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2006 DIGILAW 1198 (RAJ)

Rachna Dixit v. Rajasthan Housing Board

2006-04-17

AJAY RASTOGI

body2006
Judgment Ajay Rastogi, J.-Instant petition has been filed by daughter of late Shri B.S. Dixit, who died while in service on 210.1988 holding post of Jr. Accountant in Office of respondent Housing Board, against order dated 01.09.1996 (Annexure-17), whereby her paternal Uncle (“Tauji”) was appointed as work-charged helper under compassionate rules after obtaining consent of her mother Smt. Savita Sharma and her paternal grand mother. 2. Facts, in brief , are that petitioners father B.S. Dixit while working as Jr. Accountant in Rajasthan Housing Board, died on 210.1988 and left behind him in family his mother, wife Smt. Savita Sharma who was working as Teacher in Government School and re-married to BS Shringi on 04.02.1995 and petitioner who was minor and 5 years of age at that time. 3. Petitioners grand mother and mother both extended their consent vide letters dated 29.03.1990 (Annexure R-7 and R-8), dated 30.07.1996 (Annexure-18) and dated 16.09.1995 (Annexure-19) respectively to consider her paternal elder uncle (Tauji) K.C. Sharma (Respondent No. 3) for his appointment under Rajasthan Recruitment of Dependents of Government Servants Dying while in Service Rules, 1975 (“Rules, 1975”). Treating Respondent No. 3 as closed relative being real elder brother of deceased, who was appointed vide order 01.09.1996 (Annexure-17) as Work-charged Helper in pay scale of Rs. 750-940 in pursuance whereof he joined, being aggrieved, petitioner has challenged its validity after 7 years of his joining. Hence, this petition. 4. Counsel for petitioner vehemently contends that after petitioners mother got re-married in 1995, neither her mother nor grand mother were at all competent to give consent for compassionate appointment under Rules, 1975 particularly when she alone remained legal heirs for seeking appointment as member of family of deceased employee under Rules, 1975; in such circumstances, very order of appointment in favour of Respondent No. 3 who was over-age at relevant time is per se bad and in violation of Rules, 1975. 5. Counsel further submits that as per definition of “Family” under Rule 2(f) of Rules, 1975 only such close relative can be considered as member of family who were dependent upon deceased employee and in absence of any evidence on record, appointment of Respondent No. 3 is violative of Rules, 1975 and so also principles of natural justice. 5. Counsel further submits that as per definition of “Family” under Rule 2(f) of Rules, 1975 only such close relative can be considered as member of family who were dependent upon deceased employee and in absence of any evidence on record, appointment of Respondent No. 3 is violative of Rules, 1975 and so also principles of natural justice. Counsel also urged that grandmother of petitioner cannot be considered to be her guardian in absence of any order passed by competent authority under Section 4(b) of the Hindu Minority and Guardianship Act, 1956, and according to him, no one can be considered to be her guardian and in such circumstances, very consent, which has been obtained from her mother and grandmother is in violation of Act, 1956 and as a consequence, appointment offered to her paternal uncle under Rules, 1975 deserves to be set aside and petitioner being only legal heir left behind deceased employee has a right to seek appointment under Rules, 1975 and denial whereof is violative of her fundamental right under Article 14 of the Constitution. 6. Respondents have filed their reply. So far as respondent Board is concerned, it has been inter alia averred that after consent was furnished by deceaseds mother Sushila Bai and his wife Smt. Savita Sharma vide letters dated 111.1995 and affidavits (Annexure R1/1 to R1/-2), Respondent No. 3 who after death of deceased employee remained to take care of his family members, was offered appointment which is in consonance with Scheme of Rules, 1975. So far as Respondent No. 3 is concerned, it has been averred that petitioners mother initially gave her consent (Annexure R-7) and no objection for appointment of Respondent No. 3 on 29.03.1990 and thereafter petitioner mother and grand mother both furnished their consent vide letter and affidavit (Annexure R1/1 and R1/2) and taking note of the same, his candidature was considered for appointment after examining scheme of Rules, 1975 vide order dated 01.09.1996. It has also been inter alia averred by Respondent No. 3 that since initial appointment was under Work-charged Rules, he approached this Court by filing CWP 2291/2000 for grant of regular status, which was initially rejected but on filing Special Appeal No. 979/2000, Division Bench of this Court vide order dated 16.01.2001 directed respondent Housing Board to consider candidature of Respondent No. 3 for regularisation of service as a consequence whereof , he has been appointed on regular basis as Helper. 7. Counsel for Respondent No. 3 further urged that apart from 10 years service, which Respondent No. 3 has rendered by now, so far as petitioner is concerned, she was minor being 5 years of age at the time of death of her father in 1988 and she attained majority only in September, 2001 much after appointment offered to Respondent No. 3 and there was no concealment or mis-statement made by him at any stage and interference in order impugned at such belated stage will certainly deprive him of legitimate right conferred upon him and the delay which she has caused in approaching this Court in facts and circumstances, certainly dis-entiitles her for claiming any relief . In support of his contention, Counsel for petitioner placed reliance upon decisions of this Court in Shashi Bala vs. State, 2001 (1) RLW 211, Bhupal Singh vs. State, 1988 (2) RLW 428 and Rajendra Singh vs. State, 1994 (2) WLC 722. 8. I have considered contentions of Counsel for the parties and with their assistance, examined material on record. It is not in dispute that Respondent No. 3 is real elder brother of deceased employee-late Shri B.S. Dixit who left behind him his mother, widow and minor daughter (petitioner herein) who was 5 years of age at the time of his death. Undeniably, Savita Sharma (wife of Late Shri B.S. Dixit) was already serving as Teacher on substantive basis in a Government school and got remarried on 04.02.1995. Undeniably, Savita Sharma (wife of Late Shri B.S. Dixit) was already serving as Teacher on substantive basis in a Government school and got remarried on 04.02.1995. It is also not in dispute that petitioners mother gave her consent and no objection which too was endorsed by her grandmother, for appointment of Respondent No. 3 being closed relative of the deceased under Rules, 1975 and only on the basis of their no objection, he was considered and appointed as Work-charged Helper vide order dated 01.09.1996 (Annexure-17) pursuant to which he joined but as he was worked-charged helper, after adjudication of his dispute by this Court in Special Appeal (Writ) No. 979/2000 (Supra), he was appointed on regular basis as Helper and by now has completed more than 10 years of service and even on the date when this petition was filed, he completed almost seven years of service. 9. It is also not in dispute that respondent Board adopted Rules, 1975 for giving compassionate appointment to dependent of its employees who died while in service. Rule 2(f) of Rules, 1975 reads as under:- “(F) “Family” means the family of the deceased Government servant and shall include wife or husband, sons and unmarried or widow daughters and son/daughter adopted according to the provisions of law, by the deceased Government servant, who were dependant on the deceased Government servant. Provided that if no such member of the family be eligible for getting benefit under these rules may be extended to any other close relative of the deceased to be named by the widow or the Guardian of the children of the deceased with the specific approval of the department of personnel.” Rule 2(f) read with Rule 5 of Rules, 1975 clearly postulates that if there is no member of the family of the deceased Government servant viz. wife or husband, sons and unmarried or widow daughters and son/daughter adopted, being eligible for getting benefit for consideration of appointment under Rules, 1975, such benefit can be extended to any other close relative of the deceased to be named by the widow or the guardian of the children of the deceased and after being named, applicant can be considered for appointment under Rules, 1975 keeping in mind that person whom appointment is offered will be taking care of interest and welfare of entire family of the deceased including widow, minor children who were dependent on him. 10. Wife of the deceased and mother of petitioner was already in employment and petitioner was undeniably minor at relevant point of time, was not eligible for getting benefit under Rules, 1975 and her mother since remarried later on, but was widow of her father and her guardian on account of her minor age; as such her mother was considered as competent to give consent and no objection for appointment to elder brother of deceased Government servant being close relative being duly covered under Rule 2(f) of Rules, 1975 and taking note of the same, respondent Board considered Respondent No. 3 for appointment vide order impugned and even on the date, when Respondent No. 3 was appointed under Rules, 1975, she was minor and attained majority only in September, 2001. In such fact situation, in my opinion, no error was committed by respondent Board in offering appointment to the Respondent No. 3 under Rules, 1975. 11. Submission made by Counsel for petitioner that compassionate appointment impugned was in collusion in between Respondent No. 3 and mother of petitioner to defeat her right in seeking appointment under Rules, 1975, in my opinion is of no substance for the reason that when consent was extended by her mother and so also her grand mother there was none other than Respondent No. 3, who could be considered to be eligible for appointment under Rules, 1975 and petitioner since attained majority only in 2001, such presumption drawn by petitioner from material on record is without any basis and based on irrelevant considerations. 12. 12. Next submission of Counsel for petitioner that Respondent No. 3 was not covered under Rule 2(f) of Rules, 1975, whereby only such close relative could be considered who were dependent upon deceased employee and in absence of dependency of Respondent No. 3 being shown by her mother or grand mother, who gave their consent, very appointment of Respondent 3 is in violation of under Rules, 1975 is also of no substance for the reason that term, “family” under Rule 2(f) covers not only son/daughter/widow but also if none from his family is eligible (Supra), compassionate appointment under Rules, 1975 can be extended to close relative of the deceased to be named by the widow or guardian of minor children; and dependency of named close relative of the deceased in my opinion is not required to be shown. Object behind is that close relative to whom appointment is to be offered under Rules, 1975 must be a person who could be taking care of over all welfare and interest of the family including minor children of deceased employee as is evident from Rule 7 of Rules, 1975. 13. Submission of Counsel for petitioner that Respondent No. 3 was over age at the time of impugned appointment, in my opinion is also of no substance for the reason that Rules, 1975 have over-riding effect under Rule 4 thereof and any impediment which comes either in relation to age or qualification can be relaxed by competent authority as in instant case, the authority competent has relaxed age of Respondent No. 3 while appointing him under Rules, 1975. 14. Last submission made by Counsel for petitioner that after remarriage, mother of petitioner was not competent to give consent and her grand mother cannot be considered to be her guardian unless appointed under Act, 1956, is of no substance for the reason that Rule 2(f) of Rules, 1975 prescribes person competent to give consent and sponsor name of close relative and person competent and authorised under Rule 2(f) is the widow or guardian of children of the deceased to sponsor name of “close relative”. In such fact situation, her mother certainly remains as widow of late B.S. Dixit and even if she has remarried later on, that will not obliterate her earlier status so far as invocation of Rules, 1975 is concerned; and her grandmother after remarriage of her mother certainly was considered to be guardian for purpose of invoking Rules, 1975 taking care of minor grand daughter (child of her son deceased employee). 15. Consequently, this writ petition fails and is hereby dismissed alongwith Stay Petition No. 5146/2004. No costs.