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2001 DIGILAW 290 (RAJ)

Board of Rajasthan v. Rajendra

2001-02-19

A.R.LAKSHMANAN, MOHD.YAMIN

body2001
Honble LAKSHMANAN, C.J.–All the above appeals were filed by the State of Rajasthan against the common judgment dated February 2, 2000 passed by a learned Single Judge of this Court, partly allowing the writ petitions filed by the respective respondents. WRIT APPEAL NO. 635/2000 (2). The respondent Rajendra filed the Writ Petition No. 4432/98 to declare Rule 10(3) of the Rules of 1996 to be arbitrary and violative of the provisions of the Constitution and to quash the communication dated 18.10.97 and 7/8.1.98 and consequently direct the respondents to consider the application of the respondent petitioner for suitable appointment after taking into consideration his qualification in accordance with the Rules with consequential benefits. The Respondents father died on 4.5.1995. At the time of his death the respondent was about 15 years of age and was student of 8th standard. He passed out the Senior Secondary Examination in 1996. Thereafter he submitted an application seeking appointment on compassionate ground in terms of the proforma appended to the Rules of 1996. The application was turned down by the 2nd appellate herein on the ground that as per Rule 10(3) of the Rules of 1996. The applicant was required to submit the application within 45 days from the date of death of deceased which the respondent failed to submit, his application could not be considered and the same was rejected on 18.10.97. The learned Single Judge after hearing arguments in various connected writ petitions, allowed the writ petitions including the present one in the following terms: ``In view of the above discussion, the writ petitions stand disposed of in the following terms: (i) The dependants of the deceased Government servants who died before promulgation of Rules of 1996 i.e. before January 25, 1997 shall be governed by the Rules of 1975 and the orders issued thereunder. Rules of 1996 shall not be made applicable to such cases. As all the Government servants in the instant writ petitions had died before January 25, 1997 the respondents are directed to decide their cases afresh in view of Rules of 1975 within a period of 45 days from the date of receipt of this order. (ii) Rules 5 and 10(3) and (6) of the Rules of 1996 are adjudged valid. But the State Government or authority concerned is expected to take immediate decision on the applications. (ii) Rules 5 and 10(3) and (6) of the Rules of 1996 are adjudged valid. But the State Government or authority concerned is expected to take immediate decision on the applications. Time limit of 45 days from the date of receipt of the application may be fixed so as to avoid the allegation of proceeding at a pace unduly slow like a snail walk. If application is received after prescribed period of 45 days and reasonable explanation is afforded for such delay then the Government authority concerned should take recourse to the provisions of Section 5 of the Limitation Act in condoning the delay. (3). Feeling aggrieved by the judgment, the Board of Revenue for Rajasthan, Ajmer and another have preferred the above appeal. WRIT APPEAL NO. 681/2000 (4). Writ Appeal No. 681/2000 was filed against the order passed in Writ Petition No. 2020/98. The respondent filed the above writ petition to declare the provisions of Rule 5 to the extent of excluding a dependant whose mother/father, brother and sister (being spouse, son or daughter of deceased employee) is in service as illegal and arbitrary and unconstitutional and consequently the same may be struck down. A further prayer has been made to declare Rule 10(6) as illegal and arbitrary as the same defeats the very object and reason giving rise to promulgation of rules providing compassionate appointment. Petitioner/respondents father died on 7.10.1995 while working on the post of U.D.C. in the C.I.D. (C.B.) which is a department in the Police organisation. The family consisted of wife of the deceased and three sons. The mother of the respondent Smt. Rajkumari is a Teacher Gr. III in the Education Department of the Government of Rajasthan. The respondent after the death of his father submitted an application for appointment on compassionate grounds on the post commensurating his qualification. The application was also signed by the mother of the respondent seeking appointment for her son. The application was forwarded by the Superintendent of Police-I, Crime Branch, Jaipur to the Deputy Inspector General of Police, Police Head quarter, Jaipur for appropriate action. The application was rejected and a communication to this effect was sent to the respondent. The respondent sent a notice for demand of justice on 11.8.97. Thereafter he submitted the writ petition which was partly allowed by the learned Single Judge. The application was rejected and a communication to this effect was sent to the respondent. The respondent sent a notice for demand of justice on 11.8.97. Thereafter he submitted the writ petition which was partly allowed by the learned Single Judge. A reply to the writ petition was submitted by the appellants that the mother of the writ petitioner is already in the employment of the State Government and since the mother of the writ petitioner is competent to maintain the family of the deceased Government servant, therefore, there is no necessity to give employment to another person in the same family. Since the Rules of 1975 have been repealed the case of the petitioner shall be considered only in accordance with the Rules of 1996 because cause of action of appointment arises only from the date of consideration of the application at the Government level. The learned Judge upheld the validity of Rule 5 of the Rules but however issued the directions as extracted above in paragraph supra. Feeling aggrieved the State of Rajasthan preferred the above appeal. WRIT APPEAL NO. 682/2000 (5). Writ Appeal No. 682/2000 was filed against the order passed in S.B. Civil Writ Petition No. 6/98 which was also disposed of by the learned Single Judge alongwith other writ petitions. The respondent Manoj Singh Chauhan was the son of one Rajpal Singh who was holding the post of Inspector of Police but expired on 2.11.1996. The elder brother of the respondent has been working as Agriculture Supervisor in Agriculture Department of the State of Rajasthan. The respondents mother submitted an application to the Director General cum Inspector General of Police on 26.11.96 that her son be given appointment on the post of Sub Inspector of Police or equivalent post under the provisions of Rajasthan Recruitment of Dependents of Government Servant (Dying While in Service) Rules, 1975. A reply was filed by the appellants that the respondent was not entitled for employment being overage under the provisions of the Rules (25 years of age on 15.6.1972). A reply was filed by the appellants that the respondent was not entitled for employment being overage under the provisions of the Rules (25 years of age on 15.6.1972). It is also submitted that the respondent does not fulfil the conditions for appointment on the post of Sub Inspector of Police as is evident from the fact that under Rule 11 of the Rajasthan Police Subordinate Service Rules, 1989 a candidate for direct recruitment to the service must not have attained the age of 23 years for the post of Sub Inspector and 21 years for the post of Constable. Rule 11 of the Rules is reproduced as under:- ``11. Age.- A candidate for direct recruitment to the services must have attained- (a) for the post of Sub-Inspector/Platoon Commander, the age of 20 years and must not have attained the age of 23 years, on 1st January next following the last date fixed for receipt of application. (b) For the post of Constables, the age of 18 years and must not have attained the age of 21 years on 1st day of January next following the last date fixed for receipt of applications. However the upper age limit for Constable (Driver) shall be 24 years: Provided that : (1) the upper age-limit shall be relaxed upto 5 years in case of the candidates belonging to the SC/ST, and Women, and 3 years in case of the candidates belonging to State Government employees and the dependents of the deceased Police Officers/officials killed in the discharge of their duties. (2) The upper age limit mentioned above shall be 40 years in the case of Ex-Service Personnel and the Reservists, namely the service personnel who are transferred to the Reserve. (3) However the upper age limit mentioned above may be relaxed by three years in exceptional cases by appointing authority, after previous approval of Government. (4) That the released Emergency Commissioned Officers and Short Service Commissioned Officers after release from the army, shall be deemed to be within the age-limit, when they appear before the commission, had they been eligible as such at the time of their joining the commission in the Army. (6). (4) That the released Emergency Commissioned Officers and Short Service Commissioned Officers after release from the army, shall be deemed to be within the age-limit, when they appear before the commission, had they been eligible as such at the time of their joining the commission in the Army. (6). It is the case of the appellant that on the date of the application the respondent had attained the age of more than 24 years and hence in terms of Rule 11 of the Rules he was over age since he had crossed the upper age limit prescribed under the Rules. As such the application of the respondent was rejected by the appellants vide order dated 20.12.97 under Rule 5 of the Rules of 1996. The respondent preferred the writ petition which was partly allowed, against which the present appeal has been filed by the State. WRIT APPEAL NO. 782/2000 (7). Writ Appeal No. 782/2000 has been filed against the order passed in S.B. Civil Writ Petition No. 5800/98 which was also partly allowed by the learned Single Judge. In this case it is alleged that the father of the respondent died on 11.10.1996 while working on the post of Teacher, Government Secondary School, Khawa which is an establishment/institution of the Education Department of the Government of Rajasthan. The family of the deceased government servant consisted of his wife, one married son, two unmarried sons and one daughter (unmarried). According to the respondent his qualification is Secondary School Examination from Board of Secondary Education in 1996-97. The mother of the respondent submitted an application on 16.8.1997 in the office of the appellant No.2 with a request to consider the application for employment to her son being the dependent of the deceased Government servant. The application was not in prescribed from as such the respondent was asked to submit the same in the prescribed form under the Rules of 1996. After examining the application the same was rejected and a communication dated 3.1.98 (Anx. 5) mentioning therein that the application has been submitted after the expiry of 45 days of the death of the deceased government servant which the limitation prescribed under sub-rule (3) of Rule 10 of the Rules of 1996. The respondent thereafter submitted various applications seeking employment but the same were rejected under the provisions of the Rules. 5) mentioning therein that the application has been submitted after the expiry of 45 days of the death of the deceased government servant which the limitation prescribed under sub-rule (3) of Rule 10 of the Rules of 1996. The respondent thereafter submitted various applications seeking employment but the same were rejected under the provisions of the Rules. Thereafter the respondent filed the writ petition which was allowed by the learned Single Judge alongwith other writ petitions. Being aggrieved, the present special appeal has been filed. (8). Heard Shri R.N Mathur, Additional Advocate General, Mr. Mohd. Rafiq, Additional Advocate General and Shri M.R. Naredi, Advocate for the appellants in the above cases and Shri Ajay Rastogi for the respective respondents in the appeals. (9). Before we proceed to deal with the arguments advanced by the respective parties, it is useful to reproduce some paragraph of the judgment of the learned Single Judge. The learned Judge has tested the validity of Rules 5 and 10 of the Rules of 1996. After referring to the arguments advanced the learned Judge in paragraphs 19 and 20 of his judgment has observed as follows: ``19. I do not find merit in the submission. One of the persons shown in Rule 2(c) who were wholly dependant on the deceased at the time of his/her death is eligible for the compassionate appointment provided that none of the dependants is already employed on regular basis in State or Central Service, Board, Organisation, Corporation owned and controlled by the Central/State, at the time of the death of the deceased. But this condition shall not apply where the widow of the deceased seeks employment for herself. On account of the death of a person whole family suffers but widow of the deceased suffers the most. Therefore the framers of the Rules of 1996 added proviso to Rule 5 to give benefit of compassionate appointment to the widow. Looking to the pious duty of the earning members towards the family of the deceased, the framers imposed a condition that the dependant of the deceased shall not be entitled to employment if any other dependant of the deceased is already in employment. To my mind this condition is rightly imposed. Looking to the pious duty of the earning members towards the family of the deceased, the framers imposed a condition that the dependant of the deceased shall not be entitled to employment if any other dependant of the deceased is already in employment. To my mind this condition is rightly imposed. It is the duty of the earning member of the family of the deceased to look after the family at the time of financial crisis but if on account of selfishness or some other reason, earning member ignores the other surviving members of the family of the deceased the State government is not duty bound to create the mode of recruitment for the other dependant. And what is the guarantee that after seeking compassionate appointment such a dependant shall remain with other members of the family and shall not become selfish? Under these circumstances provisions contained in Rule 5 of the Rules of 1996 cannot be said to be arbitrary as there are enough safeguards to take care the welfare of the family of deceased Government servant. 20. I also do not see any unconstitutionality in Rule 10(3) and (6) of the Rules of 1996. Prescribing the period of limitation is necessary in view of the fact that the object of granting compassionate appointment is to relieve the family of the deceased of the financial destitution and to help it in getting over the emergency. But at the same time the Government or authority concerned is expected to take immediate decision on the applications. Time limit of 45 days, from the date of receipt of the application may be fixed so as to avoid the allegation of proceeding at a pace unduly slow like a snail walk. If application is received after prescribed period of 45 days and reasonable explanation is offered for such delay than the Government or authority concerned should take recourse to the provisions of section 5 of the Limitation Act in condoning the delay. (10). The concluding part of the discussion occurred in para 21 has already been extracted in paragraph supra. Shri R.N. Mathur, Additional Advocate General submitted that the directions given by the learned Single Judge has ignored the fact that the Rules of 1975 stood repealed by virtue of Rule 15 of the Rules of 1996. Rule 15 referred to above is reproduced as under:- ``15. Shri R.N. Mathur, Additional Advocate General submitted that the directions given by the learned Single Judge has ignored the fact that the Rules of 1975 stood repealed by virtue of Rule 15 of the Rules of 1996. Rule 15 referred to above is reproduced as under:- ``15. Repeal and Savings- The existing Rajasthan Recruitment of Dependants of Government Servants Dying while in Service Rules, 1975 and any order issued thereunder are hereby repealed. Provided that any action under the rules and orders so repealed/superseded shall be deemed to have been taken under the provisions of these rules. (11). It is the specific contention of Shri Mathur that the appointment could not have been given under a repealed law which ceases to exist. Mr. Mathur has further submitted that the mother of the writ petitioner is a Government servant and hold the post of Teacher Gr. III and in such circumstances the family was not in difficult position and, therefore, the application of the applicant deserves to be rejected since it is not made out that the family of the writ petitioner was not able to maintain itself and his having no means to sustain. Referring to the observations of the learned Single Judge in the judgment it is submitted that the father of the writ petitioner died on 7.10.1995 and the petitioner submitted his writ petition seeking appointment in the year 1998 i.e. after a period of 3 years and, therefore, when the family had been able to survive the entire purpose of giving appointment on compassionate ground also does not survive. Shri Mathur also submitted that the appellant in Writ Appeal No. 681/2000 has not come to Court with clean hands and filed the earlier writ petition No. 6149/97 which was rejected by the Court as the mother of the appellant was already in employment. During the pendency of the earlier writ petition another writ petition was filed seeking the same relief of giving appointment on compassionate grounds which writ petition was registered as S.B. Civil Writ Petition No. 2020/98. A declaration was given by the respondent petitioner that no such writ petition was filed earlier. In reply filed by the State an objection was taken about the maintainability of the second writ petition on the concealment of necessary and relevant facts. A declaration was given by the respondent petitioner that no such writ petition was filed earlier. In reply filed by the State an objection was taken about the maintainability of the second writ petition on the concealment of necessary and relevant facts. Shri Ajay Rastogi, learned Counsel appearing for the respondent in all these matters invited our attention to Rule 10(3) which was amended vide notification dated 19.4.99. The notification dated 19.4.99 is reproduced hereunder: ``Such application be made in proforma attached as Annexure A to the head of the office/department within a period of 3 months from the date of death of the Government servant. The applicant shall submit an affidavit in support of monthly income (from all sources) of the entire family members mentioned in column No. 7 of the prescribed application. Provided that where the spouse does not seek appointment for herself/himself and even the eldest of remaining dependants has not attained the age of 18 years (intimation to this effect to be given in writing within three months of the death of the Government servant), the above period of limitation shall run from the date of attaining the age of 18 years by such eldest dependant. (12). Mr. Ajay Rastogi submitted that in view of the above Rule the respondent is entitled for consideration in terms of the amended Rule 10(3) as the respondent attained 18 years of age on 7.6.98 and was entitled to submit the application within 90 days thereafter. According to him, the judgment reported in Mancha Ram vs. State of Rajasthan (1), requires reconsideration. (13). We have perused the judgment rendered by the learned Single Judge. The learned Single Judge was considering the amendment contained in sub-rule (3) of Rule 10 of the Rules of 1996 to make appointment available to a dependant whenever he attains majority. The learned Judge on elaborate consideration of the entire case law on the subject came to the conclusion that the amendment contained in clause (3) of Rule 10 is violative of Articles 14 and 16 of the Constitution and is liable to be struck down. The learned Judge on elaborate consideration of the entire case law on the subject came to the conclusion that the amendment contained in clause (3) of Rule 10 is violative of Articles 14 and 16 of the Constitution and is liable to be struck down. It is useful to reproduce para 30 : ``Thus, in view of the above, as the very purpose of compassionate employment is to redeem the family from immediate financial hardship, the amendment contained in Clause (3) of Rule 10 to make it available to a dependant whenever he attains majority, cannot be sustained in the eye of law being violative of the provisions of Articles 14 and 16 of the Constitution. It opens a mode of employment by succession which is not permissible in law. If the eldest dependant attains the age of 18 years after an inordinate delay from the death of the employee, offering appointment to him at such a belated stage would not serve the purpose of granting immediate financial relief to redeem the grieved family from financial constraints. Therefore, the said clause, being ultra vires, is struck down. However, it is clarified that the judgment shall not have any bearing on the appointments already made under the Rules and it will have a prospective effect. Even in case of the petitioner, if he had already been appointed on compassionate ground, it is not desirable to disturb him. (14). In our opinion, the view taken by Dr. Justice Chauhan is correct and as has rightly been pointed out by him, the mode of employment by succession is not permissible in law and if the eldest dependant attains the age of 18 years after an inordinate delay from the date of death of the employee, offering appointment to him at such a belated stage would not serve the purpose of granting immediate financial relief to redeem the grieved family from financial constraints. The above view was taken by the learned Single Judge after discussing the entire case law on the subject. In our opinion, the above judgment does not require reconsideration by the Division Bench. Mr. Rastogi cited Narendra Kumar Sharma vs. The State of Rajasthan & ors. (2), and submitted that for invoking the Rules of 1975 even if brother is in employment the same can not be denied to the petitioner. (15). Shri Mohd. In our opinion, the above judgment does not require reconsideration by the Division Bench. Mr. Rastogi cited Narendra Kumar Sharma vs. The State of Rajasthan & ors. (2), and submitted that for invoking the Rules of 1975 even if brother is in employment the same can not be denied to the petitioner. (15). Shri Mohd. Rafiq, learned Additional Advocate General appearing for the appellant in Writ Appeal No. 635/2000 submitted that the Rule 15 of the Rules of 1996 had completely repealed the Rajasthan Recruitment of Government Servants (Dying While in Service) Rules, 1975 earlier in vogue and any order issued thereunder saving only such action taken under the Rules or orders so repealed/superseded. According to him, Rule 11 of the Rules gave over-riding effect to the Rules of 1996 notwithstanding anything to the contrary contained in any rules. The direction given by the learned Single Judge to decide the cases where death has taken place prior to the promulgation of the Rules, 1996 i.e. before January 25, 1997 in effect resulted in reviving the Rules of 1975 for this particular purpose, whereas the saving clause of rule 15 only saved such actions which had been taken under the Rules of 1975. (16). In our opinion, the dependants of the deceased Government servants do not stand to acquire any right of employment nor does any such accrued to them by mere death of such Government servant and, therefore, they cannot be allowed to invoke Section 6(1)(c) of the Rajasthan General Clauses Act which provides that where any Rajasthan law repeals any enactment thereto made, then unless a different intention appears, the repeal shall not affect any right, privilege, obligation or liability acquired, accrued or incurred any enactment so repealed because in the present case not only a different intention appears in the scheme of Rule 5, 10(3) and 10(6) of the Rules of 1996 when they are compared with Rules of 1975, but also no right of any description was acquired, accrued on incurred by the dependants under the replealed rules. Law is well settled that whenever an Act is replealed, it must be considered, except as to transactions passed and closed as if it had never existed. Law is well settled that whenever an Act is replealed, it must be considered, except as to transactions passed and closed as if it had never existed. The effect of repeal vide rule 15 in the present case was to obliterate the Rules of 1975 completely from the book and as if it had never been framed and it never existed except to the extent of actions which were initiated, taken and concluded while the rules of 1975 were existing. Moreover, existence of corresponding provisions similar to the one contained in repealed provisions is a condition precedent to claim that a different intention does not appear in the new rules and, therefore, the rights of the dependants would not stand effected under the new rules. If certain provisions of the new rules are inconsistent and incompatible with the old rules, such rights automatically get obliterated and as a result and effect of the provisions relating to repeal, earlier provisions no longer survive. As to the meaning of right accrued and acquired and as to what effect would be there on the rights where a contrary intention appears in the new set of Rules. Strong reliance was placed on the recent judgment of the Supreme Court in the case reported in Gajraj Singh & ors. vs. State Transport Appellate Tribunal (3) for the above proposition. In para 22, the Supreme Court has observed as follows: ``Whenever an Act is repealed it must be considered, except as to transactions past and closed, as if it had never existed. The effect thereof is to obliterate the Act completely from the record of Parliament as if it had never been passed; it never existed except for the purpose of those actions which were commenced, prosecuted and concluded while it was an existing law. (17). We have already noticed the direction given by the learned Single Judge in para 21 of his judgment. In first part of para 21 the learned Single Judge has directed that where the death of the deceased Government servant had taken place before January 25, 1997 their cases should be considered afresh under the Rules of 1975. (17). We have already noticed the direction given by the learned Single Judge in para 21 of his judgment. In first part of para 21 the learned Single Judge has directed that where the death of the deceased Government servant had taken place before January 25, 1997 their cases should be considered afresh under the Rules of 1975. In the second part of the directions in para 21 of the learned Judge has directed for even application after prescribed period of 45 days and reasonable explanation is offered, the Government or authority concerned should take recourse to the provisions of Section 5 of the Limitation Act in condoning the delay. These directions in our view run contrary to what has been directed by the learned Single Judge in the first part of para 21 where it has been ordered that such Rules should be dealt with under the Rules of 1975. More over the provisions of Section 5 of the Limitation Act cannot be made applicable to the administrative and executive decisions. Under Section 5 of the Limitation Act the parties have to satisfy the court that they had sufficient cause for not preferring the appeal or application within the stipulated period. In Sushila Devi vs. Rama Nandan Prasad (4), the Supreme C court has held that Section 5 of the Limitation Act, 1963 does not apply if the authority is not a court and the Collector acting under Section 15 of the Kosi Area (Restoration of Lands to Raiyats) Act, 1951 not a court, though vested with certain specified powers under the Code of Civil Procedure. (18). In our opinion, Section 5 of the Limitation Act cannot at all be invoked in connection with application made in the instant case. Under Section 5, Limitation Act an appeal or application may be admitted after the prescribed period if the appellant/applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period. In Sakuru vs. Tanaji (5), the Supreme Court has observed as follows: ``Where appeal is before a body or an authority other than a `court, special statute under which appeal is filed must authorise such body or authority to apply Section 5 while dealing with application for condonation of delay in filing the appeal. (19). In Nityananda, M. Joshi & ors vs. Life Insurance Corporation of India and ors. (19). In Nityananda, M. Joshi & ors vs. Life Insurance Corporation of India and ors. (6), the Supreme Court has observed as under: ``Article 137 only contemplates applications to courts. In the Third Division of the Schedule to the Limitation Act, 1963, all the other applications mentioned in the various articles are applications filed in a court. Further Section 4 of the Limitation Act, 1963, provides for the contingency when the prescribed period for any application expires on a holiday and the only contingency contemplated is ``when the court is closed. Again under Section 5 it is only a court which is enabled to admit an application after the prescribed period has expired if the court is satisfied that the applicant had sufficient cause for not preferring the applications. The scheme of the Indian Limitation Act, 1963 is that it only deals with applications to courts and that the Labour Court is not a court within the Indian Limitation Act, 1963. (20). It is thus seen that the directions issued by the learned Single Judge are incapable of compliance in view of the settled legal positions. (21). The object and very concept of compassionate appointment in itself is to give succor to the family to tide over sudden financial crisis befallen the dependants on account of the untimely demise of its sole earning member. It is in order to mitigate the hardship caused to the family and alleviate the distress of the family that as a welfare measure, the appointments are given on compassionate grounds. In this context the Supreme Court in Umesh Kumar Nagpal vs. State of Haryana (7), and Managing Director MMTC Ltd. vs. Promoda Dei (8), held that the consideration for compassionate appointment is not a vested right and such right cannot be exercised at any time in future. As held by Supreme Court in the case of Umesh Kumar Nagpal (supra) mere death of an employee in harness does not entitle his family to compassionate appointment. In the case of Promoda Dei (supra) the Supreme Court held that the object of compassionate appointment is to enable the penurious family of the deceased employee to tide over the sudden financial crisis and not to provide employment and that mere death of an employee does not entitle his family to compassionate appointment. In the case of Promoda Dei (supra) the Supreme Court held that the object of compassionate appointment is to enable the penurious family of the deceased employee to tide over the sudden financial crisis and not to provide employment and that mere death of an employee does not entitle his family to compassionate appointment. The respondents in all these cases, therefore, in our view, cannot claim appointment on compassionate ground as a vested or indefeasible right. (22). The Supreme Court in LIC vs. Asha Ramchandra Ambekar, (9), had observed that disregardful of law, however hard case may be, appointment on compassionate grounds should not be ordered if the case does not fall within the scope of law. The Supreme Court also held that there may be pitiable situation, but on that score the statutory provisions cannot be put aside. This opinion of the Supreme Court was reiterated by the Supreme Court in State of Himachal Pradesh vs. Jafli Devi (10). (23). We shall now deal with Rule 10(3) where in the limitation of 45 days from the date of death of deceased Government servant which has since been extended to 90 days has been provided with the object of ensuring that appointment on compassionate ground is given only in deserving cases to dependants of a Government servant dying in harass to mitigate the immediate hardship and at the earliest point of time. The Supreme Court in H.S.E.B. vs. Naresh Tanwar (11), held that such concession cannot be allowed to be extended over the years so that by such lapse of time the heir of the deceased employee attains majority and then becomes eligible for being considered for appointment. The above view has again been affirmed by the Supreme Court in the recent judgment in the case of Sanjay Kumar vs. State of Bihar (12). (24). Delay has always been held to be a valid criteria to refuse appointment on compassionate ground, object being to provide immediate assistance to the family in times of sudden financial crisis. The above view has again been affirmed by the Supreme Court in the recent judgment in the case of Sanjay Kumar vs. State of Bihar (12). (24). Delay has always been held to be a valid criteria to refuse appointment on compassionate ground, object being to provide immediate assistance to the family in times of sudden financial crisis. In this context we may simply refer to the following decisions without extracting the passages: (1) Sanjay Kumar vs. State of Bihar (supra) (2) State of UP vs. Parasnath (13) (delay of 17 years) (3) HSEB vs. Hakim Singh, (14) (delay of 14 years) (4) HSEB vs. Naresh Tanwar, (supra) (delay of 12 years) (5) Jagdish Prasad vs. State of Bihar (15) (delay of 23 years) (6) Union of India vs. Bhagwan Singh (16) (delay of 20 years) (25). We shall now deal with Rule 5 of the Rules of 1996. Rule 5 and its proviso reads as follows: ``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/daughter of the deceased Government servant is already employed on regular basis under the Central/State Government or Statutory Board, Organisation/Corporation owned or controlled wholly or partially by the Central/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. (26). The above Rule says that if already one member of the family of the deceased Government servant is in employment on regular basis under the Central/State Government or statutory Board/Organisation/Corporation owned or controlled wholly or partially by the Central/State Government, employment on compassionate ground shall not be admissible to any of them. However, such restriction shall not be applied where the widow seeks employment for herself. This is a valid criteria and has an intelligible differentia and rational behind it. It has got a reasonable nexus with the object sought to be achieved. Besides the fact that Rule 5 has been adjudged constitutionally valid by the learned Single Judge himself. However, such restriction shall not be applied where the widow seeks employment for herself. This is a valid criteria and has an intelligible differentia and rational behind it. It has got a reasonable nexus with the object sought to be achieved. Besides the fact that Rule 5 has been adjudged constitutionally valid by the learned Single Judge himself. The Supreme Court in a number of judgments held the restriction to deny employment on compassionate ground on the premises that where rules provided that such appointment would not be given if one of the members of the family was already in employment. In S. Mohan vs. Government of Tamil Nadu (17), the appellants mother while in service of Municipality died when the appellant was 12/13 years old and his two brothers were already employed and his father was receiving pension. 10 years later the appellant applied for and given by the Municipality compassionate appointment. The Supreme Court held that appellants compassionate appointment was unwarranted and ratification thereof was rightly refused by the Government. The Supreme Court upheld the consequential order of termination of the appellant and also held that the continuance of the appellant in service under interim orders of the Tribunal is inconsequential in this regard. The Court held that the compassionate appointment in this case is unjustified. (27). In State of H.P. & anr. vs. Jafli Devi (supra), the Supreme Court held that where a son of the deceased employee was already in government service, the High Court has erred in interfering with the denial of compassionate appointment by the department to another son of the same deceased employee. (28). In Life Insurance Corporation of India vs. Asha Ramchandra Ambekar & anr., (supra), the Supreme Court held that courts cannot order appointment on compassionate grounds dehors the provisions of statutory regulations and instructions. (29). The argument of Shri Ajay Rastogi, learned counsel for the respondents that since Rule 2 (c) defines the dependants to mean a spouce, son, daughter who were wholly dependant on deceased Government servant at the time of his death, therefore, rule 5 cannot deny appointment to a son/daughter on the premise that another son/daughter of the deceased Government servant was employed elsewhere at the time of death because he cannot be considered as wholly dependant on the deceased. Such interpretation in our view is not warranted on the language of rule 5 which is an independent provision in the scheme of the rules and convey a definite meaning. While a son/daughter who is already employed may not be dependant on the deceased Government servant, but at the same time he continues to be the member of the family and on that ground rule 5 of the Rules would immediately get attracted. Although the rule making authority has made an exception for the widow of the deceased Government servant, if seeks employment for herself. In our view, the rule has to be interpreted in proper perspective so that its purpose is given effect to and the provision contained is allowed to operate without rendering it otiose. We are of the opinion that the argument of the learned counsel for the respondents that rule 2 (c) is part of the basic structure of the rules and rule 5 is not, is liable to be rejected. (30). Mr. Ajay Rastogi submitted that in one of the cases inspite of Rules of 1996, appointment has been given on compassionate ground and, therefore, the respondents-petitioners in all the writ petitions should be given appointment on compassionate ground by applying the same yardstick. We are unable to appreciate or give our seal of approval for the said contention. The Supreme Court in the case of Indian Council of Agricultural Research & anr., vs. T.K. Suryanarayan and ors., (18), has held as under: ``Even it in some cases, erroneous promotions had been given contrary to the service rules and consequently such employees have been allowed to enjoy the fruits of improper promotion, an employee cannot base his claim in law courts for promotion contrary to the statutory service rules. Incorrect promotion either given erroneously by the department by misreading of the service rules or such promotion given pursuant to judicial orders contrary to service rules cannot be a ground to claim erroneous promotion by perpetrating infringement of statutory service rules. In a court of law, the respondents cannot be permitted to contend that the service rules should not be adhered to because in some cases erroneous promotions had been given. The statutory service rules must be applied strictly. (31). In a court of law, the respondents cannot be permitted to contend that the service rules should not be adhered to because in some cases erroneous promotions had been given. The statutory service rules must be applied strictly. (31). In this context we may also usefully refer to a leading decision of the Madras High Court in R. Karuppan vs. R. Namachivayam (19), delivered by Honble K.A. Swamy, Chief Justice and Honble AR. Lakshmanan, J. The above matter relates to an order passed by the Custom Department in regard to the fire arms brought by the appellant from London. Before the Madras High Court an argument was advanced by the appellant that since the respondents on a few earlier occasions have cleared the goods duty free or cleared the goods on certain occasions against the payment of concessional rate of duty, Custom department are bound to release the goods without insisting upon production of licence by the appellant who is a sportman of outstanding eminence. Dealing with the above contention the Division Bench held : ``The respondents cannot take a different view from the long standing practice resulting in confiscation and levy of penalty. This argument was opposed by the learned Senior Standing Counsel for the respondents. Mr. V.T. Gopalan contended that the reliance placed by the appellant upon the earlier order by which fire arms brought by him were released, can be of no help to the appellant since the earlier orders of release were an administrative one and were not the result of a quasi-judicial adjudicatory process. Even otherwise, according to the learned Senior Standing Counsel, orders of authorities and the Tribunal cannot be equated to precedent. Further, one order cannot be judged with reference to the earlier or later order. It will be that the impugned order is a right order and the earlier order or the later order is wrong, and that each order has to be judged according to its own facts and circumstances and the provisions of law in force at that time. It is the specific case of the respondents in paragraph 6 of the counter affidavit that the earlier order is bad. For the above submissions, Mr. It is the specific case of the respondents in paragraph 6 of the counter affidavit that the earlier order is bad. For the above submissions, Mr. V.T. Gopalan, learned Senior Standing Counsel sought support from the following rulings reported in Sri Rama Vilas Service (Private) Ltd. Kumbakonam vs. Raman and Raman (Private) Limited, Kumbakanam (1959 (11) M.L.J.I. (D.B.) 72 L.W. 474); A.C. Paul vs. Tax Recovery Officer, Tirunelveli (1977 T.N.L.J. 453 (DB); Harpal Kaul Chahal vs. Director, Punjab Instructions (1995 Suppl (4) SCC 706); Chandigarh Administration vs. Jagjit Singh ( 1995 (1) SCC 745 ); and Gursharan Singh vs. New Delhi Municipal Committee ( AIR 1996 SC 1175 ). (32). Shri R.N. Mathur, Additional Advocate General also placed reliance on many reported judgments on the question at issue. We simply refer to those case laws alone: (a) A hope of getting appointment not a right accrued. AIR 1980 SC 77 = 1980(1) SCC 150 (20); 1989(2) SCC 557 (21); 1999(9) SCC 334 (22); (b) Purpose of compassionate appointment (i) to provide assistance in time of distress. It does not give reservation for appointment. (ii) If already employed, members in family, such person is not in need. JT 2000 (10) 156- Sanjay Kumar vs. State of Bihar (supra). The Supreme Court in this case held that there cannot be reservation of a vacancy till the dependant becomes major/eligible for appointment if he is minor at that time unless there is some special provision in that regard. (c) Limitation of 45 days provided under Rule 10(3) held to be justified in D.B.S.A.W. No. 2822/97-Dipendra Singh vs. State of Rajasthan and other appeals decided on 16.10.2000 (23) by Honble B.J. Shethna J. and Honble S.K. Garg, J. The Bench also considered another question as to whether in the said case Rules of 1975 would applicable or not in the following terms: ``Another question to be considered is whether in the present case Rules of 1975 would be applicable or not. No doubt, in this case, father of the appellant-petitioner died on 17.2.1995 and on that day Rules of 1975 were in force. No doubt, in this case, father of the appellant-petitioner died on 17.2.1995 and on that day Rules of 1975 were in force. However, the appellant-petitioner applied for appointment on compassionate ground on 18.8.1998 and on that day, Rules of 1996 came into existence and Rules of 1975 were repealed and after perusing Rule 11 of the Rules of 1996, it appears that Rules of 1996 shall have effect notwithstanding anything to the contrary contained in any rules, regulations or orders in force at the commencement of these Rules. Thus from all point of view, the case of the present appellant-petitioner shall be governed by the Rules of 1996 and the learned Single Judge was right in holding that no right had accrued in favour of the appellant petitioner under the Rules of 1975. Moreso, in such a case, application is to be decided as per the law applicable on the day of decision for the reasons that mere pendency of an application does not create any legal right in favour of applicant. (33). The following other judgments of the Chief Justice Dr. AR. Lakshmanan and Shri A.K. Parihar, J. on the very same subject may also be referred to in the present context: Shashi Bala vs. State of Rajasthan & others (D.B. Civil Special Appeal (Writ) No. 792/2000 decided on 20.9.2000 (24) and Dipendra Singh vs. State of Rajasthan & ors. (D.B. Civil Special Appeal No. 833/98 decided on 5.8.2000 (25). (34). For the foregoing reasons all the above appeals filed by the State of Rajasthan/Board of Revenue are allowed and consequently the order passed by the learned Single Judge is set aside and the writ petitions are dismissed. (35). No costs.