Rajasthan High Court - Jodhpur
Smt. Krishna Devi. vs . State Of Rajasthan & Anr. on 18 March, 2015
Author: Sandeep Mehta
Bench: Sandeep Mehta
1
S.B.CIVIL WRIT PETITION NO.5551/2008
Smt. Krishna Devi. Vs. State of Rajasthan & Anr.
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
ORDER
S.B.CIVIL WRIT PETITION NO.5551/2008 Smt. Krishna Devi. Vs. State of Rajasthan & Anr.
Date of order : 18.3.2015 HON'BLE MR.JUSTICE SANDEEP MEHTA Mr.Rajesh Joshi, for the petitioner.
Dr.Pratistha Dave, Dy.GC, for the respondents.
Reportable ...
1. Heard learned counsel for the parties.
2. The instant writ petition has been preferred by the petitioner assailing the order Annex.P/3 dated 7.6.2008 whereby the petitioner's services were sought to be terminated by the respondent no.2 - Municipal Board, Gajsinghpur.
3. Facts in brief are that the petitioner's mother-in-law Smt. Sukhali Devi was working as a Safai Karamchari in the Municipal Board, Gajsinghpur. She expired on 8.3.2003 while in service. The petitioner's husband Sita Ram is a patient of Asthama and as such, was not in a position to work in any capacity in the Municipal Board. Accordingly, the petitioner filed an application in the 2 S.B.CIVIL WRIT PETITION NO.5551/2008 Smt. Krishna Devi. Vs. State of Rajasthan & Anr. prescribed form along with her own and her husband's affidavits for being appointed as a Safai Karamchari on compassionate basis in place of her mother-in-law. The petitioner's application was considered in the meeting of the Municipal Board dated 17.6.2003 and a unanimous resolution was adopted to appoint the petitioner on the post of Safai Karamchari in place of her mother-in-law vide order Annex.P/2 dated 20.6.2003.
4. It is averred in the writ petition that no precise Rules for recruitment of Safai Karamcharies existed in Rajasthan Municipalities (Class IV service) Rules, 1964 (for short, referred to herein after as "the Rules of 1964') at that point of time. Appointment as a Safai Karamchari could be offered to any suitable person even without summoning his/her name from the Employment Exchange. It appears that after the petitioner had worked as a Safai Karamchari for 5 years, an audit objection was raised regarding the petitioner's appointment and in compliance thereof, the order Annex.P/3 dated 7.6.2008 came to be passed whereby the services of the petitioner were terminated.
5. It is asserted in the writ petition that the petitioner's services were terminated without providing her any opportunity to show cause and without following 3 S.B.CIVIL WRIT PETITION NO.5551/2008 Smt. Krishna Devi. Vs. State of Rajasthan & Anr. the principles of natural justice. Hence, the petitioner has approached this Court by way of the instant writ petition assailing the validity and legality of the order Annex.P/3 terminating her service.
6. Learned counsel for the petitioner vehemently contended that the action of the respondents in terminating the petitioner's services by order Annex.P/3 without providing her an opportunity of hearing and without holding an inquiry, is grossly illegal, arbitrary and unfair. He contended that the petitioner could have been appointed on the post of Safai Karamchari even without resorting to the procedure for compassionate appointment because no particular procedure was prescribed in the Rules for appointment to the post of Safai Karamchari at the time when the petitioner's mother-in-law passed away. He further submitted that the only reason for removing the petitioner from service is the so-called audit objection that the petitioner being a daughter-in-law was not a dependent of late Smt.Sukhali Devi and thus, was not entitled for compassionate appointment. He relied upon the judgment of this Court in the case of Pinki (Smt.) vs. State of Rajasthan & Ors. reported in 2011(4) RLW 3298 (Raj.) wherein this Court considered the scope of term 'dependent' and 4 S.B.CIVIL WRIT PETITION NO.5551/2008 Smt. Krishna Devi. Vs. State of Rajasthan & Anr. held that the term 'daughter-in-law' should be given a wider interpretation and a 'daughter-in-law' should be treated at par with a 'daughter'. The ratio of this Court's judgment in Pinki's case is quoted herein below for the sake of convenience : -
"A daughter-in-law is an important part of in-laws family and she is required to take all care of household. The term "daughter-in-law" itself indicates that she is to be accepted as "daughter" by in-laws. As such, for all purposes, the term "daughter" is wide enough to include "daughter-in-law"."
7. Learned counsel for the petitioner further submitted that though the petitioner is not a widowed daughter-in- law but the fact remains that the petitioner's husband was medically unfit to discharge the duties of a Safai Karamchari and thus, the petitioner was the only person left in the family to be its bread earner and as such, she was rightly given appointment as a Safai Karamchari in place of her mother-in-law. He, therefore, prayed that the writ petition deserves to be accepted and the impugned order be quashed and set aside.
8. Per contra, learned counsel for the respondents vehemently opposed the submissions advanced by the petitioner's counsel and referring to the reply, contended that the appointment of the petitioner in place of her 5 S.B.CIVIL WRIT PETITION NO.5551/2008 Smt. Krishna Devi. Vs. State of Rajasthan & Anr. mother-in-law was illegal. The petitioner was not covered by the definition of the term 'dependent' as postulated in Rajasthan Compassionate Appointment of Dependents of Deceased Government Servants Rules, 1996 (for short, referred to herein after as 'the Rules of 1996'). She submitted that the petitioner's husband was very much alive when the petitioner sought for and was granted compassionate appointment. Thus, only he, in the capacity of a dependent could have applied for the post left vacant upon the death of his mother. She vehemently urged that the petitioner is not even the widowed daughter-in-law so as to claim any advantage of the ratio of the judgment in Pinki's case (supra). She further contended that the petitioner has an alternative remedy available to approach the Industrial Tribunal under the Industrial Disputes Act, 1947 and as such, the instant writ petition is not maintainable and is liable to be dismissed as the petitioner has access to an equally efficacious remedy. She, therefore, prayed that the writ petition deserves to be dismissed.
9. Heard and considered the arguments advanced at the bar and perused the material available on record.
10. Firstly, coming to the objection of the alternate remedy raised by the respondents' counsel. Suffice it to 6 S.B.CIVIL WRIT PETITION NO.5551/2008 Smt. Krishna Devi. Vs. State of Rajasthan & Anr. state that the writ petition was preferred way back in the year 2008 and was admitted on 12.8.2008. Thus, throwing the writ petition out on the ground of availability of an alternate remedy and relegating the petitioner to the Industrial Tribunal at this belated stage would be highly unjust and accordingly, the preliminary objection raised by the State Government is overruled.
11. Now coming to the merits of the case. It was not disputed by the learned counsel for the respondents that at the relevant point of time, in the Rules of 1964, no particular procedure or criterion was prescribed for appointment on the post of Safai Karamchari. For recruitment on the post of Safai Karamchari, a Proviso has been added to the Rule 10 of the Rules of 1964, which is reproduced herein below :-
"परन भग य थ मह र क न य
क क सबध म सव य ज
क य लय स उपय वयक य क ऐस% म वल& म व य ज क
आवशयक ह& ह) थ ररक, सथ क प.न उमम%दव र क
उपयक, पर ववच र कर क पश भर ल& ज य %।"
12. Reference of Safai Karamchari in the Rules is made as Sweepers and Scavengers. As per the Proviso, appointment against such posts was permissible by 7 S.B.CIVIL WRIT PETITION NO.5551/2008 Smt. Krishna Devi. Vs. State of Rajasthan & Anr. examining the eligibility of the concerned candidates. Even calling the names of suitable persons from the Employment Exchange was not required for making such appointments. It is not disputed that the petitioner was suitable for appointment on the post of Safai Karamchari on which her late mother-in-law was working. She was also below the age of 33 years when she was given appointment. As such, simply because the petitioner was given appointment in place of her mother-in-law on compassionate basis, it cannot be assumed that her appointment could not be treated to be a regular appointment in accordance with the Rules of 1964. For all practical purposes, the petitioner would be entitled to be appointed as a Safai Karamchari on regular basis in reference to Proviso to Rule 10 of Rules of 1964 as well. In this regard, it is noteworthy that the appointment order Annex.2 dated 20.6.2003 does not mention that the appointment was afforded to the petitioner under the Rules of 1996. The recommendation on the application submitted by the petitioner mentions that the petitioner was eligible for being appointed on the post of Safai Sewak.
13. A further essential and noteworthy fact remains that the petitioner's specific averment in the writ petition 8 S.B.CIVIL WRIT PETITION NO.5551/2008 Smt. Krishna Devi. Vs. State of Rajasthan & Anr. was that her husband was suffering from asthmatic disease at the time when his mother passed away. The respondents in their reply have offered a bald denial to the said assertion but the denial is of no avail to them. If at all, this fact was to be controverted, then the resolution of the Board in pursuance whereof the petitioner was given appointment, should have been placed on record.
14. This Court while examining the scope of the definition of 'dependent' as set out in the Rules of 1996 in the case of Pinki (supra) held that the daughter-in-law is an integral part of in-laws family and the very term 'daughter-in-law' itself indicates that she is to be accepted as 'daughter' by in-laws. Thus, the term 'daughter' was considered to be wide enough to include and encompass in itself a 'daughter-in-law' as well. Ofcourse, in the said case, this Court was dealing with the case of a widowed daughter-in-law but the fact remains that it is the specific case set up in the writ petition that the petitioner's husband was unable to perform the duties of a Safai karamchari because he was suffering from Asthma. The purpose of treating a widowed daughter-in-law to be equivalent to a widowed daughter while granting compassionate appointment is 9 S.B.CIVIL WRIT PETITION NO.5551/2008 Smt. Krishna Devi. Vs. State of Rajasthan & Anr. that the family should not be left in a state of penury and for this reason, the widowed daughter-in-law was also held to be entitled for appointment in place of her mother-in-law so that she could become the bread earner of the family.
15. Further, as stated above, the petitioner's husband was not in a physical condition to serve in the Municipal Board. Thus, for all practical purposes, the petitioner is the only person in the family who could be the sole bread earner. Thus, taking a pragmatic view, this Court has no hesitation in holding that the petitioner was entitled to be appointed as a Safai Karamchari on compassionate basis in place of her mother-in-law as well. The impugned order thus, cannot be sustained in the light of the aforesaid discussion.
16. There is another reason for which the impugned order Annex.3 cannot be sustained. Admittedly, the petitioner was given regular appointment as a Safai Karamchari against a sanctioned post and was working on the post for almost five years. Her services were terminated by order Annex.3 without providing her any opportunity of hearing and without following the procedure of inquiry prescribed for termination of a permanent government servant as laid down in the 10 S.B.CIVIL WRIT PETITION NO.5551/2008 Smt. Krishna Devi. Vs. State of Rajasthan & Anr. Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958. As such, the impugned order has no sanctity in law and thus, cannot be sustained and deserves to be quashed and set aside.
17. As a result of the aforesaid discussion, the instant writ petition deserves to be and is hereby allowed. The order Annex.3 dated 7.6.2008 is hereby declared illegal and quashed and set aside. The petitioner shall be continued in service as if the order Annex.3 dated 7.6.2008 had never been passed.
18. No order as to costs.
(SANDEEP MEHTA), J.
/S.Phophaliya/