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2011 DIGILAW 1716 (RAJ)

Sumer Kanwar v. State of Rajasthan

2011-08-12

ARUN MISHRA, BELA M.TRIVEDI

body2011
Hon'ble TRIVEDI, J.—Heard on the question of admission. 2. The husband of the petitioner died during the course of operation "Pawan" in Sri Lanka. Thereafter, the petitioner has applied for grant of compassionate appointment to her unmarried daughter. However, during the course of pendency of application for compassionate appointment, petitioner's daughter got married. In such circumstances, the Collector, Jaipur has rejected the application for compassionate appointment as her case was not covered under Rule 2(c) of Rajasthan Compassionate Appointment of Dependants of Deceased Government Servant Rules, 1996 (for short, 'Rules of 1996'). Hence, prayer has been made to consider the case of petitioner's daughter for compassionate appointment by relaxing the provisions of Rules of 1996 as an exceptional case. Further prayer has been made for declaring the non-inclusion of married daughter in the definition of dependants as contained in the Rules of 1996 as invalid. 3. Shri M.F. Baig, learned counsel appearing on behalf of the petitioner has submitted that the married daughter ought to have been included in the definition of dependants in the Rules of 1996. The exclusion is arbitrary and thus, definition of Rule 2(c) is unconstitutional. 4. Definition of "Dependant" is contained in Rule 2(c) of the Rules of 1996, which is quoted below:- "2(c) Dependant means a spouse, son, unmarried or widowed daughter, (adopted son/adopted unmarried daughter) legally adopted by the deceased Government servant during his/her life time and who were wholly dependant on the deceased Government servant at the time of his/her death." 5. In our considered opinion, it is hot for the Courts to expand the definition of the dependant. It is matter of policy. The dependants are defined to be spouse, son, unmarried or widowed daughter, adopted son/adopted unmarried daughter, legally adopted by the deceased Government servant. Married daughter cannot be said to be dependant on the deceased employee. The definition of dependant is with a view to give appointment to spouse, son, unmarried or widowed daughter, widow, etc. who are real dependants of the deceased. Such matters are within the purview of the policy of the State Government. It is for the State Government to define such matters and it is not for the Court to widen the scope of the Rules as compassionate appointment cannot be claimed as a matter of right. The definition in Rule 2(c) cannot be said to be unconstitutional and arbitrary in any manner. It is for the State Government to define such matters and it is not for the Court to widen the scope of the Rules as compassionate appointment cannot be claimed as a matter of right. The definition in Rule 2(c) cannot be said to be unconstitutional and arbitrary in any manner. Exclusion of married daughter from the purview of dependants is appropriate. She is not dependant on premarital family. It is trite law that Courts cannot enlarge scope of such policy/rules. It is not for the Court to rewrite the policy/rules. The provision of Rule 2(c) cannot be said to be illegal or arbitrary in any manner. 6. No compassionate appointment can be ordered dehors of scheme as held in Bhawani Prasad Sonkar vs. Union of India & Ors., (2011) 4 SCC 209 . The Apex Court has laid down thus: "20. Thus, while considering a claim for employment on compassionate ground, the following factors have to be borne in mind: (i) Compassionate employment cannot be made in the absence of rules or regulations issued by the Government or a public authority. The request is to be considered strictly in accordance with the governing scheme, and no discretion as such is left with any authority to make compassionate appointment dehors the scheme. (ii) An application for compassionate employment must be preferred without undue delay and has to be considered within a reasonable period of time. (iii) An appointment on compassionate ground is to meet the sudden crisis occurring in the family on account of the death or medical invalidation of the breadwinner while in service. Therefore, compassionate employment cannot be granted as a matter of course by way of largesse irrespective of the financial condition of the deceased/incapacitated employee's family at the time of his death or incapacity, as the case may be. (iv) Compassionate employment is permissible only to one of the dependants of the deceased/incapacitated employee viz. parents, spouse, son or daughter and not to all relatives, and such appointments should be only to the lowest category that is Class III and IV posts." 7. Compassionate appointment is not a source of recruitment. It is an exception to the general rule as laid down in State Bank of India & Anr. vs. Raj Kumar, (2010) 11 SCC 661 = 2010(3) RLW 2343 (SC). Compassionate appointment being an exception has to be confined to policy. Compassionate appointment is not a source of recruitment. It is an exception to the general rule as laid down in State Bank of India & Anr. vs. Raj Kumar, (2010) 11 SCC 661 = 2010(3) RLW 2343 (SC). Compassionate appointment being an exception has to be confined to policy. The Apex Court in State Bank of India vs. Raj Kumar (supra) has laid down thus: "8. It is now well settled that appointment on compassionate grounds is not a source of recruitment. On the other hand it is an exception to the general rule that recruitment to public services should be on the basis of merit, by an open invitation providing equal opportunity to all eligible persons to participate in the selection process. The dependants of employees, who die in harness, do not have any special claim or right to employment, except by way of the concession that may be extended by the employer under the rules or by a separate scheme, to enable the family of the deceased to get over the sudden financial crisis. The claim for compassionate appointment is therefore traceable only to the scheme framed by the employer for such employment and there is no right whatsoever outside such scheme. An appointment under the scheme can be made only if the scheme is in force and not after it is abolished/withdrawn. It. follows therefore that when a scheme is abolished, any pending application seeking appointment under the scheme will also cease to exist, unless saved. The mere fact that an application was made when the scheme was in force, will not by itself create a right in favour of the applicant. 13. Further, where the earlier scheme is abolished and the new scheme which replaces it specifically provides that all pending applications will be considered only in terms of the new scheme, then the new scheme alone will apply. As compassionate appointment is a concession and not a right, the employer may wind up the scheme or modify the scheme at any time depending upon its policies, financial capacity and availability of posts." 8. Compassionate appointment can be granted under the scheme. It cannot be granted to grandson of cousin of employee as held in National Institute of Technology & Ors. vs. Niraj Kumar Singh, (2007) 2 SCC 481 . The Apex Court has laid down thus: "21. Compassionate appointment can be granted under the scheme. It cannot be granted to grandson of cousin of employee as held in National Institute of Technology & Ors. vs. Niraj Kumar Singh, (2007) 2 SCC 481 . The Apex Court has laid down thus: "21. The appointment on compassionate ground, thus, could have been offered only to a person who was the. widow of the deceased or a dependent child. Admittedly, the son of the deceased, Ashutosh Kumar was only one year old at the time of his father's death. He could not, thus, have been given any appointment on compassionate ground. It may be true that Smt. Vidhya Devi filed an application for grant of appointment on compassionate ground in favour of the respondent. But, it now stands admitted that he was not the natural grandson of late Shri B.P. Sinha but was a grandson of his cousin brother. Therefore, he was not entitled for appointment in terms of the scheme of the Institute. The Institute, therefore, committed illegality in granting him such an appointment. Moreover, the purported appointment on compassionate ground had been given in 2001 i.e. after more than 15 years from the date of death of the said Shri B.P. Sinha." 9. Brother could not be offered such appointment as he crossed age of 18 years and was not member of family as held in State of Haryana & Anr. vs. Dhan Singh, (1996) 7 SCC 262 . 10. In State Bank of India & Anr. vs. Somvir Singh, (2007) 4 SCC 778 , the Apex Court has laid down thus: "10. There is no dispute whatsoever that the appellant Bank is required to consider the request for compassionate appointment only in accordance with the scheme framed by it and no discretion as such is left with any of the authorities to make compassionate appointment dehors the scheme. In our considered opinion the claim for compassionate appointment and the right, if any, is traceable only to the scheme, executive instructions, rules etc. framed by the employer in the matter of providing employment on compassionate grounds. There is no right of whatsoever nature to claim compassionate appointment on any ground other than the one, if any, conferred by the employer by way of scheme or instructions as the case may be." 11. Similar view has been taken by the Apex Court in Kendriya Vidyalaya Sangathan & Ors. There is no right of whatsoever nature to claim compassionate appointment on any ground other than the one, if any, conferred by the employer by way of scheme or instructions as the case may be." 11. Similar view has been taken by the Apex Court in Kendriya Vidyalaya Sangathan & Ors. vs. Dharmendra Sharma (2007) 8 SCC 148 . 12. Since married daughter is not included in the definition of dependant as contained in Rule 2(c) of the Rules of 1996, the Collector, Jaipur has rightly rejected her application for compassionate appointment. 13. In view of the aforesaid, we find no ground to entertain the petition. The definition of dependant under Rule 2(c) of the Rajasthan Compassionate Appointment of Dependents of Deceased Government Servants Rules, 1996 cannot be said to be unconstitutional or ultra vires in any manner. Consequently, the writ petition is dismissed.