Rajasthan High Court - Jaipur
Shashi Bala vs State Of Rajasthan & Others on 20 September, 2000
Equivalent citations: (2001)ILLJ67RAJ, 2000WLC(RAJ)UC720, 2001(2)WLN145
Bench: Ar. Lakshmanan, A.K. Parihar
ORDER Lakshmanan, CJ.
1. This writ-appeal is preferred by the widow of late Shri Hari Narain Kothari against dismissal of her writ petition No. 1440/2000 by order dated 3.7.2000. The appellant's husband died on 10.11.86 while in government service. He was working as L.D.C. in the Department of Industries. At the time of death of the husband, the appellant was having two minor sons. The appellant being a widow applied for appointment under the Rajasthan Recruitment of Dependents of Government Servants Dying While in Service Rules, 1975 (in short, to be called 'the Rules of 1975' hereinafter) on the post of Class IV after the death of her husband.
(2). At the time of recruitment, no-objection certificate given by one Smt. Chanda Devi the first wife of the deceased Government-servant-was also submitted by the appellant before the Director, Industries who was the Appointing Authority (Annex. 1). The first wife Smt. Chanda Devi had received all the payments of her husband Hari Narain Kothari relating to State Insurance, Gratuity alongwith other pensionary benefits. Vide order dated 21.5.1987 the Director, Industries appointed the appellant under the provisions of the Rules of 1975 as Class IV employee at the District Industries Centre, Sawaimadhopur. Vide order dated 04.06.87 the appellant was appointed to the same post at the District Industries Centre Bundi in place of District Industries Centre, Sawaimadhopur (Annexure 3). The appellant joined the service on 6.6.87 and since then she is continuously working on the said post. She had also applied for and obtained a housing loan of Rs. 84,000/- from the HDFC Bundi and also obtained vehicle-loan of Rs. 12,000/- from the District Industries Centre, Bundi which is to be repaid in instalments.
(3). The respondent No. 3 Director, Industries Department, without issuing any show-cause notice or giving any opportunity of hearing, terminated the services of the appellant u/Annex.4. Being aggrieved, the appellant filed writ petition, contending:
(a) that the order passed terminating her services is against the principles of natural justice;
(b) the appellant being the widow of the deceased and having two minor sons was appointed after receiving the written consent from the other wife in view of the provisions of Rule 7 of the Rules of 1975 and, therefore, her services cannot be terminated after more than 13 years;
(c) the appellant has not concealed the factum of the first marriage and children born to both the wives and she had also obtained the consent-certificate from the other wife which was submitted before the authorities alongwith her application for appointment;
(d) the appellant was provided appointment under the Rules of 1975 by the authority competent to make such appointment;
(e) the appellant has no other source of livelihood to prolong her life and maintain both the children except the present job;
(f) the third-respondent has no authority to recall the order which is passed 13 years ago and the same cannot be questioned after the lapse of 13 years.
(4). The writ petition was opposed by respondents No.1, 3 and 4 by filing reply. It was contended:
(a) that the appellant cannot claim herself as widow of late Hari Narain Kothari as undisputedly the deceased had earlier married one Chanda Devi and had not sought any divorce from her and, therefore, during the subsistence of the earlier marriage the second marriage was contracted which was void under the provisions of Sections 5 and 11 of the Hindu Marriage Act and the appellant cannot be treated as widow of the deceased government servant;
(b) the appellant cannot be included in the definition of 'family' as defined under the rules;
(c) no-objection certificate given by the first wife could not give any right to the appellant for appointment under the Rules of 1975 as only a family member of the deceased government servant is entitled for consideration for appointment under the rules;
(d) under the rules only the legally married wife left behind by the deceased government servant is entitled to the benefit and only the widow is entitled for consideration of appointment;
(e) audit-objection, in the audit of the year 1998-99, was taken by the Accountant General of Rajasthan that payment of salary to the appellant was not permissible as she was not the legally wedded wife of the deceased government servant and legally wedded wife Smt. Chanda Devi was alive and was being given the pensionary benefit; and under such circumstances the appellant is not entitled to the benefit of appointment as the widow of the deceased when the legally wedded wife of the deceased was alive;
(f) before termination of the services no notice was required to be given to the appellant-petitioner because of the fact that there was no dispute or evidence to be collected in this regard;
(g) the answering-respondents are within their rights to recall the order of such appointment and pass the impugned order as the appellant cannot claim the benefit which has been given to her wrongly in violation of the provisions contained in the Rules of 1975; and the appellant is not entitled to continuation of her services as her initial appointment was only in violation of the rules.
(5). A rejoinder was filed by the appellant to the reply filed on behalf of the respondent. The learned Single Judge of this Court dismissed the writ petition on the ground that before instituting the writ petition the appellant has not served a notice for demand of justice and, therefore, the writ petition is incompetent. According to the learned Single Judge, the appellant was given compassionate appointment in violation of the provisions of the Rules of 1975 as the alleged marriage of the appellant with the deceased government employee was void under the provisions of Sec.5 and 11 of the Hindu Marriage Act, the same being contracted during the subsistence of the first marriage. The writ petition was also dismissed on the ground that the impugned order was passed after thorough enquiry. Aggrieved by the above judgment, the appellant has preferred the present appeal.
(6). We heard Mr. R.P. Garg for the appellant and Mr. Amod Kasliwal for the respondents. Mr. R.P. Garg, in support of his contention placed reliance upon various rulings. The Government Pleader, on the other hand, relied on judgments reported in Smt. Yamunabai Anantrao Adhav vs. Anantrao Shivram Adhav & Another (1) and State of M.P. & Others vs. Shyama Pardhi & Others (2).
(7). The factum of second marriage is not in dispute and the children born to the deceased government employee by the appellant is also not in dispute. It is also not disputed that the compassionate appointment was given to the appellant on the basis of no-objection certificate given by the first wife for consideration of the name of the appellant for appointment to the post of Class IV employee. It is also admitted that the first wife has received all the pensionary benefits such as State Insurance. Gratuity and other pensionary benefits. The appointment was made on 21.5.87 by the Director, Industries Department, Jaipur and for last 13 years the appellant is continuously in service as Class IV employee in the office of the District Industries Centre, Bundi. It is also not disputed that the appointment in question was made in the year 1987 as contemplated in the Rules of 1975. It is the specific contention of the appellant that without issuing any notice or affording any opportunity of hearing the third-respondent vide order dated 31.3.2000 has terminated the appellant's services. However, it is contended by the respondents that no show cause notice need be served on the appellant before termination. It is mentioned in the reply that the services of the appellant was terminated by the third-respondent on the basis of the audit-objection which was taken in the year 1998-99 by the Accountant-General, Rajasthan that the payment of salary to the appellant was not permissible as the appellant was not the legally wedded wife/widow of the deceased government servant since the widow of the deceased government servant Smt. Chanda Devi was alive and was being given pensionary benefits.
(8). In the above back-ground we shall now consider the case of the appellant and contesting respondents as to whether the termination of services of the appellant is just and proper as the appellant has been made contrary to the rules. The learned Government Pleader placed before us the audit-objection in Hindi and also provided an English translation. The English translation provided to the Court reads as follows:
"Smt. Shashi Bala (Class IV) was appointed by order of the Directorate of Industries bearing No. F.4(GAD/Ind/85/part-II dt. 4.6.87 as being a dependent of the deceased Govt. servant Harinarain Kothari, L.D.C. In the enquiry of the service record of District Industries Centre, Bundi, relating to Smt. Shashi Bala it was found that letter No.F confidential C-R-15 dated 6.12.89 was written to the Directorate of Industries as to under what circumstances appointment has been given to Smt. Shashi Bala. This is a matter of enquiry. Smt Shashi Bala is the second wife of the deceased Hari Narain whose first wife is alive and in whose favour pension has been sanctioned whereas Smt. Shashi Bala who is serving in the Department and who is the second wife of the deceased Govt. servant has been given appointment in the State service as a dependent of the deceased.
There is no rule in the Rajasthan Service Rules whereby pension can be given to the first wife and appointment can be given to another wife. As such the appointment given to second wife is illegal. Smt. Shashi Bala has been paid the following salary and allowance:
Year Amount 87-88 9-130.00 88-89 11,902.00 89-90 13,208.00 90-91 14,366.00 91-92 16,363.00 92-93 18,532.00 93-94 20,253.00 94-95 22,738.00 95-96 26,006.00 96-97 30,456.00 97-98 5442.00 98-99 42,188.00 Total:
2,31,004.00 The audit has raised the following objections:
(1) Why and under what circumstances Smt. Shashi Bala has been given the appointment when the first wife of the deceased Govt. servant was/is alive requires an enquiry against the officer who has given her appointment.
(2) For reqularisation of the salary and allowances necessary sanction be obtained from the Secretary Deptt. of Personal, Jaipur.
In respect of the afore said Audit letter was issued. By oral reply it has been informed that the appointment has been given by the competent authority. Since the matter relates to the Directorate, the Director Industries Deptt. be informed for necessary action."
Annexure-1 to the writ petition which is in Hindi is dated 20.3.87. English translation thereof provided to the Court reads as follows:
"To Respected Director Mahodayji Udhyog Bhawan, Jaipur Respected Sir, In connection with the above subject whatever amount of insurance, gratuity, pension of late Shri Harinarain Kothari be give to me, Chanda Devi W/o late Shri Harinarain Kothari, so that I can maintain my three children and the service be given to Sasi Bala, wife. I, Chanda Devi have no problem in it. This true statement is being written on 20.3.87. Whatever contribution has been collected from Udhyog Bhawan, Jaipur be shared half half between the two wives.
Sd/-
(Chanda Devi)"
(9). In this case, the appointment was made under Rules 2(f) and 7 of the Rules of 1975. Rule 2(f) deals with 'family' in the following terms:
(f) "Family" means the family of the deceased Government Servant and shall include wife or husband, sons and married or widow daughters and son/daughter adopted according to the provisions of law by the deceased Government Servant, who were dependent on the deceased Government servant;
Provided that if no such member of the family be eligible for getting benefit under these Rules, the benefit available under these Rules may be extended to any other close relative of the deceased to be named by the widow of the Guardian of the children of the deceased with the specific approval of the Deptt. of Personnel."
Rule 7 deals with the procedure when more than one member of the family seek employment. It reads as follows:
"If more than one member of the family of the deceased Government servant seeks employment under these Rules, the Head of Department/Office shall decide about the suitability of the person for giving employment. The decision will be taken keeping in view also the overall interest and the welfare of the entire family particularly the widow and the minor members thereof."
(10). The appointing authority in this case has issued the order of appointment after taking on record the letter of consent with the application and has granted the benefit of employment to the appellant with a view to give immediate help to the minor children to the deceased and granted other pensionary benefits like State-insurance, gratuity and pension to the first wife Smt. Chanda Devi. In our view, the Head of Department has taken the decision keeping in view, the overall interest and welfare of the family members of the deceased government servant. It is not in dispute that both the widows of the deceased government servant are alive and number of children were given birth by both of them. In this case pursuant to the appointment made in the year 1987 the appellant has actually worked as Class IV employee and has earned her salary, therefore, the payment of salary paid to the government-servant for actual services rendered by her cannot be faulted in any manner, that too, by the audit-objection of the year 1998-99 and the termination of services of the appellant was also made without affording any opportunity. It is not the case of the Department that the appellant had secured her appointment by concealment of any fact from them. The definition of 'family' includes the wife or husband, sons and married or widow daughters and son/daughter adopted according to the provisions of law who were dependant upon the deceased Government servant.
(11). Proviso to Rule 2(f) of the Rules of 1975 provides that if no such member of the family be eligible for getting the benefit, the benefit available to them be extended to any other close relative of the deceased to be named by the widow or guardian of children of the deceased with the specific approval of the Department of Personnel. In this case, though the firs! wife was eligible for getting the benefit of appointment under the rules she gave her consent for compassionate appointment under these rules to the second wife who is also a close relative of the deceased. This apart, widow/ first wife gave no-objection certificate for such appointment by her no-objection letter which was approved and accepted by the Department and the appointment was made. The proviso contemplates extension of the benefit available under these Rules even to any other close relative to be named by the widow. Since the name of second wife has been named by the widow/first wife, we are of the view that the appointment has been properly given by the appointing authority by correctly considering the provisions of the law. Rule 7 authorises the appointing authority viz., the Head of Department to decide about the suitability of the person for giving appointment and that decision was to be taken keeping in view also the overall interest and welfare of the entire family particularly the widow and minor members thereof. In the instant case, the appointing authority after analysing the entire situation made the appointment in question keeping in view the overall interest and welfare of the dependants of deceased government servant Hari Narain. When the authority competent to make such appointment and also competent to decide about the suitability of the person for giving appointment look decision in favour of the appellant for giving her the employment, such decision cannot be questioned after a long lapse of 13 years in the facts and circumstances of the case and since the appointment being of beneficial nature and on compassionate ground the decision of the competent authority cannot now be called in question by the Audit Department which was in deep slumber for 13 years and services of the appellant could not be terminated on the basis of the audit-objection.
(12). The Hon'ble Supreme Court in the ruling reported in H.C. Puttaswamy & Others vs. The Hon'ble Chief Justice of Karnataka High Court. Bangalore & Others (3), held that persons appointed by the Chief Justice of Karnataka High Court who were in service for past 10 years should be allowed to continue on humanitarian ground. In that case, the Chief Justice of Karnataka High Court had, without consulting the Public Service Commission, made appointments of graduates, double-graduates and post-graduates as against the minimum qualification of S.S.L.C. required for second-division Clerks. The Supreme Court held that though the appointments were not proper, however, it directed the appointees to be treated as regularly appointed on-humanitarian ground. In that case, the Supreme Court observed that though the methodology adopted by the Chief Justice was manifestly wrong and it was doubtless deviation from the course of law which the High Court has to protect and preserve, however, considering the human- problem which motivated the Supreme Court to review the petitions, passed the order permitting them to continue by taking a humanitarian approach. According to the Supreme Court, the appointees viz., the appellants deserved justice ruled by mercy.
(13). The Division Bench of the Rajasthan High Court, in the judgment reported in Raj, Husing Board vs. Ratan Lal Sharma (4) had observed that the respondent, in that case, was appointed as Personal Assistant of the Chairman of the Rajasthan Housing Board and continued in the service of the Board and, therefore, in the facts and circumstances of the case he deserved to be retained in the service of the Board. It was also pointed out that so far as respondent's work performance and efficiency were concerned nothing has been pointed out against him by the Board and, on the contrary, the record shows that the respondent had rendered efficient service and he has been testified as a dedicated worker with sense of devotion to duty. He deserved to the regularised on some suitable post.
(14). In Roshni Devi & Others vs. State of Haryana & Others (5) the Supreme Court was considering a similar case wherein the legality of the decision passed by the Full Bench of Punjab & Haryana High Court and directions given thereunder were challenged. The matter relates to recruitment to the posts of clerk. The Selection Board received requisitions from different Departments of the Government for total number of 662 posts. Advertisement which had been issued inviting applications from the candidates did not, however, indicate the number of vacancies. The Service Selection Board conducted written-test and selected 5373 candidates and recommended 1692 candidates to different Departments. While making such recommendation, the candidates were not sent according to their merit but random. After appointment of these 1692 candidates persons occupying higher position in the merit-list who did not receive any letter of appointment approached the High Court by filing writ petition which was allowed by the High Court. The High Court directed that without disturbing the appointments already made all future appointments shall be made from the same list and the selection- list prepared by the Service Selection Board would not lapse. When the writ petition was placed before the Division Bench, the Bench was confronted with the earlier decision of the High Court in Sudesh Kumari's case. The matter was, therefore, referred to the Full Bench. The Full Bench issued number of directions observing that the Selection Board could not make selections in excess of the number of posts for which requisitions had been sent to it and the waiting list prepared by the Board has to be confined to the number prescribed by the Government; and the selected candidates do not have any indefeasible right to be appointed to the posts for which they have been selected. The effect of the aforesaid directions not only wiped off the accrued right of the parties pursuant to the judgment of the High Court but also even those who had been appointed and their appointment had not been annulled would be liable to lose their job if they do not come within the number of posts for which requisition had been placed.
The Full Bench judgment was challenged before the Supreme Court and the Supreme Court observed that persons who may not have been appointed strictly in accordance with law have been appointed and continued in service for more than 9 years, therefore, in the facts and circumstances of the case, bearing in mind the equity in favour of those who have already been appointed from out of the list prepared and have served for more than 9 years and issued directions in substitution of the directions made by the Full Bench, slating that the appointments already made from out of the list prepared will not be annulled and disposed of the appeals with other consequential directions.
(15). Another Division Bench of our High Court (M.P. Singh, J. and A.K. Parihar. J). in Smt. Kuntha Devi & Another vs. State of Rajasthan & Others (6), had occasion to deal with a similar case of compassionate appointment. In that case, the Division Bench was considering Rule 2(f) and Rule 5 of the Rules of 1975. Speaking for the Bench, Hon'ble A.K. Parihar, J; observed as follows:
"In our considered view, both the above rules are not applicable in the facts and circumstances of the present case. In the definition of family, it is clear that the adoption has to be made by the deceased Government servant himself according to the provisions of law. In the present case, the deceased Government Servant died way back on 24.12.1976 whereas adoption took place by the wife of the deceased Government Servant after a lapse of about 14 years. Furthermore, even as per proviso to the definition of family, the widow of the deceased Government Servant can nominate any other close relative of the deceased if no other member of the family as provided under the definition of family, is eligible for getting benefit under the Rules."
(16). Per contra, the learned counsel for the respondents invited our attention to 3 rulings of the Supreme Court. He relied on para 14 in the judgment reported in The Martin Burn Ltd. vs. The Corporation of Calcutta (7), which runs thus;
"A result flowing from a statutory provision is never an evil. A Court has no power to ignore that provision to relieve what it considers a distress resulting from its operation, A statute must of course be given effect to whether a Court likes the result or not."
He next relied on State of M.P. & Others vs. Shyama Pardhi & Others (supra). That was a case of selection of persons not possessing the pre-requisite qualifications prescribed by statutory rules. The Supreme Court held that absence of statutory qualification has rendered the selection illegal. The third decision relied upon by learned counsel for the respondents is reported in Smt. Yamunabai Anantrao Adhav vs. Anantrao Shivram Adhav & Another (supra). In that case, the Supreme Court held that the marriage of woman with man already having living spouse has no legal sanctity. It stands as nullity and such woman is not entitled to maintenance. Placing strong reliance on the above pronouncements, the learned counsel for the respondents submitted that since the marriage itself was a nullity the appellant cannot claim appointment on compassionate ground and this Court must construe the statute/rule in proper perspective and the statute must be given effect to whether this Court likes the result or not.
(17). We have already interpreted the rules in our discussion in paragraph supra and we have expressed our opinion in regard to the appointment made. We have already referred to the judgment rendered by the Supreme Court (in AIR 1991 SC 295) (supra) in regard to the appointments made by the Chief Justice of that High Court. In that case, the Supreme Court was considering the case of appointment made by the Chief Justice of the High Court without consulting the Public Service Commission on review petition filed by the appointees. The Supreme Court observed that all such persons appointed by the Chief Justice were in service for more than 10 years and some of them in the normal course have been promoted to higher grades also and some of them are over-age for entry into other services and most of them cannot get the benefit of age-relaxation therefore, they could not be asked to appear for written-text and viva voce to be conducted by the Public Service Commission for their fresh selection. Therefore, on humanitarian ground, the Supreme Court treated all these persons as regular appointees with all benefit of past service though the Supreme Court observed that the methodology which was adopted by the Chief Justice was manifestly wrong and it was doubtlessly deviation from the course of law. However, taking into consideration the circumstances of the case, the Supreme Court felt that humanitarian approach should be adopted observing that the appointees/appellants seem to deserve justice ruled by mercy. In the result, the Supreme Court allowed the appeals and directed the respondent-State to treat them as regular appointees with all the benefits of past service.
(18). Another Division Bench of our High Court in the judgment reported in Bhupal Singh vs. State of Rajasthan (8) held that person selected by the competent Selection Committee and appointed by the competent authority has a constitutional right to remain in service and he cannot be deprived of this right and his services cannot be terminated to the ground of irregularity or mistake committed by either Selection Committee or appointing authority. In N.S.K. Nayar & Others vs. Union of India & Others (9), the Supreme Court was considering the case of appointees continuing in service for 10 to 15 years though appointed under the rules providing for officiating appointments to meet administrative exigency for short tenure. A1 para 5, the Supreme Court observed as follows:
"The object of having Rule 27(b) of the Rules is to provide a source of appointment to meet an administrative exigency of short tenure. It could never be the intention of the framers of the Rule to permit the appointments under the said Rule to go on for 10 to 15 years. The appointments for such a long period cannot be considered to be purely temporary/officiating or to hold charge. Taking work out of the petitioners in the STS posts for 10/15 years and denying them the right of regularisation and the consequent benefits in the said grade, is wholly arbitrary and is violative of Art. 16 of the Constitution of India."
(19). For the foregoing reasons, we allow the appeal and set aside the order of the learned Single Judge. The appellant had the benefit of stay during the pendency of appeal and, in view of the order now passed, the appellant shall be entitled to continue in service.