Rajasthan High Court - Jodhpur
Bhagirath Dan Barath vs State (Personnel) & Ors on 2 April, 2012
Author: Dinesh Maheshwari
Bench: Dinesh Maheshwari
SBCWP No.2707/2012
Bhagirath Dan Bharath Vs. State of Rajasthan & Ors.
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S.B. CIVIL WRIT PETITION NO.2707/2012.
Bhagirath Dan Barath
Vs
State of Rajasthan & Ors.
DATE OF ORDER: 2nd April 2012.
HON'BLE MR. JUSTICE DINESH MAHESHWARI
Mr.H.S. Sidhu, for the petitioner.
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BY THE COURT:
After having heard the learned counsel for the petitioner and having perused the material placed on record, this Court is unable to find any reason to entertain this matter in the writ jurisdiction.
Put in a nutshell, the petitioner, aged about 38 years, seeks appointment on compassionate basis and seeks to question the order whereby his prayer for compassionate appointment has been declined with reference to the fact that he is having 5 children, one of them born on 19.05.2005.
In brief, the relevant facts and background aspects of the matter are that the father of the petitioner, who was serving on the post of Constable with the respondents, went missing in the year 1973; and initially, his services were ordered to be terminated for absence from duty but, upon coming to know of the fact that he was missing, the department recalled the order of termination and allowed family pension. The petitioner is said to have born on 30.11.1973, after his father went missing. From the narration foregoing, it is apparent that the SBCWP No.2707/2012 Bhagirath Dan Bharath Vs. State of Rajasthan & Ors.
// 2 // employee, father of the petitioner went missing more than 38 years back; and, as at present, the petitioner is also more than 38 years of age; and admitted position it is that the petitioner is married and is having 5 children.
The petitioner, however, made an application under the Rajasthan Compassionate Appointment of Dependents of the Deceased Government Servant Rules, 1996 only in the year 2009 seeking appointment in place of his father. It appears that the application was made by the petitioner on 04.06.2009 whereupon he was asked to produce the death certificate; and whereafter, a declaratory suit was filed in the Court of Civil Judge (Jr. Div.), Churu by the mother of the petitioner wherein, by the decree dated 02.04.2011, the father of the petitioner was declared dead w.e.f. 22.09.1973.
The petitioner's case was initially recommended for appointment as a Class-IV employee. However, after verification, the Superintendent of Police, Sriganganagar declined the prayer as made by the petitioner by order dated 15.02.2011 (Annex.4) with reference to the Notification No.F-7 (1)DOP/A-2/95 dated 29.10.2005 whereunder, a candidate having more than 2 children after 01.06.2002 is not eligible for appointment. The petitioner has further placed on record a communication emanating from the office of the Hon'ble Chief Minister whereby the application made by him was forwarded to the concerned office. The petitioner has further placed on record an order dated 21.01.2010 whereby a compassionate appointment case has been considered with relaxation of the SBCWP No.2707/2012 Bhagirath Dan Bharath Vs. State of Rajasthan & Ors.
// 3 // requirement pertaining to the number of children after 01.06.2002.
Apart from the ground on which the respondents have declined the prayer made by the petitioner, in an overall view of the matter, this Court is clearly of the opinion that the claim for compassionate appointment as made by the petitioner had been an inexplicably belated one; and there is no reason to consider issuance of any writ, order or direction in this matter now at this stage.
It remains trite that 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 the hardship caused due to sudden 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 of seeking 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 SBCWP No.2707/2012 Bhagirath Dan Bharath Vs. State of Rajasthan & Ors.
// 4 // 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."
Compassionate appointment is not that of a vested right, rather it is a concession and not a right [vide Steel Authority of India Limited Vs. Madhusudan Das & Ors.: (2008) 15 SCC 560]; and the employer cannot be held bound to provide for this concession whenever a member of the family of the deceased employee would ask for the same, as observed by the Hon'ble Apex Court in the case of Umesh Kumar Nagpal Vs. State of Haryana & Ors. : (1994) 4 SCC 138 that,-
"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, this Court is unable to find any reason wherefor the petitioner could be granted the relief on his claim for SBCWP No.2707/2012 Bhagirath Dan Bharath Vs. State of Rajasthan & Ors.
// 5 // compassionate appointment now at this stage. The father of the petitioner was not heard of since the year 1973, as per the submissions made; and was no more after 22.09.1973, as per the declaratory decree. The petitioner, for the first time, made the application seeking compassionate appointment only on 04.06.2009, i.e., at the age of about 36 years, the same being the number of years his father was missing. The petitioner cannot be held entitled for compassionate appointment when the claim for such an appointment was made nearly 36 years after the presumed death of the employee, father of the petitioner.
Obviously, the very purpose for which, and the reasons on which, the compassionate appointment is considered and granted had withered away, rather ceased to exist, a long back in this case.
In view of the above, the petition fails and is, therefore, dismissed.
(DINESH MAHESHWARI), J.
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