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2000 DIGILAW 117 (RAJ)

Avinash Bhargava v. State of Rajasthan

2000-02-01

B.S.CHAUHAN

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Honble CHAUHAN, J.–The instant writ petition has been filed for issuing a direction to the respondents to modify the appointment letter given to the petitioner on compassionate ground and to offer him the post suitable to his educational qualification of Chartered Accountancy. (2). The facts and circumstances giving rise to this case are that petitioners father, who was working as Senior Senitary Inspector with respondent No.4, died in harness on 19.2.1999. Petitioner made an application for appointment on compassionate ground under the provisions of the Rajasthan Compassionate Appointment of Dependent of Deceased Government Servant Rules, 1996 (hereinafter called ``the Rules). He was offered the post of Lower Division Clerk vide letter dated 24.11.99 (Annexure 10) in the pay scale of Rs. 3050-4590/-and asked to join within a period of one month. Petitioner did not join the said post and filed the writ petition submitting that he ought to have been offered the post suitable to his educational qualification of Chartered Accountancy. (3). The concept of compassionate employment was considered by the Honble Supreme Court in Sushma Gosain vs. Union of India & Ors. (1), and the Apex Court held that the purpose of such an employment is to redeem the grieved family from the financial hardship which has resulted due to the death of the sole bread-earner. (4). In Smt. Phoolwati vs. Union of India & Ors. (2), the Honble Supreme Court held that such an employment must be offered without any delay and suitable post, commensurating with educational qualification of the petitioner is to be offered. (5). In Umesh Kumar Nagpal vs. State of Haryana and others (3), the Honble Apex Court has considered the nature of the right which a dependant can claim while seeking employment on compassionate ground. The Court has observed as under:- ``It appears that there has been a good deal of obfuscation on the issue. As a rule, appointment in the public services should be made strictly on the basis of open invitation of applications and merit. No other mode of appointment nor any other consideration is permissible. Neither the Governments nor the public authorities are at liberty to follow any other procedure or relax the qualifications laid down by the rules for the post. As a rule, appointment in the public services should be made strictly on the basis of open invitation of applications and merit. No other mode of appointment nor any other consideration is permissible. Neither the Governments nor the public authorities are at liberty to follow any other procedure or relax the qualifications laid down by the rules for the post. However, to this general rule which is to be followed strictly in every case there are some exceptions carved out in the interests of justice and to meet certain contingencies. One such exception is in favour of the dependants of an employee dying in harness and leaving his family in penury and without any means of livelihood. In such cases, out of pure humanitarian consideration taking into consideration the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made in the rules to provide gainful employment to one of the dependants of the deceased who may be eligible for such employment..... Unmindful of this legal position, some Governments and public authorities have been offering compassionate employment sometimes as a matter of course irrespective of the financial condition of the family of the deceased. .......The decision does not justify compassionate employment either as a matter of course.... The object being to enable the family to get over the financial crisis. (6). The same view has been reiterated in Jagdish Prasad vs. State of Bihar (4), State of Bihar vs. Samsuz Zoha (5), Himachal Pradesh Road Transport Corporation vs. Dinesh Kumar (6) and Hindustan Aeronautics Ltd. vs. A Radhiki Thirumalai, (7). It has categorically been held that compassionate employment cannot be claimed as a matter of course not being a vested right. (7). The concept of vested right has been explained by the Apex Court in Bibi Saveeda vs. State of Bihar (8), wherein it has been described as under:– ``The word ``vested is defined in Blacks Law Dictionary (6th Edition) at page 1563, as ``vested, Fixed; accrued; settled; absolute; complete. Having the character or given in the rights of absolute ownership; not contingent; not subject to be defeated by a condition precedent. Having the character or given in the rights of absolute ownership; not contingent; not subject to be defeated by a condition precedent. Rights are ``vested when right to enjoyment, present or prospective, has become property of some particular person or persons as present interest; mere expectancy of future benefits, or contingent interest in property founded on anticipated continuance of existing laws, does not constitute vested rights. In Websters Comprehensive Dictionary, {International Edition} at page 1397, ``vested is defined as {L}aw held by a tenure subject to no contingency; complete; established by law as a permanent right; vested interests. (8). There cannot be also any quarrel with the legal proposition that a mere right to take advantage of the statutory provisions is not an accrued right. (Vide Abhot vs. Minister of Land (9), Sakharam vs. Manik Chand (10), Hungerford Investment Trust Ltd. vs. Haridas Mundhra (11), Lalji Raja & Sons vs. Firm Hansraj Nathuram (12), Zoharbi vs. Arjuna (13) and S.S. Bhola vs. B.D. Sardana (14). (9). In Haryana State Electricity Board and another vs. Hakim Singh (15), the Honble Apex Court placed reliance upon the judgments referred to above and observed that the object of providing for compassionate employment is only to relieve the family from financial hardship, therefore, an `emelorating relief should not be taken as opening an alternative mode of recruitment to public employment. (10). In Director of Education (Secondary) and another vs. Pushpendra Kumar and others (16), the Court as observed as under:– ``The object underlying a provision for grant of compassionate employments is to enable the family of the deceased employee to tide over the sudden crisis resulting due to death of the bread-earner which has left the family in penury and without any means of livelihood. Out of pure humantarian consideration and having regard to the fact that unless some source of livelihood is provided, the family would not be able to make both the ends meet, a provision is made for giving gainful appointment to one of the dependants of the deceased who may be eligible for such appointment. Such a provision makes a departure from the general provisions providing for appointment on the post by following a particular procedure. Since such a provision enable appointment being made without following the said procedure. It is in the nature of an exception to the general provisions. Such a provision makes a departure from the general provisions providing for appointment on the post by following a particular procedure. Since such a provision enable appointment being made without following the said procedure. It is in the nature of an exception to the general provisions. An exception cannot subsume the main provision to which it it an exception and thereby nullify the main provision. Care has, therefore, to be taken that 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. (11). In Life Insurance Corporation of India vs. Asha Ramchandra Ambekar and another (17), the Apex Court held that the Court cannot issue a direction to give appointment contrary to rule and the Court is bound to issue the direction only in consonance with law. In Martin Burn Ltd. vs. Corporation of Calcutta (18), the Honble Apex Court has observed as under:– ``A result flowing from the 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 the Court likes the result or not. (12). In Himachal Road Transport Corporation (supra), the Apex Court has held that Court can only give direction to the appropriate authority in an appropriate case only ``in the light of the relevant Rules and it cannot issue any direction in contravention of it. Similar view has been reiterated in Hindustan Aeronautics Ltd. (supra); Patna University and another vs. Dr. Amita Tiwari (19) and Indian Bank vs. K. Usha and another (20). (13). Similarly, a Constitution Bench of the Honble Supreme Court in Sukhdeo Singh and others vs. Bhagatram Sardar Singh Rajvanshy and others (21), observed as under:- ``The existence of the Rules and Regulations under the Statute is to ensure regular conduct with a distinctive attitude to that conduct as a standard. The statutory regulations in the cases under consideration gives the employee a statutory status and impose restrictions on the employer and employee with no option to vary the condition. The statutory regulations in the cases under consideration gives the employee a statutory status and impose restrictions on the employer and employee with no option to vary the condition. An ordinary individual in a case of master and servant contractual relationship enforces breach of contractual terms. The remedy in such contractual relationship of master and servant is damages because personal service is not capable of enforcement. In case of statutory bodies, there is no personal element whatsoever because of the impersonal character of the statutory bodies. In the case of statutory bodies, it has been said that the element of public employment or service and the support of the statute require observance of Rules and Regulations. (14). Similarly, in Ramchandra and Others vs. Union of India and Others (22), the Honble Supreme Court observed that ``the exercise of power should not be made against the spirit of provisions of the Statute otherwise it would tend towards arbitrariness. (15). The instant case is to be examined in the light of the aforesaid judicial pronouncements. Rule 5 of the said Rules provides that such an appointment may be offered to one of the dependants of the deceased employee to a post ``carrying pay scale Nos. 1 to 9 and ment for being fill-up by direct recruitment in the subordinate services/ministerial services/Class IV services, as the case may be, according to his/her educational qualification and fulfilment of other service conditions irrespective of the rank and status of the deceased government servant. (16). Thus, it is crystle clear that the Statutory Rules provide only for an appointment in subordinate services/ministerial services/Class IV services carrying pay scale Nos. 1 to 9 and meant for being filled-up by direct recruitment. The legislative intent is quite clear and this Court has no right to ignore the said intention. The contention raised by the petitioner that he may be offered the post considering his qualification of Chartered Accountancy, is not worth considering, nor this Court can remove the anomaly to the extent as alleged by the petitioner that in subordinate services the post of Accountant can be filled-up by direct recruitment but the same does not fall within the pay scale Nos. 1 to 9. (17). 1 to 9. (17). The appointment on compassionate ground is not to confer a status or appointment according to the qualification of the candidate as the purpose of such an employment is not to open an another mode of appointment but to redeem the grieved family from financial crisis. If the contention of the petitioner is accepted, it would be violative of the mandate of Articles 14 and 16 of the Constitution, which provide for equality in employment for all eligible candidates. (18). In State of Bihar & Ors. vs. Samsu Zoha (supra), the Honble Supreme Court has categorically held that there can be no right vested in the candidate for particular appointment on compassionate ground. At the most, he has a right to be considered under the Policy Decision/Statutory Rules framed by Competent Authority. (19). Thus, in view of the above, I am of the considered opinion that the petitioner is not entitled for any relief whatsoever, the petition is devoid of any merit and accordingly dismissed.