Rajasthan High Court - Jodhpur
Suresh Sirvi vs State (Education) & Ors on 6 September, 2012
Author: Dinesh Maheshwari
Bench: Dinesh Maheshwari
1
DBSAW No.449/2012
Suresh Sirvi Vs. State of Rajasthan & Ors.
4
D.B. Civil Special Appeal (W) No.449/2012
Suresh Sirvi
vs
State of Rajasthan & Ors.
DATE OF ORDER: 6th September 2012.
HON'BLE MR. JUSTICE DINESH MAHESHWARI
HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN-II
Mr. Rajesh Soni, for the appellant.
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BY THE COURT:
By way of this intra-court appeal, the petitioner-appellant seeks to question the order dated 07.02.2012 as passed in CWP No.340/2012 whereby the learned Single Judge of this Court has found baseless the submissions of the appellant in regard to his claim for appointment on compassionate basis and has dismissed the writ petition.
In brief, the relevant background aspects of the matter are that the father of the appellant, late Shri Kalu Ram, who was working as Class IV employee in Government Higher Secondary School, Tilwasni, allegedly went missing on 16.11.1987. It appears from the material placed on record that on 20.02.1994, the mother of the appellant lodged one report (Annex.1) stating the fact of her husband, i.e., the father of the appellant, missing since 16.11.1987. This report was essentially made with reference to an order issued by the Government for grant of family pension to the dependents of the missing employees. It further appears from the material on record that the authorities took up the proceedings on the report so made and ultimately, the SHO, Police Station, Bilara, Jodhpur 2 DBSAW No.449/2012 Suresh Sirvi Vs. State of Rajasthan & Ors.
informed the District Education Officer, Jodhpur on 25.05.2003 (Annex.4) that the missing employee, i.e., the father of the appellant, was not found. Another certificate to that effect is said to have been issued by the Gram Panchayat, Khariya Mithapur, Bilara (Annex.5). It is also borne out from the record that ultimately, the Government proceeded to sanction family pension in regard to the family of the missing employee.
The appellant, stating his date of birth as 10.12.1987, seems to have made an application seeking appointment on compassionate basis with reference to the presumed death of his father. The petitioner has not given the date of making of the application (Annex.9) in the writ petition but it appears that the application was made somewhere in the year 2008. There had been a recommendation made by the Head Master of the Government Higher Secondary School, Tilwasni on 03.10.2008 for giving compassionate appointment to the son of the missing employee who was presumed to be dead. It appears that the petitioner made further representations and then, approached this Court by way of a writ petition (CWP No.6480/2011).
In the order dated 25.07.2011 (Annex.11) as passed in the said writ petition (No.6480/2011), a learned Single Judge of this Court considered the claim made by the appellant and referred to the relevant provisions of the Rajasthan Compassionate Appointment of Dependents of Deceased Government Servant Rules, 1996 ('the Rules of 1996') and also to the principles that the compassionate appointments are, by their very nature, exceptional 3 DBSAW No.449/2012 Suresh Sirvi Vs. State of Rajasthan & Ors.
and are resorted to as a matter of concession essentially in order to provide basic support to the family to meet with the crises. The learned Single Judge, however, took note of the submission of the appellant that the representation made by him on 17.07.2010 had not been considered and on the basis of these submissions, directed the authorities concerned to consider the representation and to decide the same with a speaking order.
Thereafter, the Director, Secondary Education Rajathan proceeded to reject the representation made by the appellant in his order dated 12.09.2011 (Annex.13) with reference to the decisions of the Hon'ble Supreme Court and of this Court; and with reference to the facts of the case while observing as under: -
"हस ग पकरण म य च क प द न क 16.11.87 स ल हए ह थ
उ लब स वज क अनस र य च क" जनम त थथ 10.12.87 (ल ह&न क
श क" त थथ) ह( । य च द र भ वयसक ह&न र तनण,य नस र अक./बर
2008 म ससथ प न क& प थ,न त व 17.07.10 क& तन शक क& प थ,न त
कर म 3 क आथ5 . तनयक7 द य ज न ह म ग क" गई ह( । वर, 87 क
घ.न कम क सब म अक./बर 08 व जल ई 10 क क" समय वथ अत
पवलबब ह( , तनयम> क उद शय क रम,क क" मत3 य र तक ल ररव र क&
भ/ख मरन क" ससथत स बच न ह( , ज& इस पकरण म नहG ह( । अ : तनयम 10 (3) क र क क ह रशथथलन क" अरभश Hर ह पकरण क& नहG ह/I। कक ज रहG म ग अनक तमक तनयक7 तनयम 1996, क रम,क पवभ ग क उ7 तन K श> एव म नन य उचच म नय य लय द र द य गय पवतनशय> क पक श म तनयम नस र सव क र ककय ज न य&गय नहG ह( ।"
Aggrieved by the order so passed by the Director, the petitioner preferred the writ petition leading to this appeal (CWP No.340/2012). The learned Single Judge of this Court has found no case for interference particularly with reference to the factual aspects and the principles as applicable to the case. The learned Single Judge has, inter alia, observed and held as under: -
"I find that accordingly to the facts given in the impugned order, petitioner born in the year 1987 thus attained the age of majority sometime in the year 2005. Application for compassionate appointment was admittedly filed first time in the month of October 2008. In the aforesaid background, there is a delay of three years in making application on attaining age of majority. The 4 DBSAW No.449/2012 Suresh Sirvi Vs. State of Rajasthan & Ors.
purpose of compassionate appointment is not to evolve a mode of recruitment but to take care of immediate need of the family whose earning member died while in service. The very object given above is frustrated in the present matter if petitioner is allowed for compassionate appointment. Judgment of the Hon'ble Apex Court in the case of Umesh Kumar Nagpal Versus State of Haryana reported in 1994(4) SCC 138 is relevant where delay is taken to be fatal for seeking compassionate appointment. Other judgment in the case of Jagdish Prasad Versus State of Bihar reported in 1996 (1) SCC 301 is also relevant and applies to the facts of this case. Keeping in mind aforesaid judgments of the Hon'ble Apex Court, I do not find any illegality in the impugned order denying compassionate appointment to the petitioner. The writ petition is found to be devoid of merit, hence, it is dismissed."
It has strenuously been contended on behalf of the petitioner that the authorities have failed to consider the factual aspect of the matter in its true perspective. It is submitted that the case had been of presumed death of the employee and there had not been any delay in the matter because the application was moved immediately after the Gram Panchayat issued declaration about presumed death of the father of the petitioner on 07.11.2006 (Annex.7). It is also submitted that per clause (3) of Rule 10 of the Rules of 1996, the matter was required to be referred to the department of Personnel and the Director had acted illegally in not making such reference to the concerned department.
The submissions made on behalf of the appellant do not make out any case for interference in the intra-court appeal.
Compassionate appointment, an exception to the general rule of open recruitment, is intended to meet the immediate financial problems, if so faced by the bereaved family of the deceased employee. The very object of providing compassionate appointment to a dependent of the deceased employee who dies in harness is to relieve the family of hardship and distress caused due to sudden 5 DBSAW No.449/2012 Suresh Sirvi Vs. State of Rajasthan & Ors.
demise of its bread-earner. Such provisions for compassionate appointment, by their very nature, are in exception to the general procedure prescribed for making appointments; and are required to be applied while keeping in view the fact that by making such appointments, other eligible persons are deprived of their chance to seek employment. The Hon'ble Supreme Court in the case of Director of Education (Secondary) Vs. Pushpendra Kumar : (1998) 5 SCC 192 has pointed out:
"The object underlying a provision for grant of compassionate employment is to enable the family of 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 humanitarian consideration and having regard to 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 for giving gainful appointment to one of the dependent 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 by taking away completely the right conferred by the main provision. Care has, therefore, to be taken that provision for grant of compassionate employment, which is in the nature of an exception to the general provisions, 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 of the dependent of a deceased employee."
In the case of Umesh Kumar Nagpal Vs. State of Haryana & Ors. : (1994) 4 SCC 138 the Hon'ble Supreme Court observed:
"The consideration for such employment is not a vested right which can be exercised at any time in future. The object being to enable the family to get over the financial crisis which it faces at the time of the death of the sole breadwinner, the compassionate employment cannot be claimed and offered whatever the lapse of time and after the crisis is over."
Applying the principles aforesaid to the facts of the present case, we are unable to find any reason wherefor the appellant could 6 DBSAW No.449/2012 Suresh Sirvi Vs. State of Rajasthan & Ors.
have been granted the relief of consideration of his claim for compassionate appointment. The father of the petitioner went missing in the year 1987. As noticed, even the missing report in this regard was made only in the year 1994. Be that as it may, even if all the facts as suggested are taken to be existing, the principles of law for drawing presumption had come into operation much before the so called certificate as issued by the Gram Panchayat on 07.11.2006. We have our reservations on the point if Gram Panchayat could have at all made such a declaration as purportedly made in the so called certificate dated 07.11.2006 about presumption of death of a person. In any case, it remains undeniable that the appellant attained the age of majority in the year 2005. Nothing has been shown as to what prevented him from making the prayer at the relevant time. It has also not been shown as to whether any prayer for compassionate appointment was made on behalf of the mother of the appellant at the relevant point of time. A suggestion is, of course, stated in the affidavits as filed by the mother and sister of the appellant that the mother of the appellant was not given the employment for physical incapacities but it has not been shown as to when did she apply, if at all any such application was made. Else, as noticed, the missing person report itself was made only in the year 1994 with reference to the Government's decision of granting family pension to the dependents of the missing employees. It is also indisputable that the family pension was in fact sanctioned and granted.
7DBSAW No.449/2012
Suresh Sirvi Vs. State of Rajasthan & Ors.
It appears that the appellant came up with the suggestion about grant of compassionate appointment somewhere in the year 2008 and not before. In the given fact situation, the principles in Pushpendra Kumar and Umesh Kumar Nagpal (supra) directly operate against the claim of the appellant. In the facts and circumstances of the present case, it cannot be assumed that the family is in need of such immediate relief as is required to be dealt with by way of giving compassionate appointment to the appellant.
In the totality of the facts and circumstances of the case so far the reference to Rule 10(3) is concerned, the Director has consciously taken note of the same and then has found no reason to refer the matter. The order as passed by the Director pursuant to the directions of this Court cannot be said to be suffering from arbitrariness as to call for interference in the writ jurisdiction. Hence, in our opinion,the learned Single Judge has rightly dismissed the baseless writ petition filed by the appellant.
The appeal fails and is, therefore, dismissed.
(NARENDRA KUMAR JAIN-II), J. (DINESH MAHESHWARI),J. cpgoyal/-