ground, in exercise of the powers of these Rules, are extraordinary appointments given for a specific purpose and, therefore, amount to a reasonable restriction on the mandate of the Constitution given by Article 16 thereof that there shall be an equality of opportunity in the matter of public appointment. A preferential appointment, without competition or consideration of other eligible candidate would normally vitiate the mandate of Article 16 and would, therefore, be unconstitutional.... It will, therefore, be seen that a provision made for giving appointment to a dependant of deceased Government servant in preference to others who enjoy equal right of consideration for appointment to a Government service Is protected merely by reason of being exception to Article 16. So viewed, the rules providing for compassionate appointment will have to be construed strictly and cannot be construed widely and as benevolent legislation...
A careful consideration of Article 16 and the principles embodied therein, demonstrate the desire of the Constitution- Makers to create equality in the matter of public employment and men equal right is, therefore, given to the citizens. These Rules, which do away with this right of equality, therefore, form an exception to the General Rule enshrined in Article 16. Being an exception, therefore, the Canons of Interpretation require that it should be construed strictly according to the Rules of Interpretation. Therefore, the provisions will have to be construed strictly, in have, therefore, to consider the scope and extent of rule 5 of the Rules applying these Canons of Interpretation.
The interpretation given to rule 5 will have to be such as it does not conflict with the Principles of Article 16 of the Constitution. A scrutiny of Rule 5 will further fortify this contention.....since the rules providing for compassionate appointment are based on humanitarian consideration and giving immediate employment to a bereaved family are liable to be considered as rules putting reasonable restriction on the fundamental right provided by Article 16. To give a wider interpretation to these rules may result in the rules becoming unreasonably restricting and such restriction is, therefore, not permissible in law."
(30). Thus, in view of the above, as the very purpose of compassionate employment is to redeem the family from immediate financial hardship, the amendment contained in Clause (3) of rule 10 to make it available to a dependant whenever he attains majority, cannot be sustained in the eyes of law being violative of the provisions of Articles 14 and 16 of the Constitution. It opens a made of employment by succession which is not permissible in law. If the eldest dependant attains the age of 18 years after an inordinate delay from the death of the employee, offering appointment to him at such a belated stage would not serve the purpose of granting immediate financial relief to redeem the grieved family from financial constrains. Therefore, the said clause, being ultra-vires, is struck down. However, it is clarified that the judgment shall not have any bearing on the appointments already made under the Rules and it will have a prospective effect. Even in case of the petitioner, if he had already been appointed on compassionate ground, it is not desirable to disturb him.