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2012 DIGILAW 1756 (RAJ)

Mehfooj Ahmed v. Jaipur Nagar Nigam

2012-08-13

ARUN MISHRA, KUMAR JAIN-I

body2012
Hon'ble JAIN-I, J.—At the request of parties, the writ petition was heard finally. 2. Petitioner initially preferred a writ petition before Single Bench with the prayer that respondents be directed to give appointment to the petitioner on the post of Class IV servant on compassionate ground in place of late Shri Ballu Khan with all consequential benefits. 3. The matter was listed before Single Bench on 22nd November, 2011. Learned Single Judge was of the view that issue involved in the present matter is substantially the issue, which is involved in the case of Dharmendra Singh Dhabhai vs. State of Raj. & ors. (S.B. Civil Writ Petition No.5389/1998), which has been sent for disposal to Division Bench, as constitutional validity of Rule 10 of the Rajasthan Compassionate Appointment of Dependents of Deceased Government Servant Rules, 1996 is under challenge, therefore, directed the Registry to place this matter before Hon'ble the Chief Justice to take a decision as to whether it can also be decided by Division Bench. The matter was thereafter placed before Hon'ble the Chief Justice, who passed an order to list the matter before Division Bench. 4. Briefly stated, the facts of the writ petition are that late Shri Ballu Khan, father of petitioner was initially appointed as a Bisti in Nagar Nigam, Jaipur on 10.10.1966 and he died on 22nd November, 1992 while in service. The petitioner was minor at the time of death of his father, as date of birth of petitioner was only 23rd August, 1980. He became major on 23rd August, 1998. He filed an application for compassionate appointment on 26th June, 1998. Petitioner also came to know that respondents have given appointment to one Abdul Vahid – respondent No.4 in place of late Shri Ballu Khan, whereas Abdul Vahid was not the legal heir of late Shri Ballu Khan. When petitioner made a complaint about it, then respondents cancelled the appointment order of respondent No.4 vide order dated 1st July, 2002. However, appointment was not given to petitioner. Therefore, a notice of demand of justice dated 16th December, 2002 was served upon the respondents, but no heed was given to it. Thereafter, the present writ petition was filed on 7th February, 2003. 5. Respondent No.4 Abdul Vahid filed his reply to writ petition, wherein he stated that he was adopted son of late Shri Ballu Khan. Therefore, a notice of demand of justice dated 16th December, 2002 was served upon the respondents, but no heed was given to it. Thereafter, the present writ petition was filed on 7th February, 2003. 5. Respondent No.4 Abdul Vahid filed his reply to writ petition, wherein he stated that he was adopted son of late Shri Ballu Khan. Therefore, he was rightly given appointment in his place. It was also stated that Smt. Waheedan mother of respondent No.4 filed an affidavit in the office of respondents, wherein she desired that in place of her husband, her son may be appointed. He also pleaded that against order dated 1st July, 2002, whereby his services have been terminated, he has filed S.B. Civil Writ Petition No.4663/2002. 6. Submission of learned counsel for the petitioner is that petitioner's father was an employee of respondent Nagar Nigam, Jaipur and he died while in service on 22nd November, 1992. The petitioner being the son of late Shri Ballu Khan was entitled for compassionate appointment, but on the date of death of Ballu Khan, he was only minor and soon after attaining majority, he filed an application before respondents on 26th June, 1998 for compassionate appointment, but he was not given appointment. Therefore, he served a notice of demand of justice and filed a writ petition. 7. Learned counsel for the petitioner submitted that the Division Bench of this Court in State of Rajasthan & Ors. vs. Indra Singh Solanki & Ors. (2009(1) WLC 548) held that the dependents of deceased government servant, who died before promulgation of Rules of 1996 i.e. before January 25, 1997 shall be governed by the Rules of 1975 and the orders issued thereunder. Rules of 1996 shall not be made applicable to such cases. He, therefore, submitted that under the Rules of 1975, there was no limitation prescribed for filing the application, rather there was a provision for making an application for compassionate appointment soon after attaining majority. Therefore, respondents were required to give appointment to the petitioner under the compassionate appointment Rules of 1975. Since respondents failed to perform their statutory duty under the Rules of 1975, therefore, necessary writ may be issued against the respondents directing them to give compassionate appointment to the petitioner. 8. Learned counsel for the respondents submitted that late Shri Ballu Khan expired way back in the year 1992. Since respondents failed to perform their statutory duty under the Rules of 1975, therefore, necessary writ may be issued against the respondents directing them to give compassionate appointment to the petitioner. 8. Learned counsel for the respondents submitted that late Shri Ballu Khan expired way back in the year 1992. Now, a period of about 20 years have expired. The petitioner applied for compassionate appointment in the year 1998. The Rules of 1975 were repealed by new Rules of 1996, which came into force on January 25, 1997. He also submitted that as per Rules of 1996, the petitioner is not entitled for compassionate appointment as application was not made in time prescribed in Rules. He also submitted that Rules of 1975 were not and cannot be made applicable in the present case. Therefore, there is no merit in the writ petition and the same is liable to be dismissed. 9. We have considered the submission of learned counsel for the parties. 10. So far as facts of the case are concerned, the same are not in dispute that petitioner's father expired on 22nd November, 1992 while in service. Petitioner was minor at the time of death of his father. Petitioner filed an application for compassionate appointment on 26th June, 1998, as per averments made in Para 4 of the writ petition. At the time of death of petitioner's father, the Rajasthan Recruitment of dependents of Government Servant dying while in service Rules, 1975 (for short the Rules of 1975) were in force. At the time of filing an application in 1998 for compassionate appointment, the Rules namely, 'Rajasthan Compassionate Appointment of Dependents of deceased Government Servant Rules, 1996' (for short the Rules of 1996) were in force. 11. In State of Raj. & Ors. vs. Indra Singh Solanki (supra), the Division Bench of this Court held, that dependents of the deceased government servant, who died before promulgation of Rules of 1996 i.e. January 25, 1997 shall be governed by the Rules of 1975 and the orders issued thereunder. Rules of 1996 shall not be made applicable to such cases. Para 6(1) of the judgment is reproduced as under:- “6(1)- The dependents of the deceased Government Servants who died before promulgation of Rules of 1996, i.e. before January 25, 1997 shall be governed by the Rules of 1975 and the orders issued thereunder. Rules of 1996 shall not be made applicable to such cases. Para 6(1) of the judgment is reproduced as under:- “6(1)- The dependents of the deceased Government Servants who died before promulgation of Rules of 1996, i.e. before January 25, 1997 shall be governed by the Rules of 1975 and the orders issued thereunder. Rules of 1996 shall not be made applicable to such cases. The Government servants who died before January 25, 1997 their cases have to be decided in view of Rules of 1975.” 12. It is relevant to mention that a Division Bench of this Court in Board of Revenue for Rajasthan & Anr. vs. Rajendra, reported in 2001(1) RLR 500 = RLW 2001(2) Raj. 1006 had already considered the issue in question and had held that after coming into force of new Rules of 1996, the old Rules of 1975 ceased to exist and no longer survive. Even if Government Servant died when old Rules were in force, appointment of his dependents on compassionate ground after commencement of new Rules shall be governed by new Rules. 13. It appears that judgment of Division Bench in Board of Revenue vs. Rajendra (supra) was not brought to the notice of Division Bench while deciding the case of State of Rajasthan & Ors. vs. Indra Singh Solanki (supra). 14. In view of above, it is clear that there are two contrary views of two different Division Bench on the point as to which of the Rules i.e. Rules of 1975 or Rules of 1996 will apply, where the dependents of the deceased Government Servants, who died before promulgation of Rules of 1996, file an application for compassionate appointment after coming into force of Rules of 1996. Hence, the matter would have been referred to larger Bench, but we find that now there is direct judgment on the point by Hon'ble Apex Court in State Bank of India & Anr. vs. Raj Kumar, reported in (2010) 11 SCC 661 = 2010(3) RLW 2343 (SC), wherein Their Lordships of the Apex Court has held that the scheme i.e. in force, when the application is actually considered, and not the scheme that was in force earlier when the application was made, will be applicable. Paras 8 & 12 of the judgment read as under:- “8. It is now well settled that appointment on compassionate grounds is not a source of recruitment. Paras 8 & 12 of the judgment read as under:- “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 be itself create a right in favour of the applicant.” “12. Obviously, therefore, there can be no immediate or automatic appointment merely on an application. Several circumstances having a bearing on eligibility, and financial condition, up to the date of consideration may have to be taken into account. As none of the applicants under the scheme has a vested right, the scheme that is in force when the application is actually considered, and not the scheme that was in force earlier when the application was made, will be applicable.” (emphasis supplied) 15. In view of above authoritative pronouncement by Hon'ble Apex Court on the point, it is held that the Rules, which are in force on the date of consideration of the application are to be made applicable. Since the application, in the present case, was filed in the year 1998, therefore, Rules of 1996 will apply in the present case. The deceased Government servant died in the year 1992, the application for compassionate appointment was filed in the year 1998. Since the application, in the present case, was filed in the year 1998, therefore, Rules of 1996 will apply in the present case. The deceased Government servant died in the year 1992, the application for compassionate appointment was filed in the year 1998. As per Rule 10(3) of the Rules of 1996, the period of limitation for filing the application was 45 days, therefore, the application was highly belated. Even otherwise, after such a long period, the compassionate appointment cannot be offered to the petitioner. 16. In view of judgment of Hon'ble Apex Court in State Bank of India vs. Raj Kumar (supra), it is clear that the law laid down by this Court in State of Rajasthan & Ors. vs. Indra Singh Solanki (supra) does not hold good and is impliedly over-ruled.. 17. Apart from above, it is relevant to mention that compassionate appointment is not a vested right, which can be exercised at any time in future. It cannot be claimed or offered after a lapse of time when the crisis is over. This Court in State of Rajasthan & Anr. vs. Kumari Urfeen Sabri (D.B. Civil Special Appeal No.17/2012) decided on 26th July, 2012 considered the various judgments of Hon'ble Apex Court and held that compassionate appointment is not a vested right, which can be exercised at any time in future. It cannot be claimed or offered after a lapse of time when crisis is over. Paras 10 to 13 of the judgment are reproduced as under:- “10. Hon'ble Apex Court in case of State of J&K & Ors. vs. Sajad Ahmed Mir (supra) held that the compassionate appointment is an exception to the general rule. Normally, an employment in the Government or other public sectors should be open to all eligible candidates who can come forward to apply and compete with each other. It is in consonance with Article 14 of the Constitution. On the basis of competitive merits, an appointment should be made to public office. This general rule should not be departed from except where compelling circumstances demand, such as, death of the sole breadwinner and likelihood of the family suffering because of the setback. It is in consonance with Article 14 of the Constitution. On the basis of competitive merits, an appointment should be made to public office. This general rule should not be departed from except where compelling circumstances demand, such as, death of the sole breadwinner and likelihood of the family suffering because of the setback. Once it is proved that in spite of the death of the breadwinner, the family survived and substantial period is over, there is no necessity to say “goodbye” to the normal rule of appointment and to show favour to one at the cost of the interests of several others, ignoring the mandate of Article 14 of the Constitution. Para 11 of the judgment is reproduced as under :- “11. We may also observe that when the Division Bench of the High Court was considering the case of the applicant holding that he had sought “compassion”, the Bench ought to have considered the larger issue as well and it is that such an appointment is an exception to the general rule. Normally, an employment in the Government or other public sectors should be open to all eligible candidates who can come forward to apply and compete with each other. It is in consonance with Article 14 of the Constitution. On the basis of competitive merits, an appointment should be made to public office. This general rule should not be departed from except where compelling circumstances demand, such as, death of the sole breadwinner and likelihood of the family suffering because of the setback. Once it is proved that in spite of the death of the breadwinner, the family survived and substantial period is over, there is no necessity to say “goodbye” to the normal rule of appointment and to show favour to one at the cost of the interests of several others ignoring the mandate of Article 14 of the Constitution.” 12. In Eastern Coalfields Limited vs. Anil Badyakar & Ors. (supra), the Hon'ble Supreme Court considered its number of earlier judgments on the point and held that compassionate appointment is not a vested right which can be exercised at any time in future. It cannot be claimed or offered after a lapse of time when crisis is over. Para 7 to 15 and 20 to 22 are reproduced as under :- “7. It cannot be claimed or offered after a lapse of time when crisis is over. Para 7 to 15 and 20 to 22 are reproduced as under :- “7. So far as the question of nature and object of appointment on compassionate ground, it is relevant to take note of what is stated by this court in the case of Umesh Kumar Nagpal vs. State of Haryana (1994) 4 SCC 138 : “6.....The compassionate employment cannot be granted after a lapse of a 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." 8. In Jagdish Prasad vs. State of Bihar (1996) 1 SCC 301 , it was observed that :- “3...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." 9. In MMTC Ltd. vs. Pramoda Dei (1997) 1 SCC 390, it is observed by the court :- "4....As pointed out by this Court, the object of compassionate appointment is to enable the penurious family of the deceased employee to tide over the sudden financial crisis and not to provide employment and that mere death of an employee does not entitle his family to compassionate appointment." 10. In the case of S. Mohan vs. Government of T.N. (1998) 9 SCC 485 ,the court stated that :- "4....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." 11. This court has observed in Director of Education (Secondary) vs. Pushpendra Kumar (1998) 5 SCC 192 :- "8. This court has observed in Director of Education (Secondary) vs. Pushpendra Kumar (1998) 5 SCC 192 :- "8. The object underlying a provision for grant of compassionate employment is to enable the family of the deceased employee to tide over the sudden crisis resulting due to death of the bread-earner which has left the family in penury and without any means of livelihood. Out of pure humanitarian consideration and having regard to 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 for giving gainful appointment to one of the dependants of the deceased who may be eligible for such appointment. Such a provision makes a departure from the general provisions providing for appointment on the post by following a particular procedure. Since such a provision enables appointment being made without following the said procedure, it is in the nature of an exception to the general provisions. An exception cannot subsume the main provision to which it is an exception and thereby nullify the main provision by taking away completely the right conferred by the main provision. Care has, therefore, to be taken that a provision for grant of compassionate employment, which is in the nature of an exception to the general provisions, does not unduly interfere with the right of other persons who are eligible for appointment to seek employment against the post which would have been available to them, but for the provision enabling appointment being made on compassionate grounds of the dependant of a deceased employee. In Umesh Kumar Nagpal vs. State of Haryana this Court has taken note of the object underlying the rules providing for appointment on compassionate grounds and has held that 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." 12. In the case of Sanjay Kumar vs. State of Bihar 2000) 7 SCC 192, the court has stated that :- "3...This Court has held in a number of cases that compassionate appointment is intended to enable the family of the deceased employee to tide over sudden crisis resulting due to death of the breadearner who had left the family in penury and without any means of livelihood." 13. In the case of Punjab National Bank vs. Ashwini Kumar Taneja (2004) 7 SCC 265 , it was observed by the court that:- "4......It is to be seen that the appointment on compassionate ground is not a source of recruitment but merely an exception to the requirement regarding appointments being made on open invitation of application on merits. Basic intention is that on the death of the employee concerned his family is not deprived of the means of livelihood. The object is to enable the family to get over sudden financial crisis." 14. In so far as delay in approaching the authorities for such appointment is considered by this court in the case of Union of India vs. Bhagwan Singh (1995) 6 SCC 476 , it was held as follows : "8. It is evident, that the facts in this case point out, that the plea for compassionate employment is not to enable the family to tide over the sudden crisis or distress which resulted as early as September 1972. At the time Ram Singh died on 12-9-1972 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, we are of the view 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." 15. In the case of Haryana State Electricity Board vs. Naresh Tanwar (1996) 8 SCC 23 , it was stated that :- "9. In the case of Haryana State Electricity Board vs. Naresh Tanwar (1996) 8 SCC 23 , it was stated that :- "9. It has been indicated in the decision of Umesh Kumar Nagpal that 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. In the other decision of this Court in Jagdish Prasad case, it has been also indicated that 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." 20. The principles indicated above would give a clear indication that the compassionate appointment is not a vested right which can be exercised at any time in future. The compassionate employment cannot be claimed and offered after a lapse of time and after the crisis is over. 21. In the instant case the employee died in harness in the year 1981 and after a long squabble by the dependents of the deceased, they arrived at a settlement that the son-in-law of the second daughter who is unemployed may request for appointment on compassionate grounds. The request so made was accepted by the Personal Manager of the Company subject to the approval of the Director of the Company. The Director (P) , who is the competent authority for post facto approval, keeping in view the object and purpose of providing compassionate appointment has cancelled the provisional appointment on the ground that nearly after 12 years from the date of death of the employee such an appointment could not have been offered to the so called dependent of the deceased employee. 22. In our considered view, the decision of the employer was in consonance with Umesh Kumar Nagpal case and the same should not have been interfered with by the High Court. Accordingly, we allow this appeal and set aside the orders passed by the High Court. There will be no order as to costs.” (emphasis supplied) 13. 22. In our considered view, the decision of the employer was in consonance with Umesh Kumar Nagpal case and the same should not have been interfered with by the High Court. Accordingly, we allow this appeal and set aside the orders passed by the High Court. There will be no order as to costs.” (emphasis supplied) 13. Looking to the facts of the present case that Smt. Nazma died way back in the year 2000 while in service, the ratio laid down by the Apex Court in Eastern Coalfields Limited vs. Anil Badyakar and Ors. (supra) is fully applicable in the present case where it is held that compassionate appointment is not a vested right which can be exercised at any time in future. It cannot be claimed or offered after a lapse of time when crisis is over. In these circumstances, we are of the view that the directions given by Single Bench are not in conformity with the law laid down by Hon'ble Apex Court in State of J & K & Ors. vs. Sajad Ahmed Mir (supra) and Esatern Coalfields Limited vs. Anil Badyakar & Ors. (supra).” 18. In view of above, it is clear that it is settled position of law that compassionate appointment is not a vested right and cannot be claimed after a lapse of time. So far as present case is concerned, the father of petitioner died 20 years ago i.e. in the year 1992. He filed an application for compassionate appointment in the year 1998 and now we are in 2012, therefore, we are of the view that petitioner is not entitled to the relief claimed in this writ petition. 19. In view of above discussion, we do not find any merit in this writ petition and the same is, accordingly, dismissed with no order as to costs.