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2002 DIGILAW 1606 (RAJ)

Shambhoo Puri v. The State of Rajasthan

2002-09-16

D.N.JOSHI, RAJESH BALIA

body2002
JUDGMENT 1. - Heard learned counsel for the parties. 2. This appeal is directed against the judgment passed by the learned Single Judge dated 23.3.2000, rejecting the petitioner's claim for compassionate appointment, for which he was seeking a mandamus. 3. The petitioner's father, a Constable in the Police Department, died while in service on April 4, 1991. At the time of the death of his father, the petitioner-appellant was 11 years old and, therefore, could not have been offered any appointment on compassionate ground. His mother, the widow of the deceased, could have availed of the benefit of compassionate appointment. However, she chose not to avail the benefit. Instead, she moved an application for referring appointment to the petitioner-appellant on compassionate ground, after he attained the age of maturity, somewhere in 1998. According to the petitioner, on May 21, 1998, he submitted an application in the prescribed form, which was rejected by the communication dated July 15, 1999. The reasons disclosed in the order dated 15.7.99 was that since the father of the appellant died in April, 1991, and the Rajasthan Compassionate Appointment of Dependents of Deceased Government Servants Rules, 1996 (hereinafter called as "the Rules of 1996") had come into force only in 1996-they do not govern the case of the petitioner. 4. Aggrieved with the rejection of that application, the petitioner preferred S.B. Civil Writ Petition No. 3809/99, which has been dismissed by the learned Single Judge, by holding that the petitioner did not have a vested right to claim appointment on compassionate ground, which is only an exception to general rule governing recruitments to any public employment and no such appointment can be offered to anyone after such a long period has elapsed since necessity of giving appointment on compassionate ground came into existence. 5. For coming to the conclusion, the learned Single Judge has relied on the decision of the Supreme Court in Umesh Kumar Nagpal v. State of Haryana and Others, reported in 1994(4) SCC 138 , in which, the Court approved one exception to the rule of recruitment by process of general recruitment under Rules in consonance with Article 16 of the Constitution 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, taking into consideration the fact that unless some source of livelihood is provided, the family would not be able to make both the ends meet, a provision is made in the rules 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. It was held by the Court as under : "For these very reasons, the compassionate employment cannot be granted after a lapse of reasonable period which must be specified in the rules. The consideration for such employment is not a vested right which can be exercised at any time in future. 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." 6. The principle was reiterated by the Supreme Court in Jagdish Prasad v. State of Bihar, 1996(1) SCC 301 , wherein the Court said : "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. Since the death occurred way back in 1971, in which year the appellant was four years old, it cannot be said that he is entitled to be appointed after he attained majority long thereafter. In other words, if that contention Is accepted, It amounts to another mode of recruitment of the dependent of a deceased Government servant which cannot be encouraged dehors the recruitment rules." 7. It is contended by the learned counsel for the appellant that this ought to have been left to the authorities-concerned to decide the question whether the petitioner is to be afforded an appointment under the Rules, 1996. The primary reason disclosed in the order that Rules 1996 does not apply, was erroneous and, therefore, that order ought to be set aside. 8. We find substance in the argument that so far as the reason disclosed in the communication dated 15th July, 1999 is concerned that it does not furnish a valid reason for rejection of the application. The primary reason disclosed in the order that Rules 1996 does not apply, was erroneous and, therefore, that order ought to be set aside. 8. We find substance in the argument that so far as the reason disclosed in the communication dated 15th July, 1999 is concerned that it does not furnish a valid reason for rejection of the application. When a person is seeking appointment is sought govern the eligibility criterion and the procedure, ought to have been adopted. 9. However, we are of the opinion that this Court would not issue a writ of mandamus in view of the aforesaid decision of the Supreme Court in Jagdish Prasad's case (Supra), which is more nearer home to the case at hand. Compassionate appointment to be offered to a dependent of the deceased Government employee who dies In harness is not a vested right and his appointment cannot be kept wafting if he Is minor, till he gets the age of maturity, whatever may be the intervening period, the object of the compassionate appointment as an under exception to general rule Is to tide over the immediate crisis which arises on account of the death of the breadwinner of the family and it ceases to exist with the passage of time and the difficulty, if any, faced by the family, becomes at par with the difficulty faced by any other family who too is in search of employment for any of the members. In such cases, no preferential treatment other the Rules of 1996 can be given. 10. The fact is that though the Rules do not prescribe specifically the particular time-limit upto which the appointment can be kept waiting for the dependent, after the death of the deceased Government servant. However, Scheme in that regard is not silent. In that connection, it is to be noticed that the Rules do provide for making an application within 45 days of death of the incumbent by any person eligible to secure appointment on compassionate ground. It further provides that such application, If made, within time prescribed and no vacancy in the department is immediately available to such appointment can be offered immediately, is to be kept pending at best for two years only, within the Department and employment can be offered as and when the vacancy is available within two years. It further provides that such application, If made, within time prescribed and no vacancy in the department is immediately available to such appointment can be offered immediately, is to be kept pending at best for two years only, within the Department and employment can be offered as and when the vacancy is available within two years. The Rules further envisage that within two years, if no vacancy is available to offer an appointment on compassionate ground, the matter is to be referred to the Department of Personnel, for offering appointment in other Department. Thus, if an application is made soon after within time allowed, the appointment is required to be made within about two years time. In other words, two years time is envisaged reasonable within which appointment to a dependent is expected to be made to tide over the immediate crisis. In the present case, the application has apparently not been moved after the demise of the incumbent, but has been made after 7 years. Therefore, no appointment can be offered to the petitioner under the Rules of 1996.The appeal, therefore, fails and is hereby dismissed. No order as to costs.Appeal Dismissed. *******