Rajasthan High Court - Jaipur
Pritam Singh vs State Of Rajasthan And Ors. on 7 August, 1995
Equivalent citations: 1995(3)WLC659, 1995(2)WLN354
JUDGMENT N.L. Tibrewal, J.
1. The petitioner, who is son of the deceased Government-servant, has approached this Court under Article 226 of the Constitution of India for issuance of a writ of mandamus/direction to the respondents to provide him suitable employment on the post of Lower Division Clerk or Store-Munshi or Store-Keeper or any other equivalent post in regular pay-scale as per Rule 5 of the Rajasthan Recruitment of Dependants of Government-servants Dying While in Service Rules, 1975 (hereinafter to be referred to as the Rules of 1975).
2. There is no gain-saying that the Rules of 1975 are intended to provide Social Security and to mitigate the hardship due to death of the bread-earner of the family. Under the Rules employment is provided to one member of the family on compassionate grounds. Rule 5, therefore, mandates that suitable employment in Government-service, on making an application for this purpose, be given without any delay and that, too, in relaxation normal recruitment rules. In the case of Smt. Sushma Gosein and Ors. v. Union of India and Ors. , the Apex Court of the country has laid down that in all claims for appointment on compassionate grounds there should not be any delay in the appointments in order to redeem the family in distress. The Court has gone to the extent that if there is no suitable post for appointment, supernumerary post should be created to accommodate the applicant. Inspite of all these, the case of the petitioner has not been considered with such promptitude and in a spirit the Rules have been made.
3. Before filing the present writ petition, the petitioner approached to the Secretary, State Legal Aid Board, Jaipur to get his grievance redressed. At pains and stress, it may be stated that the Chief Engineer, Public Works Department, Jaipur respondent No. 2, neither acknowledged nor replied to the various letters written by the Secretary, State Legal Aid Board, Jaipur. One should not forget that State Legal Aid Board is a statutory body and it provides free legal aid to needy persons and also takes steps for the removal of their grievances. Had the case of the petitioner been considered atleast on the communication made by the Secretary State Legal Aid Board, this further litigation could have been avoided.
4. Be this as it may. In order to appreciate the controversy involved in the case, necessary facts may be given:
The petitioner's father, late Shri Himmat Singh, was in service of the respondents as a Driver in Mechanical Division, Public Works Department, Jaipur. He was appointed in the year 1945 and after putting a long service, he expired on May 15, 1994 while in service. Thereafter, petitioner's mother submitted an application in the prescribed proforma, alongwith her affidavit, to provide appointment to her son under the Rules of 1975. The application was submitted on 31.5.1995 to the Assistant Engineer, Mechanical Sub-Division-V Public Works Department, Jaipur. However, it took more than six months to decide the matter and the petitioner came to be appointed as a casual daily-rated labour at the rate of Rs. 22/- per day vide order dated 1.12.94 issued by the Executive Engineer. The grievance of the petitioner is that he was qualified for appointment to the post of a L.D.C. or/Store-Keeper or Store-Munshi, as he has passed Senior Secondary Examination in 1992 and his appointment as casual daily rate worker is not a suitable employment Under Rule 5. According to him, the daily wages received by him was not sufficient to support him, his old ailing mother and other family members, namely, his real younger brother and sister who are still school going minors. That he, being in great financial stress and having no other means of livelihood, accepted the appointment which was offered to him, but he went on in putting his grievance to the Executive Engineer, Chief Engineer by way of several representations with a request to provide him suitable employment as per Rule 5. When no attention was paid to his representation, he submitted an application to the Secretary, State Legal Aid Board, Jaipur to help him in getting justice. The Secretary, State Legal Aid Board, then, wrote a letter on December 22, 1994 to the Chief Engineer, Public Works Department, Jaipur, highlighting the grievance and claim of the petitioner with a request to provide him a suitable employment as per his qualifications and eligibility. It was also stated in the letter that in case justice is not met to him, a writ petition shall be filed before this Court for seeking redress. Then, a reminder was sent on 17.1.1995 by the Secretary, but they were not even acknowledged. The petitioner being entitled to get free legal aid, the present petition has been filed by him and the cost of litigation has been borne out by the State Legal Aid Board.
5. In the return the respondents have not disputed the factual position narrated by the petitioner. However, the plea taken in support of their action is that the petitioner was entitled to get appointment on daily wage basis on the post of a Helper as per Circular, dated 2.5.92, issued by the Deputy Secretary to the Government, Public Works Department.
6. On the pleadings of the parties, a shot, but crucial question which requires consideration in this petition is as to whether, in the facts and circumstances of the case, the appointment of the petitioner as a casual daily rates workman/Helper is in-consonance with Rule 5 of the Rules of 1975 ? It is not disputed by the respondents that the petitioner is entitled to get employment under the Rules of 1975 being the son of a deceased Government servant.
7. The Rules of 1975 have been framed by the State Government in exercise of powers conferred by proviso to Article 309 of the Government of India. As stated earlier, these rules have a social welfare object behind it and are intended to mitigate the hardship of the family on death of the bread-earner of the family by providing appointment to one member of the family on compassionate grounds. These rules, therefore, should be interpreted for the benefit of the dependents of a deceased Government-servant. By virtue of Rule 4, the Rules of 1975 and any orders issued thereunder have a over-riding effect notwithstanding anything to the contrary contained in any other Rules, Regulations or Orders in force at the commencement of these Rules. Then, Rule 5, the interpretation of which is needed to solve the controversy, runs as under:
5. Recruitment of a member of the family of the deceased.- In case of "deceased Government Servants" one member of his family who is not already employed under the Central/State Government or Statutory Board/Organisations[Corporations owned or controlled by the Central/State Government shall on making an application for the purpose, be given a suitable employment in Government Service without delay only against an existing vacancy which is not within the purview of the State Public Service Commission, in relation of the normal recruitment rules, provided such member fulfils the educational qualifications prescribed for the post and is also, otherwise qualified for Government-service. In the event of non-availability of unqualified or minor is not found suitable or eligible for immediate employment, then such cases should be considered immediately on the availability of the post or any of them becomes qualified or eligible for such employment under these Rules:
Provided that recruitment may be made on posts which are within the purview of the Rajasthan Public Service Commission, except the major State Services mentioned in Rule 3 where the Appointing Authority is satisfied in consultation with the Department of personnel and the Rajasthan Public Service Commission that a dependent of a deceased Government servant is qualified and suitable for appointment to such post.
8. A perusal of the aforesaid rule would show that in cases of Government-servants who die while in service on or after the commencement of these rules, one member of their family, who is not already employed under the Central/State Government or Statutory Board/Organisation/Corporations owned by the Central/State Government shall, on making an application for the purpose, be given a suitable employment in Government Service without delay in relaxation of the normal recruitment rules. It is also clear from the Rule that suitable employment has to be adjudged as per educational qualifications and eligibility of the applicant for the post. Provision has also been made that in the event of non-availability of a vacancy or any of the members of the family being un-qualifled or minor, is not found suitable or eligible for immediate employment, then such cases should be considered immediately on the availability of the post or anyone of them becoming qualified or eligible for employment.
9. The expression "suitable employment" also needed interpretation for the decision of the petition. Does it mean employment on a post which the deceased Government-servant was holding at the time of his death or it means a post to which the dependent/applicant is eligible/entitled as per his educational qualifications ? Rule 5 no-where states that the member of a deceased Government-servant is entitled to a post which was held by the deceased at the time of his death. The legislation has used the words "suitable-employment" in relation to such member/dependent fulfilling educational qualifications prescribed for the post. The language employed in Rule 5 leaves no doubt that the term "suitable-employment" means employment on a post, except the major State Services mentioned in Rule 3, for which the member/dependent of the deceased Government-servant is eligible as per his educational qualifications. Any other meaning would be contrary to the intention and spirit of the Rules and it may also lead to absurd conclusions. It cannot be the intention of the rule that a son of the deceased Class-TV employee, who has taken higher education should be employed, as a Class-TV employee only or vice-versa. The contention of the learned Counsel for the Department that the petitioner was entitled to get employment as a daily rated workman/helper as per Circular (Annexure-R/1) issued by the Deputy Secretary to the Government, Public Works Department, Jaipur cannot be accepted. A similar view has been taken by a learned Single Judge of this Court in S.B. Civil Writ Petition No. 4468/90 (Shyam Singh v. State of Rajasthan.)
10. In Vivek Goswami v. State of Rajasthan and Ors. DB Civil Writ Petition No. 365/88 the applicant applied for the post of a Junior Employment Officer under the Rules of 1975 but he was given appointment on the post of LDC, while his application remained pending under the process. The Division Bench of this Court has gone to the extent "the petitioner having not been considered against the vacancy, the petitioner can legitimately make a grievance that he has been denied his legitimate light Under Rule 5 for seeking employment against the vacancy on the post of junior employment officer.
11. Thus, the claim of the petitioner has been wrongly considered as per the Circular referred to above and he is entitled for consideration for LDC/Store Munshi or Store Keeper or any other suitable post as per his qualifications.
12. Consequently, the writ petition is allowed and the respondents are directed to give appointment to the petitioner from 1.12.1994 on a post for which he was eligible/entitled as per his qualifications with all consequential benefits including the payment of arrears. The petitioner shall be given appointment and paid all the arrears as far as possible, but, not more than three months from today. The respondents are also seddied with a cost of Rs. 5,000/- to be paid to the State Legal Aid Board, Jaipur within three months keeping in view their apathy shown in the matter. The Registry is directed to send a copy of this Judgment to the Secretary, Legal Aid Board, Jaipur. A copy of this judgment be also sent to the Chief Secretary, Government of Rajasthan for taking steps and issuing instructions to all concerned in this connection, so that un-called litigation may be avoided.