Research › Search › Judgment

Rajasthan High Court · body

2012 DIGILAW 1757 (RAJ)

Dharmendra Singh Dhabhai v. State of Rajasthan

2012-08-13

ARUN MISHRA, KUMAR JAIN-I

body2012
Hon'ble JAIN-I, J.—With the consent of party, the writ petition is finally heard. 2. The petitioner in this writ petition has mainly challenged the constitutional validity of Rule 10 of the Rajasthan Compassionate Appointment of Dependents of Deceased Government Servant Rules, 1996 (hereinafter referred to as the “Rules of 1996”) to the extent it prescribes limitation for filing application for compassionate appointment. The petitioner has made the following prayers in the writ petition:- “(A) May declare that prescribing limitation for filing application for compassionate appointment under the Rules is arbitrary, unethical and illegal and therefore to that extent the provisions of Rule 10 of 1996 Rules be declared as ultravires. (B) May declare the order dated 8.7.98 Annexure 4 issued by the Supdt. Of Police Ajmer, as illegal, arbitrary and be quashed. (C) Direct the respondents to treat the application filed by the petitioner within limiation, for appointment on compassionate grounds under the Rules for such posts for which he may be found suitable. (D) Direct the respondent to give appointment to the petitioner as a Ward of deceased Government servant from the date of his application with all consequential benefits. (E) May give such other relief as this Hon'ble Court may deem proper in the facts and circumstances of the case with costs.” 3. The petitioner, in this writ petition, has averred that his father late Shri Tej Singh died while in service on 28th January, 1993. He was working as Assistant Sub Inspector of Police. The petitioner was minor of 14 years of age at the time of death of his father. The other two children were of 11 years and 8 years respectively. His mother was in shock, therefore, no application could be filed by petitioner's mother for appointment under the then existing Rules i.e. Rajasthan Recruitment of Dependants of Government Servants dying while in service Rules, 1975 (hereinafter referred as the Rules of 1975). The petitioner passed his Secondary Examination on 30th June, 1994. He passed his Higher Secondary Examination on 12.6.1996 and applied for compassionate appointment through his mother on the post of L.D.C. under the Rules of compassionate appointment. The application was forwarded by Dy. I.G.P. Range Ajmer to Dy. I.G.P. Head Quarter at PHQ, Jaipur vide letter dated 17th June, 1998. The petitioner passed his Secondary Examination on 30th June, 1994. He passed his Higher Secondary Examination on 12.6.1996 and applied for compassionate appointment through his mother on the post of L.D.C. under the Rules of compassionate appointment. The application was forwarded by Dy. I.G.P. Range Ajmer to Dy. I.G.P. Head Quarter at PHQ, Jaipur vide letter dated 17th June, 1998. The Superintendent of Police, Ajmer informed the petitioner vide letter dated 8th July, 1998 that since under the provisions of Rule 10(3) of the new Rules of 1996, the application for such compassionate appointment has not been made within 45 days from the date of death of his father, his case cannot be considered for compassionate appointment. Thereafter, petitioner sent a representation and ultimately filed the present writ petition on 15th October, 1998. 4. The respondents filed reply to writ petition, wherein, they admitted that petitioner's father late Shri Tej Singh, the then Assistant Sub Inspector of Police, died while in service, on 28th January, 1993. The petitioner submitted an application for compassionate appointment on 3rd February, 1998. The compassionate appointment is given to the dependant as a immediate relief, which cannot be claimed after so many years. The Government of Rajasthan issued a notification dated 15th October, 1997 directing all the departments to entertain application if it is filed within 45 days from the date of death of deceased government servant. The petitioner has filed the application for compassionate appointment after 5 years from the date of death of his father; whereas limitation for filing the application under the present Rule is only 45 days. It is, therefore, prayed in the reply that the writ petition be dismissed. 5. Submission of learned counsel for the petitioner is that when petitioner's father died in 1993, while in service, the “Rules of 1975” were applicable, under which, no period of limitation was prescribed to submit application for appointment on compassionate ground. The petitioner was eldest son of deceased father and was minor at the time of death of his father, therefore, it was not possible for him to apply for appointment as he was ineligible at that time. The petitioner was eldest son of deceased father and was minor at the time of death of his father, therefore, it was not possible for him to apply for appointment as he was ineligible at that time. He further submitted that prescribing the period of limitation of 45 days in the “Rules of 1996”, for filing the application from the death of Government servant by minor children or by a spouse, who is uneducated and unqualified has no nexus for the purpose to be achieved and, therefore, Rule 10 of the Rules of 1996 is arbitrary, illegal and unconstitutional. 6. No one has appeared on behalf of respondents despite service of notice. 7. We have considered the submission of learned counsel for the petitioner and examined the relevant rules. It is relevant to mention that at the time of framing of Rules of 1996, the period of limitation for filing the application was 45 days. However, vide notification dated 11.9.2002, an amendment in Rule was made and period to file application was provided as 90 days in place of 45 days, in sub-rule (3) of Rule 10 of the Rules of 1996. Amended Rule 10(3), 11 and 15 are reproduced as under:- “10(3)- Such application shall be made to the Head of the office/Department in the proforma attached as Annexure-A to these rules, within a period of 90 days from the date of death of the Government Servant. The applicant shall submit an affidavit in support of monthly income (from all sources) of all the family members mentioned in Column No.7 of Pat-I of the application; Provided that in an exceptional case where the State Government in the Department of Personnel is satisfied that the operation of provisions of this sub-rule causes financial hardship to the family of the deceased Government Servant and considers it necessary or expedient to relax the provisions of this sub-rule to such extent and subject to such conditions as it may consider necessary for dealing with the case in a just and equitable manner.” “11 Over-riding effect.- These Rules and any order issued thereunder shall have effect notwithstanding anything to the contrary contained in any rules, regulations or orders in force at the commencement of these Rules.” “15. Repeal and savings. The existing Rajasthan Recruitment of Dependants of Government Servants Dying While in Service Rules, 1975 and any order issued thereunder are hereby repealed. Repeal and savings. The existing Rajasthan Recruitment of Dependants of Government Servants Dying While in Service Rules, 1975 and any order issued thereunder are hereby repealed. Provided that any action taken under the rules and orders so repealed/superseded shall be deemed to have been taken under the provisions of these rules.” 8. The Division Bench of this Court in Board of Revenue for Rajasthan & Anr. vs. Rajendra, 2001(1) RLR 500 = RLW 2001(2) Raj. 1006 has held that after new Rules of 1996 came into force, the old Rules of 1975 ceased to exist and no longer survive. Even if a Government servant died when old Rules were in force, appointment of his dependant on compassionate ground after commencement of new Rules shall be governed by new Rules. 9. The Hon'ble Apex Court in State Bank of India & Anr. vs. Raj Kumar, reported in (2010) 11 SCC 661 = 2010(3) RLW 2343 (SC) held, that an appointment under the scheme can be made when 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. Hon'ble Apex Court specifically held that 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. Paras 8 & 12 of the judgment are reproduced 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 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) 10. In view of above authoritative pronouncements by Division Bench as well as Hon'ble Apex Court, it is clear that when the application in the present case was filed in the year 1998, the Rules of 1996 were in force and the same were and are applicable. 11. However, in the present case, the challenge is about constitutional validity of Rule 10 of Rules of 1996 so far it prescribes the limitation for filing the application for compassionate appointment. The relevant rule is sub-rule (3) of Rule 10 of the Rules of 1996, which has been reproduced above. The period for filing the application was originally 45 days, which was amended to 90 days w.e.f. 11th September, 2002. 12. The relevant rule is sub-rule (3) of Rule 10 of the Rules of 1996, which has been reproduced above. The period for filing the application was originally 45 days, which was amended to 90 days w.e.f. 11th September, 2002. 12. The validity of Rule 10 was examined by a Single Bench of this Court and it was held that the very purpose of compassionate appointment is to redeem the family from immediate financial hardship, the amendment contained in sub-rule (3) of Rule 10 to make it available to a dependant whenever he attains majority, cannot be sustained in the eye of law being violative of the provisions of Articles 14 & 16 of the Constitution. The judgment of Single Bench was considered by Division Bench in Board of Revenue for Rajasthan & Anr. vs. Rajendra, reported in 2001(1) RLR 500 = RLW 2001(2) Raj. 1006. In Para 11, the judgment of Single Bench was quoted and the Division Bench observed that view of Single Bench is correct. Para 11 of the judgment is reproduced as under:- “11. We have perused the judgment rendered by the learned Single Judge. The learned Single Judge was considering the amendment contained in sub-rule (3) of Rule 10 of the Rules of 1996 to make appointment available to a dependant whenever he attains majority. The learned Judge on elaborate consideration of the entire case law on the subject came to the conclusion that the amendment contained in clause (3) of Rule 10 is violative of Article 14 and 16 of the Constitution and is liable to be struck down. It is useful to reproduce Para 30: “Thus, in view of the above, as the very purpose of compassionate employment is to redeem the family from immediate financial hardship, the dependant whenever he attains majority, cannot be sustained in the eye of law being violative of the provisions of Articles 14 and 16 of the Constitution. It opens a mode of employment by succession which is not permissible in law. If the eldest dependant attains the age of 18 years after an inordinate delay from the death of the employee, offering appointment to him at such a belated stage would not serve the purpose of granting immediate financial relief to redeem the grieved family from financial constraints. Therefore, the said clause, being ultra vires, is struck down. If the eldest dependant attains the age of 18 years after an inordinate delay from the death of the employee, offering appointment to him at such a belated stage would not serve the purpose of granting immediate financial relief to redeem the grieved family from financial constraints. Therefore, the said clause, being ultra vires, is struck down. However, it is clarified that the judgment shall not have any bearing on the appointments already made under the Rules and it will have a prospective effect. Even in case of the petitioner, if he had already been appointed on compassionate ground, it is not desirable to disturb him." In our opinion, the view taken by Dr. Justice Chauhan is correct and as has rightly been pointed out by him, the mode of employment by succession is not permissible in law and if the eldest dependant attains the age of 18 years after an inordinate delay from the date of death of the employee, offering appointment to him at such a belated stage would not serve the purpose of granting immediate financial relief to redeem the grieved family from financial constraints. The above view was taken by the learned Single Judge after discussing the entire case law on the subject. In our opinion, the above judgment does not require reconsideration by the Division Bench. Mr. Rastogi cited (2) Narendra Kumar Sharma vs. The State of Rajasthan & ors. 1991 (2) RLT 182 = 1992(3) WLC 400, and submitted that for invoking the Rules of 1975 even if brother is in employment the same can not be denied to the petitioner”. (emphasis supplied) 13. The Division Bench in Board of Revenue's case (supra) further considered Rule 10(3) of the Rules of 1996 and observed/held as under in Paras 19 & 20, which are also reproduced as under:- We shall now deal with Rule 10(3) where in the limitation of 45 days from the date of death of deceased Government servant which has since been extended to 90 days has been provided with the object of ensuring that appointment on compassionate ground is given only in deserving cases to dependants of a Government servant dying in harass to mitigate the immediate hardship and at the earliest point of time. The Supreme Court in (19) H.S.E.B. vs. Naresh Tanwar, (1996) 8 SCC 23 , held that such concession cannot be allowed to be extended over the years so that by such long lapse of time the heir of the deceased employee attains majority and then becomes eligible for being considered for appointment. The above view has again been affirmed by the Supreme Court in the recent judgment in the case of (11) Sanjay Kumar vs. State of Bihar, AIR 2000 SC 2782 . (20). Delay has always been held to be a valid criteria to refuse appointment on compassionate ground, object being to provide immediate assistance to the family in times of sudden financial crisis. In this context we may simply refer to the following decisions without extracting the passages: Sanjay Kumar vs. State of Bihar AIR 2000 SC 2782 (12) State of UP vs. Parasnath, (1998) 2 SCC 412 (delay of 17 years) (13) HSEB vs. Hakim Singh, (1998) 8 SCC 85 (delay of 14 years) HSEB vs. Naresh Tanwar, (1996) 8 SCC 23 (delay of 12 years) (14).Jagdish Prasad vs. State of Bihar, (1996) 1 SCC 301 (delay of 23 years) (15) Union of India vs. Bhagwan Singh, (1995) 6 SCC 476 (delay of 20 years)” 14. Apart from above, the Hon'ble Apex Court in number of judgments have already 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 lapse of time when crisis is over. 15. 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. 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. 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. 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. 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. 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 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.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. 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).” 16. In view of above discussion, we find that object of Rules of 1996 is to ensure that appointment on compassionate ground is given only in deserving cases to dependants of a Government Servant dying in harness to mitigate the imminent hardship at the earliest point of time. Such concession cannot be allowed to be extended over the years so that by such long lapse of time the heir of deceased employee attains majority and then becomes eligible for being considered for appointment. In these circumstances, we find that Rule 10(3) of the Rules of 1996 is perfect, just and constitutional and intravires and cannot be said to be unconstitutional or ultravires to any provision of Constitution. 17. In these circumstances, we find no merit in this writ petition and the same is, accordingly, dismissed with no order as to costs. Stay Application No. 4425/1998 also stands dismissed.