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2001 DIGILAW 962 (RAJ)

Kuldeep Kumar Kashyap v. State of Rajasthan

2001-05-30

S.K.KESHOTE

body2001
JUDGMENT 1. - By this petition under Article 226 of the Constitution the petitioner is praying for quashing and setting aside of the order dated 11.10.90 petitioner including the letter No. F.2(24) (Medical & Health) 3/87 dated 11.7.90 of the Section Officer, Medical & Health Department, Group III to the Director of Medical & Health Department, Rajasthan, Jaipur, the reference of which is given in Annexure-12. 2. The second prayer made is for direction to the respondents to consider the application of the petitioner dated 15.1.86 (Annexure-2) for the appointment on the post of Subordinate Services for example Commercial Taxes Inspector/Rajas than Excise Inspector/Enforcement Inspector/Accountant with retrospective effect. 3. Annexure-12 is there on the record of this petition at page No.41. Under the Annexure-12 it is informed to the petitioner that the dependant of the deceased dying while in service once has been given appointment he cannot be given appointment on another post on the basis of his qualifications. 4. The petitioner in fact and substance made an attempt to create the confusion otherwise Annexure-12 is the order of the State Government which has been communicated to him by the Director, Medical & Health Services, Rajasthan, Jaipur. 5. The facts of the case as what the same emerge from the petition are that the father of the petitioner late Shri Jagdish Prasad Arya was in the service of the Medical & Health Services Department as Maleria Inspector. He expired on 10.11.1985. The petitioner possesses the qualification of three years degree that is B.Com. which he did in the year 1982 from the University of Rajasthan. 6. The petitioner submitted an application on 15.1.86 in the prescribed form through proper channel to the Director, Medical & Health Services, Rajasthan, Jaipur and prayed therein to give him the appointment on compassionate ground under the Rajasthan Recruitment of Dependents to the Government Servants Dying While in Service Rules, 1975 (hereinafter, referred as 'the Rules', 1975). The Deputy Chief Medical & Health Officer forwarded his application vide his letter No.1207 dated 9.4.1986 to the Director, Medical & Health Services Department, Rajasthan, Jaipur. 7. The petitioner was given the appointment immediately after receipt of this application on the post of Lower Division Clerk. The appointment order of the petitioner is Annexure-3 at page No. 23 of the petition which is dated 27.1.86. 8. 7. The petitioner was given the appointment immediately after receipt of this application on the post of Lower Division Clerk. The appointment order of the petitioner is Annexure-3 at page No. 23 of the petition which is dated 27.1.86. 8. It is the grievance of the petitioner that under the Rules, 1975 he was entitled to the post of same status which was being held by his father that is the post of subordinate services as the petitioner fulfilled the requisite qualification being graduate even on the date of the death of his father. 9. It is submitted that he joined the post of L.D.C. on 29.1.86 and on the very day sent his application to the Director, Medical & Health Services Department, Rajasthan, Jaipur to give him the appointment on proper post according to the status and qualifications. The petitioner met respondent No.4 personally in the matter and he was given assurance regarding his proper appointment. The petitioner in para No. 11 of the petition stated that he was told by respondent No.4 that the vacant post of subordinate service is not there in the Medical & Health Department according to the qualifications of the petitioner, therefore, the matter will be referred to the Department of Personnel. 10. The petitioner as per his case himself sent a letter directly to the Deputy Secretary to the Government, Department of Personnel (A-II) on 14.3.87. The petitioner sent reminder to respondent No.4 on 20.4.88 through proper channel. This was followed by another reminder dated 12.1.89. Yet another reminder has been sent by the petitioner to respondent No.2 on 14.2.90. 11. The petitioner averred that the Director, Medical & Health Services, Rajasthan, Jaipur called the comments from the Chief Medical & Health Officer in the matter vide letter dated 8.3.90. The Chief Medical & Health Officer, Sriganganagar vide his letter dated 10.4.90 sent the comments and other relevant records. The comments received by the respondent No.4 from the Chief Medical & Health Officer and other papers were sent by him to the Deputy Secretary to the Government, Medical & Health (Group-3) Department, Rajasthan, Jaipur vide letter dated 3.5.90. The petitioner then made reference to the attempt made by her mother for getting this appointment on subordinate post for the petitioner. She sent an application to the Chief Secretary to the Government of Rajasthan, Jaipur on 19.6.90. The petitioner then made reference to the attempt made by her mother for getting this appointment on subordinate post for the petitioner. She sent an application to the Chief Secretary to the Government of Rajasthan, Jaipur on 19.6.90. However ultimately this matter has been decided and the decision has been communicated vide letter dated 11.10.90. Hence this petition. 12. This petition was placed for preliminary hearing in the Court on 15.1.1991. The petition was admitted. Mr. N.C. Goya], the then Addl. Government Advocate was directed to accept the notices of the same. 13. On the request of learned Addl. Government Advocate six weeks time was granted to file the reply to the petition. The reply to the petition has been filed. The reply though appears to be filed in this matter by the respondents but the same is not on the record. The copy of this reply has been taken by the Court from the counsel for the petitioner. 14. In the reply to the writ petition the respondents have taken the defence that the petitioner could not have been given appointment on the post of his father. The petitioner was given the employment as what he deserves. He joined the post of LDC voluntarily at his sweet will. According to the provisions of Rule 5 of the Rules, 1975 the dependent of deceased is to be given suitable employment which implied according to the qualification and eligibility of the dependent. He was the graduate and accordingly given the appointment as LDC. The vacancy in the subordinate cadre was not available and accordingly the appointment was given to the petitioner as LDC. 15. The rejoinder to the reply has been filed by the petitioner but therein it is not given out that any post in the subordinate service was lying vacant at the relevant time in the Department. The petitioner 'is not claiming the appointment on the post of Malaria Inspector. He claims the appointment on the post of Commercial Inspector or Accountant or Excise Inspector. 16. Learned counsel for the petitioner contended that the appointment given to the petitioner as LDC was contrary to the Rules, 1975. He accepted that appointment under protest reserving his right of the appointment on the subordinate post. He fulfilled the qualifications and eligibility prescribed for the subordinate post and accordingly the appointment should have been given to him. 16. Learned counsel for the petitioner contended that the appointment given to the petitioner as LDC was contrary to the Rules, 1975. He accepted that appointment under protest reserving his right of the appointment on the subordinate post. He fulfilled the qualifications and eligibility prescribed for the subordinate post and accordingly the appointment should have been given to him. Learned counsel for the petitioner has made reference to the certain cases where the appointments were given to the dependent of deceased on the subordinate post. 17. Learned counsel for the respondents submitted that Rules, 1975 are the rules which based on socio-economic approach and in the case of a deceased Government servant died in harness while in service in appropriate case his dependent can be given the appointment. It is not an absolute right but it depends on the facts of each case. Otherwise also what the learned counsel for the respondents submits that the petitioner cannot have a right on a particular post for the appointment on the compassionate ground. 18. I have given my thoughtful consideration to the submissions made by the learned counsel for the parties. 19. The appointment on the compassionate ground broadly speaking is contrary to the provisions of Article 16 of the Constitution but having the socio-economic approach it is taken to be a reasonable restriction on the fundamental rights of the citizen and in this State the Rules, 1975 have been framed. From the scheme of the Rules, 1975, it cannot be taken as a rule or right that irrespective of the financial condition of the family of the deceased the employment has to be given to one of the dependent of deceased who died in harness while in service of the Government. These rules were framed in 1975 and thereafter their Lordships of the Supreme Court have given many decisions on this aspect of the matter and I am of the opinion that in the light of the decisions given by the Hon'ble Supreme Court the Rules 1975 need to be amended and bring them in consonance with the law as laid down and pronounced by the Apex Court of the country. 20. 20. In the case of (1) Umesh Kumar Nagpal v. State of Haryana, (1994) 4 SCC 138 , their Lordships of the Supreme Court held as under: "As a rule, appointments 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 dependents 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 rule to provide gainful employment to one of the dependents of the deceased who may be eligible for such employment. 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." 21. In this very judgment their Lordships of the Supreme Court given out the factors necessary for being taken into account before offering an appointment on compassionate ground. The Court has observed: "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. It must be remembered in this connection that as against the destitute family of the deceased there are millions of other families which are equally, if not more destitute. It must be remembered in this connection that as against the destitute family of the deceased there are millions of other families which are equally, if not more destitute. The exception to the rule made in favour of the family of the deceased employee is in consideration of the services rendered by him and the legitimate expectations, and the change in the status and affairs, of the family' engendered by the erstwhile employment which are suddenly upturned. ' 22. In the case of (2) Life Insurance Corporation of India v. Asha Ramchandra Ambedkar, (1994) 2 SCC 718 , the Apex Court speaking for scope of the High Courts and Tribunals to order for compassionate appointment held as under: "The High Courts and the Administrative Tribunals cannot confer benediction impelled by sympathetic consideration. The courts should endeavour to find out whether a particular case in which sympathetic considerations are to be weighed falls within the scope of law. Disregardful of law, however, hard the case may be, should never be done. In the very case itself, there are regulations and instructions governing the matter. The court below has not even examined whether a case falls within the scope of relevant statutory provisions. The appellant Corporation being a statutory Corporation is bound by the Life Insurance Corporation Act as well as the Statutory Regulations and Instructions. They cannot be put aside and compassionate appointment be ordered. Moreover, the High Court should not have directed the appointment on compassionate grounds. It should have merely directed consideration of the claim of the second respondent. No mandamus should be issued directing to do a thing forbidden by law." 23. In the case of (3) Jagdish Prasad v. State of Bihar (1996) 1 SCC 301 , the Apex Court held that 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. 24. In this case their Lordships of the Supreme Court further held that the son although a minor (four years old) at the time of father's death is not entitled to claim compassionate appointment long (23 years in this case) thereafter. 25. 24. In this case their Lordships of the Supreme Court further held that the son although a minor (four years old) at the time of father's death is not entitled to claim compassionate appointment long (23 years in this case) thereafter. 25. Giving out the circumstances, negativing the necessity of compassionate appointment in the case of (4) Union of India v. Bhagwan Singh (1995) 6 SCC 476 , their Lordships of the Supreme Court held as under: "In the instant case, the plea for compassionate employment is not to enable the family to tide over the sudden crisis or distress which resulted long ago. At the time the railway servant died there were two major sons and the mother of the children who were apparently capable of meeting the needs in the family and so they did not apply for any job on compassionate grounds. For nearly 20 years, the family has pulled on, apparently without any difficulty. In this background, it must be held that the Central Administrative Tribunal acted illegally and wholly without jurisdiction in directing the Authorities to consider the case of the respondent for appointment on compassionate grounds and to provide him with an appointment, if he is found suitable." 26. In this very case their Lordships of the Supreme Court have given out the limitation for making application for compassionate appointment. It is held: "It is common ground, that normally all appointments on compassionate grounds should be made within a period of five years from the date of occurrence of the event entitling the eligible persons to be appointed. In this case the railway servant died on 12.9.1972. He left behind his wife, two major sons and the respondent,a minor aged 12 years then. The respondent attained majority in 1980/1981. There is no material on record to show that the respondent a plied within 5 years of "the event" or within one year from the date of this attaining majority. As early as 21.9.1987 an application filed by the respondent was dismissed. The subsequent applications filed in that behalf were dismissed on 19.6.1990 and 11.6.1991. There is material on record to show that the respondent was aged 33 years at the time of making the application and the last application which was allowed by the Tribunal was one filed nearly 20 years after the death of the railway servant. Patently the application is barred." 27. There is material on record to show that the respondent was aged 33 years at the time of making the application and the last application which was allowed by the Tribunal was one filed nearly 20 years after the death of the railway servant. Patently the application is barred." 27. In the case of (5) State of Manipur v. A.Ongbi Memcha Devi (1995) 4 SCC 210 , a person entitled to the compassionate appointment in that context, their Lordships of the Supreme Court held as under: "Employee dying during service period, widow given compassionate appointment - Subsequent claim for compassionate appointment of another person on the same ground during continuance of service of the widow, held, impremissible - More so when such other person was merely the brother, and not a dependent, of the deceased." 28. In the case of (6) State of Haryana v. Rani Devi (1996) 5 SCC 308 , their Lordships of the Supreme Court held that 'employee' does not include a casual or purely ad hoc employee or apprentice. The relevant portion of the judgment reads as under: "The claim for compassionate appointment is based on the ground that the claimant was a dependent of the deceased employee. Strictly this claim cannot be upheld on the touchstone of Arts. 14 or 16 of the Constitution. But the Supreme Court has upheld this claim as reasonable and permissible on the basis of sudden crisis occurring in the family of such employee who has served the State and dies while in service. That is why it is necessary for the authorities to frame rules, regulations or to issue such administrative orders which can stand the test of Arts. 14 and 16. In the instant case the High Court ought not to have directed appointment of the respondents (widows) on compassionate ground when admittedly the respective husbands of the respondents were working as Apprentice Canal Patwaris. If the scheme regarding appointment on compassionate ground is extended to all sorts of casual, ad hoc employees including those who are working as apprentices, then such scheme cannot be justified on constitutional grounds. When the Government Order dated 31.10.1985 extends the benefit of appointment to one of the dependents of the 'deceased employee' the expression 'employee' does not conceive casual or purely ad hoc employee or apprentices." 29. When the Government Order dated 31.10.1985 extends the benefit of appointment to one of the dependents of the 'deceased employee' the expression 'employee' does not conceive casual or purely ad hoc employee or apprentices." 29. Speaking for the definition of 'family' their Lordships of the Supreme Court in the case of (7) State of Haryana v. Dhan Singh (1996) 7 SCC 262 held: "Rule 6.16-B indicates that for the purpose of the above rules 'family' include the wife, in the case of male officer, husband, in the case of a female officer, sons, unmarried and widowed daughters (including step-children and adopted children), brothers below the age of 18 years and unmarried and widow sisters (including step-brothers and sisters), father, mother (including adoptive parents in case of individuals whose personal law permits adoption), married daughters and children of a pre-deceased son. It would thus be seen that in the case of a brother, he will be a member of the family as dependent if he is below 18 years. If he seeks employment under the rules, he cannot be appointed if he is below 18 years and has not become major. The moment he crosses 18 years, he no longer remains to be a dependent member of the family of the deceased government employee. There is no substance in the contention that previously they had appointed the brother of the deceased employee and, therefore, the Government is stopped by contending that the brother is not a dependent of the deceased government employee. It might be that some Department had wrongly given the benefit but such wrong action cannot become right, in the face of specifically unambiguous language in which the rules are couched. Under these circumstances, the High Court was not right in giving direction to appoint the brother of the deceased on compassionate grounds." 30. In the case of (8) Hindustan Aeronautics Ltd. v. A. Radhika Thirumalai (1996) 6 SCC 394 , their Lordships of the Supreme Court held that the order of the High Court to consider the candidature of the dependent of deceased employee and to give the compassionate appointment to him/her by creating a supernumerary post is improper. In the case of (8) Hindustan Aeronautics Ltd. v. A. Radhika Thirumalai (1996) 6 SCC 394 , their Lordships of the Supreme Court held that the order of the High Court to consider the candidature of the dependent of deceased employee and to give the compassionate appointment to him/her by creating a supernumerary post is improper. The fact of the case was that the dependent of the deceased employee applied for the compassionate appointment at the time when there was no vacancy and a ban on fresh recruitment was in operation as there was surplus labour, the work force was being reduced and incentives were being offered for voluntary retirement. 31. In the case of (9) Haryana State Electricity Board v. Naresh Tanwar (1996) 8 SCC 23 , their Lordships of the Supreme Court held that belated claim for compassionate appointment of the dependent of deceased government servant cannot be accepted. It is held: "Compassionate appointment cannot be granted after a long lapse of reasonable period and the very purpose of compassionate appointment, as an exception to the general rule of open recruitment, is intended to meet the immediate financial problem being suffered by the members of the family of the deceased employee. The very object of appointment of dependent of deceased employee who died in harness is to relieve immediate hardship and distress caused to the family by sudden demise of the earning member of the family and such consideration cannot be kept binding for years." 32. Right to claim particular appointment and the policy decision of the State regarding the level of costs to be offered in the case of (10) State of Bihar v. Samsuz Zoha (1996) 4 SCC 546 , their Lordships of the Supreme Court held: "There is no right vested in the candidates for particular appointment on compassionate grounds. The State has taken a policy decision to appoint all the candidates irrespective of the qualifications in Class IV posts and 12 posts available in Class III were reserved for appointment by promotion to the Class IV candidates who were entitled thereto as per the rules. The principle adopted by the Government cannot be said to be unjustified or illegal. The State has taken a policy decision to appoint all the candidates irrespective of the qualifications in Class IV posts and 12 posts available in Class III were reserved for appointment by promotion to the Class IV candidates who were entitled thereto as per the rules. The principle adopted by the Government cannot be said to be unjustified or illegal. Undoubtedly, some candidates had gone to the court and obtained orders and in compliance thereof, at pain of contempt petition, the Government instead of appointing them to Class IV posts since by then the Class III posts were not available, upgraded Class IV post as Class III post and confirmed as Class III employees. That order which was wrongly made by the High Court cannot be a base to issue directions. In other words, if the directions are complied with all the Class IV posts would be converted into Class III posts which is against the discipline of the service. The High Court, therefore, was not justified in issuing directions in all the cases or appointment to Class III post." 33. In the case of (11) Himachal Road Transport Corporation v. Dinesh Kumar (1996) 4 SCC 560 , their Lordships of the Supreme Court held: "In the absence of a vacancy it is not open to the Corporation to appoint a person to any post. It will be a gross abuse of the powers of a public authority to appoint persons when vacancies are not available. If persons are so appointed and paid salaries, it will be a mere misuse of public funds, which is totally unauthorised. Normally, even if the Tribunal finds that a person is qualified to be appointed to a post under the Kith and Kin policy, the Tribunal should only give a direction to the appropriate authority to consider the case of the particular applicant, in the light of the relevant rules and subject to the availability of the post. It is not open to the Tribunal either to direct the authorities concerned to create a supernumerary post and then appoint a person to such a post." 34. In the case of (12) MMTC Ltd. v. Pramoda Dei (1997) 11 SCC 390 , their Lordships of the Supreme Court held that object of the compassionate appointment is to enable the penurious family to tide over the sudden financial crisis and is not to provide employment. In the case of (12) MMTC Ltd. v. Pramoda Dei (1997) 11 SCC 390 , their Lordships of the Supreme Court held that object of the compassionate appointment is to enable the penurious family to tide over the sudden financial crisis and is not to provide employment. It is held that mere death of the employees does not entitle his family to claim compassionate appointment. 35. In the case of (13) State of H.P. v. Jail Devi (1997) 5 SCC 301 , their Lordships of the Supreme Court held that where a son of the deceased employee was already in government service, the denial of the compassionate appointment by the department to another son of the same deceased is not illegal or arbitrary. 36. In the case of (14) Haryana State Electricity Board v. Hakin Singh (1997) 8 SCC 85 the request for compassionate appointment after a long time (14 years in that case) was held to be not justified. It is held by the Hon'ble Supreme Court: "Request for compassionate appointment made when the deceased employee's son attained majority. The request rejected by the appellant-Board on the ground that departmental circulars prescribed maximum three years' time for making such request. The High Court holding that "in case of minor child the period of three ears would be applicable from the date he becomes major" - High Court interpretation set aside - If the family members of the deceased employee can manage for fourteen years after his death, one of his legal heirs cannot put forward a claim as though it is a line of succession by virtue of a right of inheritance - The object of the provision is ..... to give succour to the family to tide over the sudden financial crisis befallen the dependents on account of the untimely demise of its sole earning member." 37. In the case of (15) S. Mohan v. Govt. of T.N. (1998) 9 SCC 485 , the object and purpose of compassionate appointment are reiterated by the Hon'ble Supreme Court and it is held: "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." 38. In the case of (16) Director of Education (Secondary) v. Pushpendra Kumar (1998) 5 SCC 192 , their Lordships of the Supreme Court held that the compassionate appointment cannot be insisted upon for a particular post. 39. In the case of (17) State of U.P. v. Paras Nath (1998) 2 SCC 412 , their Lordships of the Supreme Court have considered the effect of long delay in applying for the compassionate appointment and held: "The purpose of providing employment to a dependent of a government servant dying in harness in preference to anybody else, it to mitigate the hardship caused to the family of the employee on account of his unexpected death while still in service. The alleviate the distress of the family, such appointments are permissible on compassionate grounds provided there are Rules providing for such appointment. None of these considerations can operate when the application is made after a long period of time such as seventeen years in the present case. The High Court was, therefore, not right in granting any relief to the respondents." 40. In the case of (18) Orissa State Electricity Board v. Raj Kumari Panda, 1999 SCC (L&S) 729 , their Lordships of the Supreme Court held that the other conditions precedent for the compassionate appointment is that it can be given only when vacancies exist and not otherwise. 41. In the case of (19) Andhra Pradesh State Road Transport Corporation v. Dannina Rajeshwari, 1999 SCC (L&S) 1182 , their Lordships of the Supreme Court held that relief for the compassionate appointment can be granted only if clear vacancy exists. 42. In the case of (20) Sanjay Kumar v. State of Bihar AIR 2000 SC 2782 , the object and purpose of the compassionate appointment is restated by the Hon b e Supreme Court and held that it is intended to enable the family of the deceased employee to tide over sudden crisis resulting due to death of the bread earner who had left the family in penury and without any means of livelihood. 43. The Governor of Rajasthan in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, made the special Rules regulating the recruitment of dependents of Government servants dying while in service, namely, the Rules 1975. 43. The Governor of Rajasthan in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, made the special Rules regulating the recruitment of dependents of Government servants dying while in service, namely, the Rules 1975. These Rules have been repealed by the Rajasthan Compassionate Appointment of Dependents of Deceased Government Servants Rules, 1996 (for short 'the Rules of 1996)'. However, as this matter arises earlier to the Rules of 1996 came into force, the same is decided with reference to Rules of 1975. 44. Rule 5 of the Rules of 1975 provides that subject to the condition laid down thereunder, one member of the family of the deceased government servant shall, on making an application for the purpose, can be given a suitable employment in government service without delay, only against the existing vacancy which is not within the purview of the State Public Service Commission, in relaxation of the normal recruitment rules. This Rule further provides that in the event of non-availability of a vacancy or any of the members of the family being unqualified for immediate employment then such case will be considered immediately on availability of the post or any one of them became qualified or eligible for such employment under the Rules. 45. Proviso to this Rule was added vide Notification No.F.3(6) Karmik/Ka.II/75 dated 22.8.83 which permits the appointment on compassionate ground on the posts which are within the purview of the Rajasthan Public Service Commission, except the major State Services mentioned in rule 3. 46. As a result of this proviso the appointments on compassionate ground are permissible to all the posts except the major State Services. Under the rules 1975 the appointments are not restricted to the post/posts in Class III or Class IV services. 47. Not only this, a bare perusal of Rule 5 of the Rules 1975 given out that it reserves a right of appointment to the dependents of the deceased government servants. 48. Under proviso to Rule 5 of the Rules 1975 permits appointment on compassionate ground against the subordinate services which are within the purview of the Rajasthan Public Service Commission. Not only this, the appointment to the State Services are also permissible except the major State Services. 48. Under proviso to Rule 5 of the Rules 1975 permits appointment on compassionate ground against the subordinate services which are within the purview of the Rajasthan Public Service Commission. Not only this, the appointment to the State Services are also permissible except the major State Services. Thus a perusal of the Rules 1975 leaves no doubt that it is not a compassionate appointment but an appointment as a matter of rule, right and course. The Rules 1975 are taken an exception keeping in view the socio economic objects to the recruitment rules and constitutional provisions, but confer a right of regular appointment to one of the dependants of deceased government servants dying while in service and that too for all the services except the major State Services. 49. Having gone through the Scheme of the Rules 1975 and the decisions of Hon'ble Supreme Court, these are directly in conflict of those decisions. The Rules 1975 nowhere provide criteria for giving of the compassionate appointment except eligibility for appointment on compassionate ground to one of the dependants of the deceased government servant dying while in service. The Hon'ble Supreme Court in decisions starting from the case of Umesh Kumar Nagpal v. State of Haryana (supra) to the latest one, held that 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 where it is satisfied, 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. Their Lordships of the Hon'ble Supreme Court observed that it must be remembered in this connection that as against the destitute family of the deceased there are millions of other families which are equally, if not more, destitute. Their Lordships of the Hon'ble Supreme Court observed that it must be remembered in this connection that as against the destitute family of the deceased there are millions of other families which are equally, if not more, destitute. Exception to the general rule of the recruitment has been carved out as what their Lordships of the Hon'ble Supreme Court held in the interest of justice and to meet the certain contingencies where the deceased government servant left his family in penury and without any means of livelihood, in such cases out of pure humanitarian consideration the fact that unless some source of livelihood is provided the family would not be able to make both ends meet, a dependant is given the employment. What their Lordships of the Hon'ble Supreme Court observed that whole object of granting compassionate employment is to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post muchless a post or posts held by the deceased government servant. 50. In the case in hand if we go by the application (Annexure-2) filed by the petitioner I find that prayer for compassionate employment is not that the family is unable to tide over the sudden crisis or distress, that is to say that unless some source of livelihood is provided the family would not be able to make both ends meet. The father of the petitioner was Malaria Inspector and he prayed for appointment on the post of Commercial Inspector, Accountant or any post in the subordinate services. He has nowhere stated in the application that but for the provision for this appointment the family will not be able to tide over the sudden crisis. 51. The reply to the petition has been filed and therefrom I do not find that the appointment has been given to the petitioner on compassionate ground to meet out the sudden crisis occurring to the family of the employee who died in harness, that is to be more clear to meet the immediate financial problem being suffered by the members of the family of the deceased. 52. In the case of Director of Education (Secondary) v. Pushpendra Kumar (supra) their Lordships of the Hon'ble Supreme Court held that the compassionate appointment cannot be claimed or insisted upon a particular post. 52. In the case of Director of Education (Secondary) v. Pushpendra Kumar (supra) their Lordships of the Hon'ble Supreme Court held that the compassionate appointment cannot be claimed or insisted upon a particular post. In the case of Himachal Road Transport Corporation v. Dinesh Kumar (supra), their Lordships of the Hon'ble Supreme Court held that in the absence of a vacancy it is not open to the employer to appoint a person to any post. In the case of State of Bihar v. Samsuz Zoha (supra) their Lordships of the Hon'ble Supreme Court have given out that the appointment on compassionate ground should not be on the posts above Class III or Class IV. The employment cannot be claimed or offered after a lapse of reasonable time. 53. Class III posts may consist of Ministerial and Subordinate Services. In Class III, the posts may be of different pay scales. So far as Class IV category is concerned, there may not be any difficulty. But in Class III a question does arise where the appointments can be given to any post i.e. the post of highest pay scale also. The compassionate appointment is to give or provide immediate financial assistance to a destitute family of the deceased i.e. as a result of the death of the employee, sudden financial crisis has been there. It is not a source of recruitment or a right to appointment, that means immediate financial help is to be provided maximum by giving a post in Class III the lowest pay scale subject to condition he fulfils eligibility otherwise, to a Class N post. After this, the dependant, who gets the appointment on compassionate ground, is to take his own course, apply for the higher post and face the competition. Objects and purpose of the Rules 1975 is to provide immediate financial assistance that is how same are taken to be an exception to the provisions of the recruitment rules and Article 16 of the Constitution of India. 54. There is another requirement insisted upon that only against the vacant post this appointment is permissible. There is all the possibility that immediately a post in the lowest pay scale in Class III may not be vacant. But their Lordships of the Hon'ble Supreme Court nowhere held that the existing post cannot be down graded. 54. There is another requirement insisted upon that only against the vacant post this appointment is permissible. There is all the possibility that immediately a post in the lowest pay scale in Class III may not be vacant. But their Lordships of the Hon'ble Supreme Court nowhere held that the existing post cannot be down graded. The appointment against the available Class III post that is subject to the fulfilment of qualification prescribed be given and its pay scale be down graded to the lowest pay scale. Moment when the lowest pay scale post in Class III is available the appointee be shifted to that post or appointment may not be given. The Rule 5 of the Rules of 1975 is not in consonance with the decisions of the Supreme Court of India. 55. Appointment may not be given against a post of any State Services. This restriction of appointment only against major State Services is not in furtherance of the object and purpose of the Rule 1975. The appointment also may not be permitted against the subordinate services in Class III, recruitment to which is to be made through the Rajasthan Public Service Commission. Except the post of Class III of lowest pay scale, even if recruitment to that post is to be made through Public Service Commission to that extent the relaxation may be permissible. 56. Reference here may have to the Rules of 1996 also. Though, certain changes are brought therein, but, having a glance on the Rules 1996 I am satisfied that still they are not in consonance with the catena of decisions of the Hon'ble Supreme Court. In Rule 5 of the Rules 1996 it is provided that dependant of the government servant may be considered for appointment to the post and pay scale Nos.1 to 9 and meant for being filled up by direct recruitment n the subordinate services/ministerial services/Class IV service. Though as per this Rule the appointment against the State Services is not permissible. But in the ministerial services the lowest post is of L.D.C. or its equivalent and there may not be any problem. From Rule 10 of the Rules 1996 I find that it is not necessary that the post should be vacant. Though as per this Rule the appointment against the State Services is not permissible. But in the ministerial services the lowest post is of L.D.C. or its equivalent and there may not be any problem. From Rule 10 of the Rules 1996 I find that it is not necessary that the post should be vacant. A scheme of the Rules 1996 given out that the appointment on compassionate ground has been made a right of one of the member of the family of the deceased government servant, that burns out from sub-rule (4) of Rule 10 thereof. Sub-rule (6) thereof provides that in case suitable post is not vacant, the application shall be kept on waiting list for providing employment on the 'first come first serve' basis. Where a post in lower pay scale is available immediately such lower post can be offered to the applicant and the applicant has the option either to wait for the post applied for or to accept the available post. From this provision it no more remains in doubt that the compassionate appointment in pay scale No.1 to 9 in the subordinate services/ministerial services/Class IV services, is as of rule or right, though the Hon'ble Supreme Court held that only in case post is vacant, the appointment can be given. Indefinitely this cannot be left open to the dependant to claim the compassionate appointment in case where the post is not available. 57. Sub-rule (6) of Rule 10 of the Rules 1996 provides to give appointment within two years from the date of submission of the application, by the Department concerned otherwise the matter has to be referred to the Department of Personnel for appointment in other Departments. This apart the Rules 1996 further fortifies that the compassionate appointment has been made as of rule and right under these rules. The Rules, 1996 nowhere provide for the financial criteria as eligible for compassionate appointment. 58. This right of option either to accept the lowest post or wait for suitable post is available, goes to show that sudden financial crisis due to the death of the employee is not the criteria for consideration. In the case in hand the petitioner has been given the appointment on the post of L.D.C. and may be that post would have been vacant. He joined on the post and thus has no right whatsoever to claim another post. In the case in hand the petitioner has been given the appointment on the post of L.D.C. and may be that post would have been vacant. He joined on the post and thus has no right whatsoever to claim another post. In the application (Annexure-4) though it is stated that he is joining on the post of L.D.C. which will not affect his legal right, but the learned counsel for the petitioner fails to show any legal right of the petitioner to claim another post on availability thereof. Otherwise also no question does arise to give appointment to the petitioner on the post of Commercial Taxes Inspector or Accountant. Once he has accepted this appointment, may be with this reservation, that does not give any enforceable legal right to claim higher post. This claim of the petitioner for appointment on the post of Commercial Taxes Inspector or motor Vehicle Inspector or Accountant or Excise Inspector is not legally tenable. Instances are given but if any illegality has been committed by the Government, it will not give any enforceable legal right to the petitioner on that basis. The plea of discrimination cannot be based on the basis of illegal action of the government. 59. What the petitioner is praying for, has been time and again deprecated and discouraged by their Lordships of the Hon'ble Supreme Court. It is to be stated at the cost of repetition, the compassionate appointment is not as a matter of right or course but it is given to overcome the sudden financial crisis or penury conditions of the family as exception to general rule of recruitment. 60. On the facts I have my own reservations whether the petitioner could have been given appointment on compassionate ground in this case. But this claim of the petitioner for the post of subordinate services i.e. in the category of Inspector or Accountant, could not have been granted and rightly it is not granted. 61. 60. On the facts I have my own reservations whether the petitioner could have been given appointment on compassionate ground in this case. But this claim of the petitioner for the post of subordinate services i.e. in the category of Inspector or Accountant, could not have been granted and rightly it is not granted. 61. What it is observed in catena of decisions by Hon'ble the Supreme Court, for appointment on compassionate ground in the services of Central/State Government or Statutory Board, Organisation/Corporation owned or controlled wholly or partially by the Central/State Government, the requirements are, (1) mere death of an employee does not entitle his family members to claim compassionate appointment; (2) the dependant has to apply for appointment on compassionate ground within a reasonable period from the date of death of the government servant; (3) the appointment on compassionate ground cannot be given or offered after a lapse of time; (4) the appointment on compassionate ground is to be given only against Class III or Class IV post, in case the post of lowest pay scale is not vacant in Class III and the post of higher pay scale is available, the appointment may be given with the condition to down grade the post to the lowest pay scale in Class III and on availability of the post of lowest pay scale the employee is to be brought to that post. (5) the appointment on compassionate ground can be given only against the vacant post meaning thereby the supernumerary or other post cannot be created; (6) the appointment on compassionate ground may be given only after laying down a financial criteria; (7) once an appointment on compassionate ground has been given on a vacant post, this claim shall stand fulfilled and cannot be made for other post in future; (8) the consideration for appointment on compassionate ground should have been where as a result of death of the government employee there is a financial crisis in the family and unless it is provided with financial assistance it cannot come over the financial crisis. The appointment on compassionate ground is provided to tide over the sudden financial crisis on account of untimely demise of the sole bread winner of the family; (9) no other dependant of the deceased employee should be in gainful employment either of the Central/State Government or Statutory Board, Organisation/Corporation owned or controlled wholly or partially by the Central/State Government, as the appointment on compassionate ground is provided to meet the immediate financial problem being suffered by the members of the bereaved family; In the result, this writ petition fails and the same is dismissed with costs which is quantified to be Rs. two thousand.Petition Dismissed With Costs. *******