Rajasthan High Court - Jodhpur
Rahul Birawat vs State Of Rajasthan on 25 November, 2022
Bench: Sandeep Mehta, Kuldeep Mathur
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Civil Writ Petition No. 17665/2022
Rahul Birawat S/o Hastimal, Aged About 31 Years, Dharu Ka Jav
Dharu, Colony, Ranjan Saray Ke Piche, Bali District Pali,
Rajasthan.
----Petitioner
Versus
1. State Of Rajasthan, Through The Secretary, Department
Of Home, Government Of Rajasthan, Jaipur, Rajasthan.
2. Secretary, Department Of Finance, Government Of
Rajasthan, Secretariat, Jaipur, Rajasthan.
3. Secretary, Department Of Personnel, Government Of
Rajasthan, Secretariat, Jaipur, Rajasthan.
4. Director General Of Police, Police Department, Jaipur,
Rajasthan.
5. Inspector General Of Police, Jodhpur Range, Jodhpur,
Rajasthan.
6. Superintendent Of Police, District Pali, Rajasthan,
Jodhpur.
7. Superintendent Of Police, District Chittorgarh, Rajasthan.
----Respondents
For Petitioner(s) : Dr. Nupur Bhati
For Respondent(s) : --
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE KULDEEP MATHUR Order 25/11/2022 The facts in a nutshell are that the father of the petitioner, Shri Hastimal while working on the post of 'Constable' in the respondent-department, passed away on 16.08.2021. The petitioner applied for appointment on compassionate ground (Downloaded on 29/11/2022 at 12:02:28 AM) (2 of 9) [CW-17665/2022] through an application dated 15.09.2021. The application was forwarded by Superintendent of Police, Pali to Inspector General of Police, Jodhpur Range, Jodhpur vide communication dated 22.11.2021. The application was further forwarded by Inspector General of Police, Jodhpur Range, Jodhpur to Director General of Police, Jaipur. The Director General of Police, Jaipur issued an order dated 25.02.2022 whereby, petitioner was allotted District Chittorgarh for compassionate appointment on the post of LDC.
The Superintendent of Police, Chittorgarh directed the petitioner vide communication dated 21.03.2022 to appear before him with original documents of educational qualifications and character certificate along with other requisite documents. The communication dated 21.03.2022 was forwarded to Police Station Officer, Bali District Pali for submitting character verification report and inquiry report in relation to Rule 5 of Rajasthan Compassionate Appointment of Dependents of Deceased Government Servants Rules, 1996. The Director General of Police, Jaipur vide order dated 06.06.2022 cancelled the offer of appointment dated 25.02.2022, on the ground that elder son of Late Shri Hastimal, Shri Suraj is already working as Safai Karamchari with Municipal Board, Bali, District Pali and therefore, in view of provisions contained in Rule 5 of Rules of 1996, the petitioner is not eligible to be appointed on compassionate ground.
The present writ petition has been filed challenging the vires of Rule 5 of Rajasthan Compassionate Appointment of Dependents of Deceased Government Servants Rules, 1996 praying for following reliefs:-
(Downloaded on 29/11/2022 at 12:02:28 AM)(3 of 9) [CW-17665/2022] "A. By an appropriate writ order or direction, the Rule 5.1 of the Rajasthan Compassionate Appointment of Dependants of Deceased Government Servant Rules, 1996 i.e. "When a Government Servant dies while in service one of his/ her dependents may be considered for appointment in Government service subject to the condition that employment under these rules shall not be admissible in cases where the spouse or at least one of the sons, unmarried daughters, adpoted son/adopted unmarried daughter of the deceased Government servant is already employed on regular basis under the central/any State Government or Statutory Board, Organiswation/Corporation owned or controlled wholly or partially by the Central/any State Government at the time of death of the Government servant. Provided that this condition shall not apply where the widow seeks employment for herself" may kindly be quashed and declared ultra vires and unconstitutional to the extent of restricting relaxation for afford compassionate appointment only to the widow and extending the relaxation to the other family members of the deceased employee who are not maintained by the spouse or at least one of the sons, unmarried daughters, adopted son/adopted unmarried daughter of the deceased Government servant is already employed on regular basis under the central/ any State Government or Statutory Board, Organization/ Corporation owned or controlled wholly or partially by the Central/any State Government at the time of death of the Government servant.
B. By an appropriate writ, order or direction, the respondents may kindly be directed to include the persons like the petitioner other than the widow of the deceased employee in the proviso to Rule 5.1 of Rule 5 of the Rajasthan Compassionate Appointment of Dependents of Deceased Government Servant (Downloaded on 29/11/2022 at 12:02:28 AM) (4 of 9) [CW-17665/2022] Rules, 1996 (i.e. Provided that this condition shall not apply where the widow seeks employment for herself) for the purpose of affording compassionate appointment.
C. By an appropriate writ, order or direction, the order dated 06.06.2022 (Annex.-14) and any other order denying the compassionate appointment to the petitioner may kindly be quashed and set aside.
D. By an appropriate writ, order or direction, the respondents may kindly be directed to afford compassionate appointment to the petitioner in like or order dated 25.02.2022 (Annex.-10) with all consequential benefits.
E. Any other appropriate writ, order or direction which this Hon'ble Court may deem just and proper in the facts and circumstances of the case may kindly be passed in favour of the petitioner.
F. Writ petition filed by the petitioner may kindly be allowed with costs."
The controversy involved in the present case is no longer res integra. A coordinate Bench of this Court in the case of Jaya Bhaduri Vs. State of Rajasthan & Anr. reported in 2001 (4) WLC 559, upheld the validity of Rule 5 of Rajasthan Compassionate Appointment of Dependents of Deceased Government Servants Rules, 1996 while observing as under:-
"(6). In this special appeal also, the learned counsel for the appellant-petitioner has challenged the validity of Rule - 5 of the Rules of 1996 contending inter-alia that the said Rule 5 was enacted in derogation with the objects sought to be achieved and it was also contrary to the provisions laying down the definition of the family members. It has been further contended by the learned counsel for (Downloaded on 29/11/2022 at 12:02:28 AM) (5 of 9) [CW-17665/2022] the appellant-petitioner that the said Rule - 5 of the Rules of 1996 is arbitrary, unreasonable, unconstitutional and invalid as it creates hindrance in serving the purpose for which the Rules of 1996 have been enacted, for the reason that in a given case, son or daughter, who is in service, may not be financially supporting the family of the deceased employee and in such a case, the family may face starvation.
(7). Before appreciating the contention of the learned counsel for the appellant-petitioner, it would be worthwhile to first reproduce hereinbelow Rule 5 of the Rules of 1996 as amended by the State Government vide Notification dated 19.4.1999:-
"Rule 5. Appointment subject to certain conditions:- When a Government Servant dies while in service one of his/her dependants may be considered for appointment in Government service subject to the condition that employment under these Rules shall not be admissible in cases where the spouse or at least one of the sons, unmarried daughters, adopted son/adopted unmarried daughter of the deceased Government servant is already employed on regular basis under the Central/any State Government or Statutory Board, Organisation/Corporation owned or controlled wholly or partially by the Central/any State Government at the time of death of the Government servant.
Provided that this condition shall not apply where the widow seeks employment for herself."
(8). The word 'Dependant' has been defined in Clause (c) of Rule 2 of the Rules of 1996. The said Clause (c) of Rule 2 of the Rules of 1996 was amended by the State Government vide Notification dated 19.4.1999 and the amended Clause (c) of Rule 2 reads as under-
(Downloaded on 29/11/2022 at 12:02:28 AM)(6 of 9) [CW-17665/2022] "Dependant' means a spouse, son, unmarried or widowed daughter, adopted son/adopted unmarried daughter legally adopted by the deceased Government servant during his/her life time and who were wholly dependant on the deceased Government servant at the time of his/her death."
(9). Before proceeding further, legal aspect with respect to for what purpose compassionate appointments are made and what is the object behind them may be seen For that, the decisions of the Hon'ble Supreme Court in Sushma Gosain and Ors. vs. Union of India and Ors. (1), Smt. Phoolwati vs. Union of India & Ors. (2), Umesh Kumar Nagpal vs. State of Haryana and Ors. (3), Jagdish Prasad vs. State of Bihar (4), State of Bihar vs. Samsuz Zoha (5), Himachal Pradesh Road Transport Corporation vs. Dinesh Kumar (6), Hindustan Aeronautics Ltd. vs. A.Radhiki Thirumalai (7), Haryana State Electricity Board vs. Naresh Tan war and Anr. (8), Haryana State Electricity Board and Anr. vs. Hakim Singh (9), Director of Education (Secondary) and Anr. vs. Pushpendra Kumar and Ors. (10), Cochin Cock Labour Board vs. Leemamma Samuel and Ors. (11), U.P.R.T.C. vs. Pukhraj Singh & Ors. (12) and Andhra Pradesh State Road Transport Corporation vs. P. Pochaiah and Anr. (13), may be referred to.
(10). The salient features of the above authorises may be summarised in the following manner:-
1. The purpose of providing appointment on compassionate ground is to mitigate the hardship due to death of the bread- earner in the family.
Such appointment should, therefore, be provided immediately to redeem the family in distress.
2. 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 (Downloaded on 29/11/2022 at 12:02:28 AM) (7 of 9) [CW-17665/2022] such source of livelihood. The Government or the public authority concerned has to examine the financial condition of the family of the deceased.
3. The favourable treatment given to such dependant of the deceased employee in such posts has a rational nexus with the object sought to be achieved, viz. relief against destitution.
4. The decision does not justify compassionate employment either as a matter of course.
5. The only ground which can justify compassionate employment is the penurious condition of the deceased's family.
6. The consideration for such employment is not a vested right. Th e object being to enable the family to get over the financial crises.
7. A provision for grant of compassionate employment, which is in the nature of an exception to the general provision, 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 for the dependant of a deceased employee.
8. An employment on compassionate ground should be provided strictly in accordance with the Rules and the Court cannot take a view as to make it violative of Articles 14 and 16 of the Constitution of India.
9. The Court should not stretch the provision by liberal interpretation beyond permissible limits on humanitarian grounds.
(11). Keeping the above settled legal principles in mind, the validity of Rule 5 of the Rules of 1996 has to be seen.
(12). It may be stated here that Rules of 1996 have been carved out as an exception to the service (Downloaded on 29/11/2022 at 12:02:28 AM) (8 of 9) [CW-17665/2022] jurisprudence which mandatorily require that any appointment in public office is to be made in consonance with the mandate of Articles 14 and 16 of the Constitution of India, as any appointment, even on temporary or adhoc basis, if found to be violative of the said provisions of the Constitution, would remain unenforceable being invalid. However, Rules of 1996 have been framed to mitigate the financial hardship of the grieved family which has lost its bread earner, as an exception to the provisions of Articles 14 and 16 of the Constitution of India. It is also settled principles of law that an exceptional clause/rule has to be construed strictly.
Such type of appointments offered on compassionate ground, in exercise of the powers of these Rules are extra-ordinary appointments given for a specific purpose. Since the above Rules revealed the policy of the State Government, this Court should not interfere and direct to give appointment to other son or unmarried daughter of the deceased Government employee and confine itself to the interrelation of the Rules. The Rules of 1996 take care of all problems by making it free that widow of the deceased employee can apply for job and the condition that one of her sons or unmarried daughters is in service of the Government/Corporation etc. would not make her ineligible.
(13). We do not find any substance in the argument of the learned counsel for the appellant-petitioner that mere exemption in favour of the widow may not serve purpose as she may not be of a proper or eligible age and may not possess the requisite qualification for the post, for the reason that Rule - 6 clearly stipulates that recruitment will be for subordinate/ministerial services or Class IV service as per the qualification of the applicant.
(14). In our considered opinion, Rule-5 of the Rules of 1996 where a provision has been made for (Downloaded on 29/11/2022 at 12:02:28 AM) (9 of 9) [CW-17665/2022] compassionate appointments that in case where the spouse or at least one of the sons, unmarried daughters, adopted son/adopted unmarried daughter of the deceased Government servant is already employed on regular basis under the Central/any State Government or Statutory Board, Organisation/Corporation owned or controlled wholly or partially by the Central/any State Government at the time of death of the Government servant, cannot be regarded as invalid. It serves the purpose for which the Rules of 1996 have been framed. No doubt, in some cases hardship may accrue, but it is not a determining factor for examining the constitutional validity of the Rules. The learned Single Judge has rightly held that Rule- 5 of the Rules of 1996 is valid and serves the purpose for which Rules of 1996 have been enacted."
In view of the adjudication made by the coordinate Bench in the case of Jaya Bhaduri (supra) we are not inclined to record separate reasons for adjudging validity of the Rule 5 of Rajasthan Compassionate Appointment of Dependents of Deceased Government Servants Rules, 1996.
The present writ petition is therefore, dismissed.
No order as to costs.
(KULDEEP MATHUR),J (SANDEEP MEHTA),J 53-KshamaD/-
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