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2013 DIGILAW 2259 (RAJ)

Neeraj Gurjar v. State of Rajasthan

2013-12-12

VINEET KOTHARI

body2013
Hon'ble KOTHARI, J.—The petitioners have filed the present writ petition seeking a direction to the respondent-Commissioner, Regional Development, Indira Gandhi Nahar Project, Bikaner for considering the case of petitioner No. 1, Neeraj Gurjar S/o late Sh. Om Prakash Gurjar, for appointment on compassionate ground, under the Rules of 1996. 2. Unfolding unfortunate events in the present case are that the deceased Om Prakash Gurjar was working as LDC with the respondent-Department and he unfortunately died while in service on 25.9.2003. He had two sons, Umesh Gurjar, born on 6.8.1985 and Neeraj Gurjar born on 1.12.1986. The respondent-State appointed elder son, Umesh Gurjar as LDC on compassionate ground on 11.12.2003 within a period of 3 months of the death of the deceased Government servant Om Prakash Gurjar, but as misfortunate will have it, elder son, Umesh Gurjar also died on 27.9.2007 after about 4 years of his service. The petitioner No. 1 Neeraj Gurjar with the consent of his mother, Bhagwati Devi, applied again for the such compassionate appointment on 2.11.2007. This time, the respondents rejected his application for compassionate appointment as he could not be taken as `dependent' of his elder brother Umesh Gurjar and such communication rejecting his case for compassionate appointment is placed on record as Annex 3 dtd. 9.7.2008. Aggrieved by the same, both the petitioners, younger brother Neeraj Gurjar and the mother, Bhagwati Devi have approached this Court by way of present writ petition. 3. 9.7.2008. Aggrieved by the same, both the petitioners, younger brother Neeraj Gurjar and the mother, Bhagwati Devi have approached this Court by way of present writ petition. 3. The learned counsel for the petitioner relied upon the two decisions of coordinate bench of this Court in the case of Asha Devi vs. State of Rajasthan reported in 2005(1) WLC 237 and in the case of Rajiv Gupta vs. State of Rajasthan reported in 2008 (2) WLC (Raj.) 393 and relying upon the relevant provisions of 1996 Rules including the definition of `dependant' as defined in clause 2(c) of the Rules and Rule 10(2) of the said Rules, he urged that not only the younger brother should be taken as dependent in view of the extended meaning of the said terms given in the definition, but the petitioner Neeraj Gurjar, even with reference to the death of his father Om Prakash Gurjar on 25.9.2003 could be offered this compassionate appointment under the 1996 Rules on an over all and harmonious reading of these provisions and he submitted that the case laws relied upon by him were in the similar circumstances and the Court has directed the respondents to consider the case for appointment of the second dependent in such cases also under the 1996 Rules. 4. On the other hand, Mr. K.R. Saharan has supported the impugned order on the basis of definition of `dependent' and has urged that since the brother is not included in the said definition, the respondents cannot be faulted in denying such compassionate appointment to the petitioner No. 1 and the respondent-authorities had duly taken sanction from the State Government in this regard and the Dy. Secretary CAD vide his letter dtd. 7.6.2008 had clearly stipulated that there is no provision for relaxation in the said Rules of 1996 and consequently, the rejection of the case of the petitioners for compassionate appointment was justified. He however, could not controvert the two judgments of this Court relied upon by the learned counsel for the petitioner. 5. I have heard the learned counsels at length and perused the relevant Rules of 1996 and judgments cited at the Bar. He however, could not controvert the two judgments of this Court relied upon by the learned counsel for the petitioner. 5. I have heard the learned counsels at length and perused the relevant Rules of 1996 and judgments cited at the Bar. The definition of `dependent' under the 1996 Rules as well as Rule 10 giving procedure for dealing with such application along with Rule 13 and 14 for removal of doubts and difficulties in the said Rules are quoted below for ready reference. "2(c) "Dependent" means a spouse, son, unmarried or widowed daughter, adopted son/adopted married daughter legally adopted by the deceased Government servant during his/her life time and who were wholly dependent on the deceased Government servant at the time of his/her death." 10. Procedure: (1) On the death of a Government servant the surviving spouse shall apply for appointment for self or for any other dependent. (2) Where the deceased Government servant is not survived by a spouse the application shall be made by one of the respondents of the deceased Government servant and other dependents shall have to give their consent for his/her candidature. Provided that if more than one of the dependents seek employment, the Head of Department shall select one, keeping in view the overall interest and welfare of the entire family, particularly the minor members." "13. Removal of doubts.-If any doubts arises relating to the application, interpretation and scope of these Rules, it shall be referred to the Government in the Department of Personnel (A-2) whose decision thereon shall be final." 14. Power to remove difficulties.-The State Government may for the purpose of removing any difficulty of existence of which it shall be the sole judge in the implementation of any provision of these Rules, make any general or special order as it may consider necessary or expedient in the interest of fair dealing or in the Public interest." 6. From a perusal of the aforesaid Rules and the aforesaid provisions of the said Rules of 1996, it is clear that there is no bar or negative stipulation in the said Rules for giving the second dependent a chance for the compassionate appointment if the first selected dependent also unfortunately dies within a period not much beyond the date of death of the deceased-Government servant. It is true that the definition of the `dependent' includes only a spouse, son, unmarried or widowed daughter and adopted son/adopted unmarried daughter and does not include the brother as such in the definition of `dependent' and therefore, the present petitioner No. 1, Neeraj Gurjar, though could not be said to be as such covered by the definition of `dependent' in stricto sensu, but the definition itself as well as the Scheme of Rules of 1996, have to be read in a proper perspective and a liberal and extended meaning can be given to the definition to include even a brother, if he is dependent on his brother who died while in service. 7. From the facts narrated above, it is clear that elder son, Umesh Gurjar born on 6.9.1985 was barely 18 years of age when he was appointed on compassionate ground under these Rules of 1996 on 11.12.2003, after the unfortunate death of his father Om Prakash Gurjar on 25.9.2003, when he was only 46 years of age. The said dependent, Umesh Gurjar also died after about 4 years of his joining the said service. He was only 22 years of age, when he died on 27.9.2007. He was able to make both the ends meet of the entire family at tender age between 18 to 22 years with the help of compassionate appointment provided to him under these Rules on 11.12.2003 including the petitioner No. 1, Neeraj Gurjar, who was minor at that time. All other family members were naturally dependent upon him. With his death on 27.9.2007, the family was again naturally in a grave financial crisis and distress and that is why the petitioner No. 1, Neeaj Gurjar also applied for compassionate appointment within two months of his death on 2.11.2007 to restore the financial stability of the family to some extent. It may be noted here that the petitioner No.1, Neeraj Gurjar born on 1.12.1986 was also about 21 years of age when he so applied for the job again and now after 6 years, he is 27 years of age, still waiting for such employment. The distress caused by the death of the father while in service on 25.9.2003 continues even now more aggravated after the death of his brother Umesh Gurjar. 8. The distress caused by the death of the father while in service on 25.9.2003 continues even now more aggravated after the death of his brother Umesh Gurjar. 8. Therefore, the consideration of the case of the petitioner for appointment on the compassionate ground could not be restricted for consideration as the dependent of deceased brother only, but Neeraj Gurjar could be considered as `dependent' of his own father- deceased Government servant, Om Prakash Gurjar, who died on 25.9.2003. 9. Rule 10(2) of the Rules quoted above clearly indicates that the appointment on the compassionate ground where the deceased Government servant is not survived by a spouse, is to be offered to one of the dependents of the deceased Government servant with the consent of other dependents for his/her candidature and in case there are more than one dependents seeking employment, the Head of the Department has to select one keeping in view the overall interest and welfare of the family particularly minor members. Selection of one of the dependents is at the time of compassionate appointment and it does not mean that another dependent cannot be selected and appointed if the earlier selected and appointed `dependent' also dies. The compassionate appointment of one of the dependents does not stop the applicability of 1996 Rules to that family and it is not a one time remedy, completely exhausted upon one such appointment of the family member. 10. In view of the aforesaid position of these Rules of 1996 which do not prohibit compassionate appointment of second dependent in case the first dependent also unfortunately dies, as it has happened in the present case, the respondents ought to have considered the case of the present petitioner as dependent of his father deceased Government servant in view of the fact that the first appointee dependent, Umesh Gurjar, the elder brother also died at the young age of 22 years on 27.9.2007 and the respondents could not reject the application of the petitioner No. 1, Neeraj Gurjar taking a narrow view of the matter that since he could not be said to be `dependent' of his own brother and thus does not fall within the definition of `dependent' as defined under Clause (c) of Rule 2 of the Rules of 1996 and therefore, he could not be considered for such compassionate appointment. 11. 11. As stated above, the petitioner No. 1, Neeraj Gurjar, could not only be deemed to be `dependent' upon his brother and even though relationship of brother is not specifically included in the definition of `dependent' as quoted above, the extended meaning could be given to such definition to cover his case also and even otherwise, he could be so considered as dependent of his father Om Prakash Gurjar. Therefore, the case for compassionate appointment of Neeraj Gurjar was liable to be considered. Besides this, in view of date of death of his own father having not gone past by for a long period and only 4 years had passed since the death of his own father, Om Prakash, on 25.9.2003, his application for compassionate appointment on 2.11.2007 could be very well considered as an application afresh, keeping in view of the fact that earlier appointed dependent, elder brother, Umesh Gujar was no longer in this world. 12. Thus, this court is of the considered opinion that the application for the compassionate appointment could not have been rejected taking a pedantic approach and view and without towards the factual situation of the family, which ought to have been made by the respondents and which is the very purpose of said Rules of 1996 enacted by the State as a welfare measure by a welfare State. The purpose obviously is to allow the family to tide over the immediate and urgent financial crisis and distress in which they can find themselves, upon the death of bread winner government servant, while in service. That purpose once achieved in the present case but lost again shortly thereafter could be achieved again by the respondents by properly considering the case of the present petitioner, Neeraj Gurjar, in correct perspective of the facts and circumstances obtaining in this case. 13. This Court finds that the case laws relied upon by the learned counsel for the petitioner are very nearer to the facts of the present case and while the said judgments could definitely be relied upon by the respondents to allow the case of the petitioner for compassionate appointment, the respondents in a typical manner without referring to these case laws, have rejected the case of the present petitioner. 14. In the case of Smt. Asha Devi Gupta and anr. vs. State of Rajasthan and Ors. 14. In the case of Smt. Asha Devi Gupta and anr. vs. State of Rajasthan and Ors. reported in 205(1) WLC (Raj.) 237 and the learned Single Judge of this Court emphasizing upon the need of taking a lenient and harmonious view while giving compassionate appointment allowed the writ petition in almost similar circumstances, where the husband of the petitioner, Smt. Asha Devi Gupta while working as Head master died on 16.8.1994 and the elder son was given compassionate appointment on the post of LDC on 9.5.1995, but he also unfortunately died in a road accident on 20.1.1996. Smt. Asha Devi applied for compassionate appointment to her younger son, which was rejected by the respondent-Department, but the writ petition came to be allowed by the learned Single Judge of this Court in the following terms: 3. The main object and aim of the Rajasthan Compassionate Appointment of Dependents of Deceased Govt. Servants Rules, 1996 is to give relief to the family of the deceased government employee who has died while in service. The provisions of the Rules cannot be placed in water tight compartment so as to deny the relief to the family. The provisions have to be construed harmoniously with human considerations. Even otherwise, the wife or the mother can nominate any of the close relatives for compassionate appointment if no other family member is in any employment. The State Government has also powers to remove difficulties in implementation of the Rules in special circumstances. In the present case, there is no dispute that though compassionate appointment was given to the eldest son of petitioner No. 1 on account of death of her husband, however, just after six months he also died and the family reached the same stage where the husband of the petitioner had died. The authorities should have taken lenient and humanitarian view in giving compassionate appointment to another eligible member of the family of the petitioner when no other member in the family is in any employment. 4. Accordingly, the writ petition is allowed. The respondents are directed to consider the application of petitioner No.1 for giving compassionate appointment to her younger son, if he is, otherwise, eligible for the same, on appropriate post and pass necessary orders within thirty days from the date of receipt of certified copy of this order. 15. 4. Accordingly, the writ petition is allowed. The respondents are directed to consider the application of petitioner No.1 for giving compassionate appointment to her younger son, if he is, otherwise, eligible for the same, on appropriate post and pass necessary orders within thirty days from the date of receipt of certified copy of this order. 15. Following the said judgment, another learned Single Judge of this Court in the case of Rajiv Gupta vs. State of Rajasthan reported in 2008(2) WLC (Raj.) 393, which appears to be fall out of the same family as the date of death and the position of the Government servant match in two cases, another learned Single Judge allowing the writ petition of younger son Rajiv Gupta held as under. "8. I am of the view that there is no specific bar for not giving appointment to the brother of dependant who was given appointment under the dependent quota in place of his deceased father and after the death of said brother within short span of 5 months of the service, the family reached to the worst financial condition. The aim and object of the Rules of 1996 is not to give temporary relief for short duration but the same is one of the regular benefit given to the family of the deceased Government servant. The present petitioner was initially also eligible for appointment but the mother of the petitioner concerned for his elder brother and the death is such kind of misfortune which can never be foreseen. Therefore, the present case requires sympathetic consideration. 9. Accordingly, the writ petition is allowed. The impugned orders dated 29.5.1998 and 22.7.1998 are set aside. The respondents are directed to consider the application of the petitioner and if necessary then the matter be referred to the Department of Personnel/ Government for considering his case as per rules 13 and 14 of the Rules of 1996 and the application of the petitioner be decided in the light of observations made hereinabove. The above exercise be completed within a period of six months. The petitioner is also free to file a fresh representation/application to the authorities concerned." 16. The above exercise be completed within a period of six months. The petitioner is also free to file a fresh representation/application to the authorities concerned." 16. In the subsequent judgment of Rajiv Gupta (supra), the learned Single Judge also referred to Rule 13 and 14 of the 1996 Rules, which empowers the concerned authority of the State to take appropriate decision for removal of any doubt with regard to scope of these Rules and pass appropriate orders as may be considered necessary or expedient in the interest of fair dealing or in the public interest. Thus, these Rules 13 and 14 of 1996 Rules also clearly empowers the State Government to not only give extended meaning to the word `dependent' and including the brother, if he is dependent on the death of first dependent, he was so appointed under the 1996 Rules, but these Rules which are meant for serving the ends of justice and fair dealing of the case in larger public interest have not been invoked in the present case. 17. This court is fully satisfied that in view of the facts narrated above, the present petitioner No. 1, Neeraj Gurjar, clearly deserves to be considered favourably for appointment on compassionate ground under 1996 Rules not only as dependent of his brother, Umesh Gurjar who also died, but a dependent of his own father-Government servant, Om Prakash Gurjar. 18. Accordingly, this writ petition is allowed. The respondents are directed to favourably consider the application of the petitioner for compassionate appointment within a period of three months from today and offer appointment on suitable post to the petitioner No. 1 within the aforesaid period. No costs. A copy of this order be sent to the parties concerned forthwith and the Chief Secretary, Principal Law Secretary and the Principal Secretary of the Department of Personnel, Government of Rajasthan to consider amendment of the Rules to include the word `brother' also in the definition of `dependent' in 1996 Rules or atleast issue guidelines for consideration of such cases as above for providing compassionate appointment.