Rajasthan High Court - Jodhpur
Gopal Singh Chouhan vs Rajasthan High Courh Jodhpur on 24 July, 2019
Bench: Sangeet Lodha, Vinit Kumar Mathur
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Civil Writ Petition No. 11892/2018
Gopal Singh Chouhan S/o Shri Shyam Lal, Aged About 22 Years,
Byecaste Chouhan, Durga Das Colony, Baldeo Nagar, Street No.
3, Masuria, Jodhpur (Rajasthan)
----Petitioner
Versus
1. Rajasthan High Courh Jodhpur, Through Registrar
General, Rajasthan High Court, Jodhpur (Rajasthan)
2. The Registrar (Administration), Rajasthan High Court,
Jodhpur
----Respondents
For Petitioner(s) : Mr. Mahendra Singh Godara
For Respondent(s) : Mr. Kuldeep Mathur
HON'BLE MR. JUSTICE SANGEET LODHA
HON'BLE MR. JUSTICE VINIT KUMAR MATHUR Judgment 24/07/2019
1. In this writ petition, the petitioner has questioned legality of the decision of the respondent-Rajasthan High Court, in rejecting his application seeking appointment on compassionate ground under the provisions of Rajasthan Compassionate Appointment of Dependents of Deceased Government Servant Rules, 1996 ('the Rules of 1996').
2. The petitioner's father Shri Shyam Singh Chouhan, who was employed on the post of Judicial Assistant in Rajasthan High Court died while in service on 6.1.10. After his death, the petitioner's mother made an application to the respondent, whereby expressing her unwillingness for appointment on compassionate ground submitted that her son who is minor may be accorded (Downloaded on 01/09/2019 at 11:56:51 PM) (2 of 10) [CW-11892/2018] appointment on compassionate ground on his attaining the age of majority. Accordingly, she prayed that her application seeking appointment on compassionate ground may be kept pending till his son attains the age of majority.
3. The Registrar (Administration) of the High Court vide communication dated 26.2.10 informed the petitioner's mother that since the petitioner has not attained the age of majority, his candidature cannot be considered for appointment on compassionate ground and the application also cannot be kept pending till he attains the age of majority. The petitioner made further representations, but to no avail. The Registrar (Administration) of the High Court vide yet another communication dated 9.6.16 reiterated the decision of the High Court that the petitioner is not entitled for appointment under compassionate ground under the Rules of 1996 read with Rajasthan High Court Staff Service Rules, 2002 ('the Rules of 2002').
4. Aggrieved by the decision of the High Court in declining the appointment on compassionate ground under the Rules of 1996, the petitioner preferred a writ petition being D.B. Civil Writ Petition No.9411/16, before this Court, which was withdrawn by the petitioner stating that he desires to submit representation to the respondents.
5. The petitioner made a representation on 23.9.16. The High Court vide communication dated 27.10.16 informed the petitioner that his representation has been considered and filed. Aggrieved by the same, the petitioner preferred a writ petition being S.B. Civil Writ Petition No.14300/16, before this Court, which was disposed of by the learned Single Judge with the direction to the (Downloaded on 01/09/2019 at 11:56:51 PM) (3 of 10) [CW-11892/2018] respondents to consider the case of the petitioner and pass speaking order giving detail reason and dealing with the all the grounds raised by the petitioner in his fresh representation.
6. The representation made by the petitioner pursuant to the direction issued by the learned Single Judge as aforesaid, stands rejected by the High Court vide communication dated 16.5.18, giving detail reasons for rejection of the petitioner's claim for appointment on compassionate ground under the Rules of 1996 read with Rules of 2002. Hence, this petition.
7. Learned counsel appearing for the petitioner contended that the action of the respondents in rejecting the claim of the petitioner on the ground of delay in submitting the application is not sustainable in the eyes of law inasmuch as, the petitioner had made the application immediately after attaining the age of majority. Learned counsel submitted that admittedly, the petitioner's mother had made an application to the respondents immediately after the death of petitioner's father praying that the consideration of the application may be kept pending till the petitioner attains the age of majority and thus, viewed from any angle, the application could not have been rejected on the ground of delay. Learned counsel submitted that under Rule 14 of the Rules of 1996, the Chief Justice is empowered to issue appropriate order for proper implementation of the provisions of the Rules of 1996. That apart, under the Rules of 2002, the Chief Justice in case of undue hardship is empowered to relax the rules in exceptional cases and thus, without considering the claim of the petitioner objectively, the order passed by the Chief Justice declining to relax the rules is not justified. Learned counsel urged that after the death of the petitioner's father, there being no (Downloaded on 01/09/2019 at 11:56:51 PM) (4 of 10) [CW-11892/2018] earning member, the family is suffering great hardship and therefore, the respondents were expected to take a sympathetic view in the matter.
8. On the other hand, the counsel appearing for the respondents submitted that under the Rules of 1996, which are adopted by the High Court for the purpose of compassionate appointment does not provide for keeping the application of the dependent of deceased Government employee pending till he attains the age of majority rather, in terms of Rule 10(3) of the Rules of 1996, the application is required to be made within the time of limit of 90 days from the death of the Government servant. Learned counsel urged that as on 19.1.10 when the petitioner's mother made the application, the petitioner was 13 years and 8 months of age and therefore, being underage, he was not found eligible for compassionate appointment. It is submitted that the employment could have been offered to the petitioner's mother but she declined the appointment stating that service by the ladies in their family is prohibited. Learned counsel submitted that the Rules of 1996 does not permit the consideration of the case of the dependent of the deceased employee at later stage when he attains the age of majority and thus, the rejection of the application of the petitioner cannot be faulted with. Learned counsel urged that Rule 14 of the Rules of 1996 does not provide for relaxation of the rules as such rather, it empowers the Government to issue appropriate order in case of difficulty in implementing any rule incorporated and thus, on the strength of the rules, the petitioner cannot claim relaxation. Learned counsel submitted that the power of the Chief Justice under the Rules of 2002 cannot be invoked in the matter of compassionate (Downloaded on 01/09/2019 at 11:56:51 PM) (5 of 10) [CW-11892/2018] appointment under the Rules of 1996. That apart, the power of relaxation incorporated in the Rules of 2002 is restricted only in case where the operation of Rules of 2002 relating to age or regarding requirement of experience for recruitment causes undue hardship and therefore, the petitioner cannot claim the relaxation of the rules as a matter of right.
9. We have considered the submissions of the learned counsel for the parties and perused the material on record.
10. Indisputably, the appointment on compassionate ground to the dependents of deceased High Court employee is governed by the Rules of 1996. As per Rule 8 of the Rules of 1996, a person seeking compassionate appointment must have attained 18 years of age at the time of making the application. The time limit prescribed for making the application under Rule 10(3) is 90 days from the death of the employee. Admittedly,as on the date of making application, the petitioner being of the age of 13 years and 8 months was not eligible for appointment. The mother of the petitioner who could have been considered for appointment on compassionate ground under the Rules of 1996 specifically declined to accept the appointment on compassionate ground and thus, on the facts and in the circumstances of the case, when there was nobody in the family of the deceased employee who could be offered appointment, the respondents were justified in rejecting the application which could not have been kept pending till the petitioner attains the age of majority. It is pertinent to note that the Rules of 1996 does not make entitle the member of the family of the deceased employee to make an application at the later stage when he attains the age of majority. As a matter of fact, prior to framing of the Rules of 1996, the appointment on (Downloaded on 01/09/2019 at 11:56:51 PM) (6 of 10) [CW-11892/2018] compassionate ground was governed by Rajasthan (Recruitment of Dependents of Government Servants Dying while in service) Rules, 1975, there was a specific provision incorporated whereunder the dependent if he was minor at the time of death of the government servant, was entitled to make an application seeking appointment on compassionate ground on attaining the age of majority. The Rules of 1975 stands repealed by virtue of Rule 15 of the Rules of 1996, however, no such provision is incorporated therein. Thus, the intention of the rule making authority is very clear and therefore, under the Rules of 1996, the dependent of the government servant cannot claim deferred consideration on his attaining the age of majority.
11. The Rules of 1996 does not provide for relaxation of the Rules. Rule 14 relied upon by the petitioner only empowers the Government to issue the order for the removal of the difficulties in implementing the rules which cannot be construed to be the power authorising relaxation of the rules. The Rules of 2002 framed by the High Court regulating the recruitment and other conditions of service of the persons serving on the establishment of Rajasthan High Court has nothing to do with the appointment on compassionate ground which are obviously dehors the regular recruitment rules i.e. the Rules of 2002 and thus, the question of the Chief Justice invoking the Rule 30 of the Rules of 2002 so as to facilitate the appointment of the petitioner on compassionate ground does not arise. In any case, the relaxation of the rules cannot be claimed as a matter of right. In this view of the matter, the case set out by the petitioner is absolutely devoid of any merit.
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(7 of 10) [CW-11892/2018] 12. There is yet another aspect of the matter. The scheme for
appointment on compassionate ground is framed so as to extend an immediate succor to the bereaved family of the deceased government servant, who has died in harness. The appointment on compassionate ground, an exception carved out to the relevant recruitment rules governing the public employment to meet particular contingency, cannot be claimed as a matter of right.
13. In the matter of "Umesh Kumar Nagpal Vs. State of Haryana", [1994(4) SCC 138], Hon'ble Supreme Court has observed that "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 Hon'ble Court has further observed that "the compassionate employment cannot be granted after a lapse of a reasonable period which must be specified in the rules. 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."
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14. In "State of J&K vs. Sajjad Ahmed Mir", 2006(5) SCC, 766, the Hon'ble Apex Court observed as under :
"11. We may also observe that when the Division Bench of the High Court was considering the case of the applicant holding that he had sought "compassion", the Bench ought to have considered the larger issue as well and it is that such an appointment is an exception to the general rule. Normally, an employment in the Government or other public sector should be open to all eligible candidates who can come forward to apply and compete with each other. It is in consonance with Article 14 of the Constitution. On the basis of competitive merits, an appointment should be made to public office. This general rule should not be departed from except where compelling circumstances demand, such as, death of the sole breadwinner and likelihood of the family suffering because of the setback. Once it is proved that in spite of the death of the breadwinner, the family survived and substantial period is over, there is no necessity to say "goodbye" to the normal rule of appointment and to show favour to one at the cost of the interests of several others ignoring the mandate of Article 14 of the Constitution." (Emphasis supplied)
15. Similarly, in Jagdish Prasad Vs. State of Bihar, (1996 (1) SCC
301) the Hon'ble Supreme Court opined as under :
"The very object of appointment of a dependent of the deceased employees who die in harness is to relieve unexpected immediate hardship and distress caused to the family by sudden demise of the earning member of the family. Since the death occurred way back in 1971, in which year the appellant was four years old, it cannot be said that he is entitled to be appointed after he attained majority long (Downloaded on 01/09/2019 at 11:56:51 PM) (9 of 10) [CW-11892/2018] thereafter. In other words, if the contention is accepted, it amounts to another mode of recruitment of the dependent of a deceased Government servant which cannot be encouraged dehors the recruitment rules." (emphasis supplied)
16. Relying upon the aforesaid decision of the Hon'ble Supreme Court in Jagdish Prasad's case, a Division Bench of this Court in 'Shambhu Puri Vs. State', 2003 WLC (Raj.) 404, opined as under :
"9. However, we are of the opinion that this Court would not issue a writ of mandamus in view of the aforesaid decision of the Supreme Court in Jagdish Prasad's case (Supra), which is more nearer to him to the case at hand. Compassionate appointment to be offered to a dependent of the deceased Government employee who dies in harness is not a vested right and his appointment cannot be kept waiting if he is minor, till he gets the age of maturity, whatever may be the intervening period, the object of the compassionate appointment as an under exception to general rule is to tide over the immediate crisis which arises on account of the death of the breadwinner of the family and it ceases to exist with the passage of time and the difficulty, it any, faced by the family, becomes at par with the difficulty faced by any other family who too is in search of employment for any of the members. In such cases, no preferential treatment other (sic) the Rules of 1996 can be given."
17. Thus, it is settled law that the appointment on compassionate ground dehors the relevant recruitment rules is offered to the dependent of deceased government servant to tide over the sudden crisis which arises on account of sad demise of breadwinner of the family, therefore, no one can claim the (Downloaded on 01/09/2019 at 11:56:51 PM) (10 of 10) [CW-11892/2018] appointment on compassionate ground at any time in future after the crisis period is over.
18. Adverting to the facts of the present case, it is to be noticed that the petitioner's father had died in the year 2010 when the petitioner was only 13 years and 8 months of age. By this time, the petitioner has attained the age of about 23 years, therefore, at this belated stage, when the crisis period is already over, the question of petitioner being accorded appointment on compassionate ground does not arise. Such consideration at this belated stage would be against the very object and spirit of the scheme of compassionate appointment underlying the Rules of 1996.
19. In view of the discussion above, viewed from any angle, the petitioner is not entitled for the relief as prayed for.
20. In the result, the petition fails, it is hereby dismissed. No order as to costs.
(VINIT KUMAR MATHUR),J (SANGEET LODHA),J
44-Aditya/-
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