Rajasthan High Court - Jodhpur
Ashish Saxena vs State Of Raj. & Ors on 18 January, 2017
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B.Civil Writ Petition No. 7005 / 2014
Ashish Saxena S/o late Shri Ashok Saxena, aged 39 years, by
caste Kayast, resident of Banswara at present Plot No.142, Hari
Marg, Civil Line, Jaipur (Raj.).
----Petitioner
Versus
1. State Of Rajasthan Through the Chief Engineer, Mahi Bajaj
Sagar Project, Banswara.
2. The Chief Engineer, Mahi Baja Sagar Project, Banswara.
3. The Superintendent Engineer Construction Circle, Mahi Bajaj
Sagar Project, Banswara.
4. Smt. Madhu Saxena, by caste Kayast, resident of 5/45, Mahi
Kafloni, Banswara (Raj.).
5. Sunny Saxena, by caste Kayast, resident of 5/45, Mahi
Kafloni, Banswara (Raj.).
----Respondents
_____________________________________________________
For Petitioner(s) : Mr. Ranjeet Joshi
For Respondent(s) : Mr. Dron Kaushik
Mr. N.S. Rajpurohi, AGC
_____________________________________________________
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Judgment
REPROTABLE
18/01/2017
The petitioner has preferred by this writ petition making a
following prayer :
" i) by an appropriate writ, order or
direction the respondents be directed to
appoint the petitioner on the post of L.D.C.
or any other appropriate post commensurate
to the qualification of the petitioner under
the Rules, 2002 with all consequential
benefits;
ii) by appropriate writ, order or direction
the respondents be directed to appoint the
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petitioner as L.D.C. in Mahi Bajaj Sagar
Project, Banswara in pursuance of
application made by the petitioner and the
petitioner may be appointed on the post of
L.D.C. or any other post which is
commensurate to the qualification of the
petitioner on the ground of compassionate
employment as per rules, 2002;
iii) any other order, which this Hon'le
Court considers just and proper, may kindly
be passed in favour of the petitioner; and
iv) Costs of this writ petition be allowed
to the petitioner.
The facts as noticed by this Court in the petition are that
the father of the petitioner died while in service on 30.09.2006.
The petitioner applied for getting compassionate appointment
under the provisions of Rajasthan Compassionate Appointment
of Deceased Government Servant Rules, 1996 on 10.06.2006
within 40 days of death of the petitioner's father alongwith
application form duly supported by the affidavit of the
petitioner's mother and sister.
The respondents did not consider the application dated
08.11.2006 on the ground that the petitioner would require a
succession certificate which was accordingly obtained by the
petitioner on 28.05.2013. The respondents, however, in spite of
the succession certificate did not grant the compassionate
appointment to the petitioner and therefore, petitioner preferred
this writ petition.
The respondent Nos.1 to 3 filed a reply and stated that the
petitioner is 39 years of age and hence, over age for the
compassionate appointment. The respondents have also stated
that there were two marriages of the petitioner's father and
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since the divorce was granted in the first marriage and the
petitioner is the son procreated out of the first marriage,
therefore, being the family of the first wife he does not have any
right after the divorce. The reply also objects to the succession
certificate obtained by the petitioner on the ground that no
objection has been taken from all the successors which would
entitle the petitioner of compassionate appointment. During the
course of argument the counsel for the respondents also
furnished a order dated 03.07.2007, which was the government
appointment order of the second wife, who is respondent No.4 in
the present writ petition in widow quota. Counsel for the
respondents argued that since only one family member was
entitled in the Government service, therefore, petitioner shall be
disentitled for seeking job under the Compassionate
Appointment Rules. Counsel for the residents further argued that
the legitimate intention of granting compassionate appointment
is to tide over the immediate crisis of the family.
Counsel for the respondent also drew attention of the Court
to Rule 5 of the Rules 1996 which permitted appointment only if
there was no surviving Government Servant in the family.
Counsel for the petitioner stated that his entitlement for
the compassionate appointment happened on 30.09.2006 when
the father of the petitioner died while in service. The role of the
petitioner to claim such entitlement virtually came to an end on
06.11.2006, when he submitted a proper application for
consideration for the compassionate appointment. Once the
petitioner had submitted such application on 06.11.2006, the
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respondents were under the legal obligation to grant
compassionate appointment in accordance with Rules, 1996. Any
delay caused by the respondents for giving the compassionate
appointment cannot be attributed to the petitioner as he had
made his application well in time on 06.11.2006. Counsel for the
petitioner further argued that the date of appointment of
respondent No.4 was on 03.07.2007 whereas the entitlement of
the petitioner was on 06.11.2006 and the petitioner cannot be
penalised for in action on the part of the respondent.
Counsel for the petitioner reiterated that Government
employment of a family member subsequent to the application
preferred by him shall not dis-entitle him for the compassionate
appointment. Counsel for the petitioner also drew the attention
of the Court towards the judgment passed by the Hon'ble Apex
Court in the case of Canara Bank versus M.Mahesh Kumar
AIR 2015 SC 2411.
The relevant portion reads as follows :
12. The same principle was reiterated by
this Court in the case of Bhawani Prasad
Sonkar vs. Union of India & Ors., (2011) 4
SCC 209 : (2011 AIR SCW 2039), wherein it
was held as under :-
"15. Now, it is well settled that
compassionate employment is given solely
on humanitarian grounds with the sole
object to provide immediate relief to the
employee's family to tide over the sudden
financial crisis and cannot be claimed as a
matter of right. Appointment based solely on
descent is inimical to our constitutional
scheme, and ordinarily public employment
must be strictly on the basis of open
invitation of applications and
comparative merit, in consonance with
Articles 14 and 16 of the Constitution of
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India. No other mode of appointment is
permissible. Nevertheless, the concept of
compassionate appointment has been
recognised as an exception to the general
rule, carved out in the interest of justice, in
certain exigencies, by way of a policy of an
employer, which partakes the character
of the service rules. That being so, it needs
little emphasis that the scheme or the policy,
as the case may be, is binding both on
the employer and the employee. Being an
exception, the schemehas to be strictly
construed and confined only to the purpose
it seeks to achieve.
17. In Umesh Kumar Nagpal v. State of
Haryana, (1994) 4 SCC138 : (1994 AIR SCW
2305), while emphasising that a
compassionate appointment cannot be
claimed as a matter of course or in posts
above Classes III and IV, this Court had
observed that: (SCC p. 140, para 2)
"2....The whole object of granting
compassionate employment is thus to
enable the family to tide over the sudden
crisis. The object is not 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 posts in Classes III and IV
are the lowest posts in non-manual and
manual categories and hence they alone can
be offered on compassionate grounds, the
object being to relieve the family, of the
financial destitution and to help it get over
the emergency. The provision of
employment in such lowest posts by making
an exception to the rule is justifiable and
valid since it is not discriminatory. 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
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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."
.......
20. Thus, while considering a claim for employment on compassionate ground, the following factors have to be borne in mind:
(i) Compassionate employment cannot be made in the absence of rules or regulations issued by the Government or a public authority. The request is to be considered strictly in accordance with the governing scheme, and no discretion as such is left with any authority to make compassionate appointment dehors the scheme.
(ii) An application for compassionate employment must be preferred without undue delay and has to be considered within a reasonable period of time.
(iii) An appointment on compassionate ground is to meet the sudden crisis occurring in the family on account of the death or medical invalidation of the breadwinner while in service. Therefore, compassionate employment cannot be granted as a matter of course by way of largesse irrespective of the financial condition of the deceased/incapacitated employee's family at the time of his death or incapacity, as the case may be.
(iv) Compassionate employment is permissible only to one of the dependants of the deceased/incapacitated employee.
parents, spouse, son or daughter and not to all relatives, and such appointments should be only to the lowest category that is Class III and IV posts."
16. In Balbir Kaur & Anr. v. Steel Authority of India Ltd. &Ors., (2000) 6 SCC 493 : (Air 2000 SC 1596), while dealing with the application made by the widow for 7 [CW-7005/2014] employment on compassionate ground applicable to the Steel Authority of India, contention raised was that since she is entitled to get the benefit under Family Benefit Scheme assuring monthly payment to the family of the deceased employee, the request for compassionate appointment cannot be acceded to. Rejecting that contention in paragraph (13), this Court held as under:-
"13 But in our view this Family Benefit Scheme cannot in any way be equated with the benefit of compassionate appointments. The sudden jerk in the family by reason of the death of the breadearner can only be absorbed by some lump-sum amount being made available to the family
-- this is rather unfortunate but this is a reality. The feeling of security drops to zero on the death of the breadearner and insecurity thereafter reigns and it is at that juncture if some lump-sum amount is made available with a compassionate appointment, the grief-stricken family may find some solace to the mental agony and manage its affairs in the normal course of events. It is not that monetary benefit would be the replacement of the breadearner, but that would undoubtedly bring some solace to the situation."
Referring to Steel Authority of India Ltd.'s case, High Court has rightly held that the grant of family pension or payment of terminal benefits cannot be treated as a substitute for providing employment assistance. The High Court also observed that it is not the case of the bank that the respondents' family is having any other income to negate their claim for appointment on compassionate ground.
17. Considering the scope of the Scheme `Dying in Harness Scheme 1993' then in force and the facts and circumstances of the case, the High Court rightly directed the appellant-bank to reconsider the claim of the respondent for compassionate appointment in accordance with law and as per the Scheme (1993) then in existence. We do not find any reason warranting interference. 8
[CW-7005/2014] On the basis of the aforesaid discussions this court of the opinion that the petitioner became entitled for compassionate appointment on 06.11.2006 when he made an application pursuant to death of his father on 30.09.2006 while in service. The contention of the counsel for the department cannot be accepted because the petitioner was within age limit at that time when he applied for compassionate appointment and therefore, he cannot be deprived of his statutory right of gaining compassionate appointment. The appointment of respondent No.4 on 03.07.2007 would not have any impact upon the right of the petitioner as it was an independent Government appointment under widow quota and did not have any bearing upon the consideration under the Rules of 1996. Any appointment of a family member subsequent to the right existing for considerably time would not dis-entitle the family member for compassionate appointment under Rule 5 of the Rules 1996. The precedent law cited by the counsel for the petitioner makes in amply clear that compassionate appointment after long duration cannot be denied only on account of in action on the part of the respondents state to have positively considered the case of the concerned person where the statutory right arising out of Rules 1996 were to be implemented by the state shortly within reasonable time of application on 08.11.2006.
The argument of tiding over the immediate crisis cannot be applied in the present circumstances as the statutory right was very well existing and petitioner had not caused any delay in 9 [CW-7005/2014] seeking the appointment and therefore, his right of compassionate appointment has to be protected.
It is strange that even the concept of it legitimate child is not acceptable in these times and it has been held by the Hob'ble Apex Court that all children whatsoever the status of the parents might be are legitimate and shall have legitimate rights whereas in this case admittedly the petitioner was a lawfully born child out of the lawful wedding. Therefore, it is inappropriate on the part of respondents to argue that with the end of the marriage the rights of the child shall be over. The demand of succession certificate by the respondents was also unnecessary and illegal impediment caused by the respondents in violation of the Rules of 1996 for compassionate appointment. There was absolutely no need for succession certificate in light of the fact that there was only one family member claiming the compassionate appointment under the Rules of 1996. The respondents were under a lawful and statutory obligation to grant immediate compassionate appointment under the Rules of 1996.
The writ petition is, accordingly allowed and the respondents are directed to give compassionate appointment to the petitioner on appropriate post as per his qualification. Such appointment shall be made within period of three months from furnishing the certified copy of this judgment.
(DR. PUSHPENDRA SINGH BHATI)J. Himanshu/-18