Rajasthan High Court - Jodhpur
The State Of Rajasthan & Ors vs Mangu Singh on 3 May, 2018
Bench: Chief Justice, Vinit Kumar Mathur
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
(1) D.B. Spl. Appl. Writ No. 1505 / 2014
1. The State of Rajasthan through the Secretary, Irrigation
Government of Rajasthan, Jaipur.
2. Superintending Engineer Water Resources Division cum
Technical Assistant Chief Engineer Water Resources Division
(North) Hanumangarh.
3. Executive Engineer Water Resources Circle, Shri Vijay Nagar,
District- Ganganagar.
----Appellants
Versus
Gyan Chand S/o Sh.Jethuram Aged about 22 years, R/o Deeh
Mehandi Post Babu Ganj Janpad Pratapgarh, Uttar Pradesh.
----Respondent
Connected With
(2) D.B. Spl. Appl. Writ No. 1433 / 2014
1. The State Of Rajasthan through the Secretary, Department
of Personnel (A-2), Secretariat Rajasthan, Jaipur.
2. Principal Chief Conservator of Forest, Rajasthan, Jaipur.
3. Chief Conservator of Forest, Department of Forest, Bikaner.
4. Divisional Forest Officer, Department of Forest, Bikaner.
----Appellants
Versus
Mangu Singh S/o Sh.Narpat Singh Shekhawat b/c Rajput, Aged
about 30 years, R/o Bharpalsar, Tehsil-Ratangarh, District-Churu
(Raj.)
----Respondent
(3) D.B. Spl. Appl. Writ No. 173 / 2015
1. The State of Rajasthan through the Deputy Secretary,
Department of Personnel, Government of Rajasthan, Jaipur.
2. Additional Director, Social Justice and Empowerment
Department, Rajasthan, Jaipur.
3. Chief Engineer, Indira Gandhi Nahar Pariyojna, Bikaner.
4. Chief Engineer, Indira Gandhi Nahar Pariyojna, Jaisalmer.
----Appellants
Versus
(2 of 7)
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Suresh Chand Saini s/o Late Shri Kailash Chand Saini r/o Ward
no.22, Mohalla Saray, Near By Janana Hospital, Kotputli, Distrtict
Jaipur.
----Respondent
_____________________________________________________
For Appellant(s) : Mr.S.S.Ladrecha, Additional Advocate
General with Mr.Vikash Choudhary.
For Respondent(s) : Mr.H.S.Sidhu
Mr.Arjun Purohit.
_____________________________________________________
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE VINIT KUMAR MATHUR
Judgment 03/05/2018
1. Jethuram, father of Gyan Chand was a Beldar in the Irrigation Department of the State of Rajasthan. Narpat Singh, father of Mangu Ram was also a Beldar, but under the Forest Department of the State of Rajasthan. Kailash Chand, father of Suresh Chand was a Ferroman holding permanent employment under the Irrigation Department. Three having died, their sons sought appointment on compassionate basis.
2. In the State of Rajasthan appointment on compassionate basis is governed by the Rajasthan Compassionate Appointment of Dependents of Deceased Government Servants Rules, 1996. Rule 11 of the said Rules reads as under:-
"11. Over-riding effect.- These rules and any order issued thereunder shall have effect notwithstanding anything to the contrary contained in any rules regulations or orders in force at the commencement of these Rules."
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3. Appointment under the Forest Department in the State of Rajasthan is governed by the Rajasthan Forest Subordinate Service Rules, 1963 and in the Irrigation Department it is governed by the Rajasthan Engineering Subordinate Service (Irrigation Branch) Rules 1967.
4. In the year 2005 the Rajasthan Various Service (Amendment) Rules, 2005 were promulgated . The said Rules read as under:-
"1. Short title and Commencement. - (1) These rules may be called the Rajasthan Various Service (Amendment) Rules, 2005.
(ii) They shall come into force with immediate effect.
2. Amendment. - The existing following expression appearing in Sub-rule (3) or (4) or (5) as the case may be, of rule as mentioned in Column No.3 against each of the service Rules as mentioned in Column No.2 of the Schedule appended hereto: -
"No candidate shall be eligible for appointment to the service who has more than two children on or after 1.6.2002:
Provided that the candidate having more than two children shall not be deemed to be disqualified for appointment so long as the number of children he/she has on 1.6.2002, does not increase:
Provided further that where a candidate has only one child from earlier delivery but more than one child are born out of a single subsequent delivery, the children so born shall be deemed to be one entity while counting the total number of children."
shall be substituted by the following, namely: -
"No candidate shall be eligible for appointment to the service who has more than two children on or after 1.6.2002:
Provided that the candidate having more than two children shall not be deemed to be disqualified for appointment so long as the number of children he/she on 1.6.2002 does not increase.:
Provided further that where a candidate has only one child from earlier delivery but more than one child are born out of a single subsequent delivery, the children so born shall be deemed to be one entity while counting the total number of children.
Provided also that the provisions of this sub-rule shall not be applicable to the appointment of a widow to be made under The Rajasthan Compassionate Appointment of Dependents of Deceased Government Servants Rules, 1996.
(4 of 7)
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SCHEDULE
S.No. Name of Service Rules Number of
Existing Rule
1 to 13 ------- ------
14. The Rajasthan Forest Subordinate Service 16
Rules, 1963
15to 21 ------- ----
22. The Rajasthan Engineering Subordinate 21
Service (Irrigation Branch) Rules, 1967
5. The respondents in the three above captioned appeals were the writ petitioners and were denied appointment on compassionate basis on account of having more than two children.
6. Relief has been granted to the three respondents by three identically worded judgments dated 3rd February, 2014, 25th March, 2014 and 3rd November, 2014 giving twofold reasons. Firstly that the Rajasthan Compassionate Appointment of Dependents of Deceased Government Servants Rules, 1996 have not been made a part of the Schedule to the Rajasthan Various Service (Amendment) Rules, 2005 and the additional reason that Rule 11 of the Rajasthan Compassionate Appointment of Dependents of Deceased Government Servants Rules, 1996 has an over-riding effect.
7. Relevant would it be to highlight that as per the Rajasthan Various Service (Amendment) Rules, 2005, Rule 16 of the Rajasthan Forest Subordinate Service Rules, 1963 and Rule 21 of the Rajasthan Engineering Subordinate Service (Irrigation Branch) (5 of 7) [ SAW-1505/2014] Rules, 1967 were amended. The amendment would be to the effect that what has been provided in Rule 2 of the Amendment Rules of 2005 would be treated as Sub-rule (3) or (4) or Sub-rule (4) or (5) in the existing Rule of the various Service Rules listed in the Schedule of the Amendment Rules of 2005.
8. The effect of the Amendment Rules of 2005 would be that in the Rajasthan Forest Subordinate Service Rules, 1963 as also the Rajasthan Engineering Subordinate Service (Irrigation Branch) Rules, 1967 it would have to be read that a candidate having more than two children born on or after 1.6.2002 would be ineligible to be given service as per the Rules either in the Forest Department or the Irrigation Department. The last proviso to the Amendment Rules of 2005 excludes only a widow.
9. The learned Single Judge has granted relief on the strength of Rule 11 of the Compassionate Appointment Rules of 1996 which Rule we have quoted in paragraph 2 above.
10. The Rule in question has an over-riding effect if anything in the said Rules is contrary to what is contained in said other rules, regulations or orders in force at the commencement of the said Rules.
11. There is no rule in the Compassionate Appointment Rules of 1996 stipulating eligibility and thus the question of any other Rule stipulating eligibility being contrary to the Compassionate Appointment Rules of 1996 does not arise.
12. The legal position therefore would be that on account of the Amendment Rules of 2005, such Service Rules which have been (6 of 7) [ SAW-1505/2014] amended and amendment being to debar a person who has more than two children born on or after 1.6.2002 to be appointed, be it on compassionate basis or otherwise would be ineligible for appointment.
13. The philosophy behind the amendment needs to be understood. Compassionate appointment has to be granted where on account of the death of a Government servant while in service the family comes under a financial stress because the family members are dependent upon the Government servant. The intention was not to give employment to an unemployed family member.
14. The three cases are illustrative of the fact that the three claimants, being the son of the deceased Government employee, were married and father of three children when their father died. Two deceased Government employees were Beldar, the lowest paid employees. Being married and having three children the three claimants would be earning livelihood to support their wife and children. What dependence the three would have on their father? Two were Beldar, the lowest paid employee.
15. Be that as it may, the philosophy under the concept of compassionate appointment being ignored, the decision has to be as per Rules.
16. For the reasons recorded hereinabove the Rules prohibit grant of appointment even on compassionate basis when the claimants are the son of the deceased Government servant and are married having three children.
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17. The appeals are allowed. Impugned orders dated dated 3 rd February, 2014, 25th March, 2014 and 3rd November, 2014 are set aside. The writ petitions filed by the respondents are dismissed. (VINIT KUMAR MATHUR)J. (PRADEEP NANDRAJOG)CJ. Parmar