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2005 DIGILAW 678 (RAJ)

Davendra Singh Rathore v. State of Rajasthan

2005-03-01

S.P.PATHAK

body2005
Judgment B. Prasad, J.-Present special appeal was filed by the appellant assailing the Judgment of the learned Single Judge of this Court dated 26.3.2002. Petitioner has stated that he was appointed on compassionate grounds under The Rajasthan (Recruitment of Dependents of Government Servants Dying While in Service) Rules. 1975 (for short the Rules). His appointment was to be governed by Rule 5 of the rules. Rule 5 reads as under: "5. Recruitment of a member of the family of the deceased.-In case of "deceased Government Servants" one member of his family who is not already employed under the Central/State Government or Statutory Board/ Organisations/ Corporations owned or controlled by the Central/State Government shall, on making an application for the purpose, be given a suitable employment in Government service without delay only against an existing vacancy, which is not within the purview of the State Public Service Commission, in relaxation of the normal recruitment rules, provided such member fulfils the educational qualifications prescribed for the post and is also otherwise qualified for Government service. In the event of non-availability of a vacancy or any of the members of the family, being unqualified or minor is not found suitable or eligible for immediate employment, then such cases should be considered immediately on the availability of the post or any one of them becomes qualified or eligible for such employment under these rules. Provided that recruitment may be made on posts which are within the purview of the Rajasthan Public Service Commission, except the major State Services mentioned in Rule 3, where the Appointing Authority is satisfied in consultation with the Department of Personnel and the Rajasthan Public Service Commission that a dependent of a deceased Government servant is qualified and suitable for appointment to such posts." 2. According to the proviso of this rule, an appointment could be made on a post which was within the purview of the Rajasthan Public Service Commission (R.P.S.C.) if the Appointing Authority is satisfied in consultation with the Department of Personnel and the R.P.S.C. that the dependent of the deceased Govt. servant is qualified and suitable for appointment to such post. From the record, we do not find that any such consultation is available whereby the State Govt. servant is qualified and suitable for appointment to such post. From the record, we do not find that any such consultation is available whereby the State Govt. and the R.P.S.C. has opined that the appointment of the Revenue Inspector (Land Records) was approved by the Appointing Authority in consultation with the Department of Personnel and R.P.S.C. In absence of consultation as envisaged in the proviso under Rule 5, the claim of the petitioner does not appear to be one which requires consideration. 3. The learned Single Judge in his Judgment has referred that the petitioner had earlier filed a writ petition which went upto the Division Bench. Regarding those proceedings, the learned Single Judge has mentioned that the writ petition was disposed of as having become infructuous, then a review petition was filed, then a Division Bench Special Appeal was filed. It has been noticed by the learned Single Judge that the facts of Writ Petition No. 2674/92 have not been mentioned in the present writ petition and that goes to show that in the writ petition, certain facts were held back by the petitioner. 4. The learned Single Judge has also noticed that in another proceedings initiated at the behest of the petitioner, this came on record that the post of Inspector (Land Records) is a promotional post and no direct appointment was possible. In view of the aforesaid, the findings of the learned Single Judge do not appear in any way one which require interference. In the light of the proviso to Rule 5 of the rules which says that appointment can only be made in consultation with the Department of Personnel and the R.P.S.C. if the post is within the purview of the R.P.S.C. That being the position, direct recruitment was not possible on the post claimed by the petitioner 5. The matter can be viewed from another angle wherein the Courts have been considering the matters where the appointment is made as a compassionate appointment. If the employee joins the post, then the rights under the rules stand consumed. In the instant case, the petitioner was given the post of Lower Division Clerk (L.D.C.) which he availed. Doubts could be raised about that appointment also because that was a post within the purview of the R.P.S.C. and it does not appear that proviso to Rule 5 was followed. But since the Govt. In the instant case, the petitioner was given the post of Lower Division Clerk (L.D.C.) which he availed. Doubts could be raised about that appointment also because that was a post within the purview of the R.P.S.C. and it does not appear that proviso to Rule 5 was followed. But since the Govt. has not come up in appeal against it, we would not dilate on that. We would follow the law laid down by this Court in Hemant Chouhan vs. State of Rajasthan, 2001 (3) WLC 616 (Raj) following Supreme Court decisions wherein it has been held that the right to be considered for appointment on the compassionate ground on joining the post offered stood consumed and thereafter no further consideration was possible. 6. The learned Counsel for the appellant further asserted that certain other persons have been appointed and, therefore, there is discrimination in not appointing the petitioner as the others have been appointed. The question of discrimination in the aforesaid background would not arise because the case of those petitioners was not contested properly as observed by the learned Single Judge. Therefore, merits of those cases cannot be gone into in this case. We have to see whether under the rules the petitioner could be appointed or not. In our considered opinion, even for his appointment as a L.D.C., consultation with the Department of Personnel and R.P.S.C. was necessary which is not available on record. As regards the post of Inspector (Land Records) is concerned, the post is a promotional post and no direct recruitment can be made. Thus, as per the proviso to Rule 5 of the rules, the petitioner could not be appointed directly as Inspector (Land Records). Thus, the demand of the petitioner appears to be illegal and the learned single Judge was right in refusing the same. We do not consider that any interference is called for. 7. There is no force in this appeal and the same is dismissed.