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2015 DIGILAW 1387 (RAJ)

Jitendra Kumar v. State of Rajasthan

2015-07-24

AJIT SINGH, ANUPINDER SINGH GREWAL

body2015
JUDGMENT : Anupinder Singh Grewal, J. The instant appeal is directed against the orders of the Single Bench dated 17.09.2012 & 30.01.2013, whereby the writ petition filed by the appellant seeking appointment on compassionate ground and application for its review respectively were dismissed. 2. The mother of the appellant, who was working as Nurse Grade-I, expired on 29.05.1993. The appellant had preferred an application for appointment on compassionate grounds, which was rejected vide order dated 29.07.1994 on the ground that he was minor. The appellant, on attaining majority and after passing the Secondary Examination, preferred another application for compassionate appointment on 16.07.2007, which was forwarded to the competent authority on 19.07.2007, on which no action was taken by the respondents. He preferred S.B.Civil Writ Petition No.2269/2008, which was disposed of with the direction to the respondents to decide his application within three months. Vide order dated 21.05.2008, the application of the appellant for compassionate appointment was rejected. The appellant then challenged this order by preferring another writ petition before the Single Bench, which was dismissed on 17.09.2012. The review application filed by the appellant was also dismissed by the Single Bench vide order dated 30.01.2013. These orders are impugned in the instant appeal. 3. Learned counsel appearing for the appellant has submitted that the application of the appellant should have been considered under the Rajasthan (Recruitment of Dependents of Government Servant Dying while in Service) Rules, 1975 (hereinafter referred to as the “Rules of 1975”), which were in force at the time of the death of his mother and the authorities could not have rejected his application for compassionate appointment invoking Rule 5 of the Rajasthan Compassionate Appointment of Dependants of Deceased Government Servant Rules, 1996 (hereinafter referred to as “Rules of 1996”) as these Rules were not in force at the time of death of his mother. 4. Learned Government Counsel appearing for the respondents has submitted that the Rules of 1975 are not applicable since the same have been repealed by the Rules of 1996, and that as per the Rules of 1996, the appellant is not entitled for compassionate appointment. 5. We have heard learned counsel appearing for the parties and perused the record. 6. At the outset, we deem it appropriate to refer to Rule 5 of the Rules of 1996, which reads as under: “5. 5. We have heard learned counsel appearing for the parties and perused the record. 6. At the outset, we deem it appropriate to refer to Rule 5 of the Rules of 1996, which reads as under: “5. Appointment subject to certain conditions :- (1) When a Government servant dies while in service one of his/her dependents may be considered for appointment in Government service subject to the condition that employment under these rules shall not be admissible in cases where the spouse or at least one of the sons, unmarried daughters, adopted son/adopted unmarried daughter of the deceased Government servant is already employed on regular basis under the central/any State Government or Statutory Board, Organization/Corporation owned or controlled wholly or partially by the Central/any State Government at the time of death of the Government servant. Provided that this condition shall not apply where the widow seeks employment for herself. (2) Appointment under these rules shall be given on the condition that the person appointed on compassionated ground shall maintain properly the other family members who were dependent on the deceased Government servant and on furnishing an undertaking in writing that he/she shall maintain properly the other family members who were dependent on the deceased Government servant. If subsequently, at any time, it is proved that such dependent family members are being neglected or are not being not being maintained properly by him, the appointment may be terminated by the Appointing Authority after providing an opportunity to the compassionate appointee by way of issue of show cause notice asking him to explain why his services should not be terminated.” A bare reading of aforementioned Rules reveals that a relative of the deceased-employee shall not be entitled to compassionate appointment if any of the family members is already in employment of the Government. The objective of this Rule appears to be that as the avenues for appointment to Government jobs are limited, the compassionate appointment should be denied to the persons, whose family member is already in employment of the Government. The case of the appellant had been rightly rejected on the ground that his father was in employment with the Government, and hence under these Rules, he could have been appointed on compassionate ground. 7. The case of the appellant had been rightly rejected on the ground that his father was in employment with the Government, and hence under these Rules, he could have been appointed on compassionate ground. 7. There is no merit in the contention of the learned counsel appearing for the appellant that the case of the appellant should have been considered under the Rules of 1975, which were invoked at the time of death of his mother. The appellant had applied in the year 2007 when he was otherwise eligible to do so. The Rules of 1996 had come into effect, and thus, his application had to be considered in accordance with the Rules of 1996, which were prevalent at that time. Hence, the consideration of the appellant's application under the Rules of 1996 cannot in any manner be faulted. 8. Reference can be made to the judgment of the Supreme Court in the case of MGB Gramin Bank vs. Chakrawarti Singh [ (2014)13 SCC 583 ], wherein it was held that the application for compassionate appointment should be considered in accordance with Rules, which are applicable at the time of consideration. In that case, the employee expired on 19.04.2006 and the application for compassionate appointment was made on 12.05.2006. During the pendency of the application, a new Scheme dated 12.06.2006 had come into force with effect from 06.10.2006 wherein it was stipulated that instead of compassionate appointment, the pending applications have to be considered for grant of ex gratia payment to the family. The orders of the Single Bench and Division Bench of the High Court directing the appointment on compassionate grounds, were set aside. It has held as under: “15 The Court considered various aspects of service jurisprudence and came to the conclusion that as the appointment on compassionate ground may not be claimed as a matter of right nor an applicant becomes entitled automatically for appointment, rather it depends on various other circumstances i.e. eligibility and financial conditions of the family, etc., the application has to be considered in accordance with the scheme. In case the Scheme does not create any legal right, a candidate cannot claim that his case is to be considered as per the Scheme existing on the date the cause of action had arisen i.e. death of the incumbent on the post. In State Bank of India & Anr. In case the Scheme does not create any legal right, a candidate cannot claim that his case is to be considered as per the Scheme existing on the date the cause of action had arisen i.e. death of the incumbent on the post. In State Bank of India & Anr. (supra), this Court held that in such a situation, the case under the new Scheme has to be considered. 16. In view of the above position, the reasoning given by the learned Single Judge as well as by the Division Bench is not sustainable in the eyes of law. The appeal is allowed and the impugned judgments of the High Court are set aside.” 9. It is also well settled that the object of providing employment to any member of the family of the deceased-employee is to enable the family to tide over the immediate financial crisis, which engulfs the family at the time of death of the breadwinner. It is an exception to the general rule of appointment on the basis of merit and after issuance of advertisement for inviting applications from the general public in consonance with the mandate of Articles 14 & 16 of the Constitution of India. Compassionate appointment cannot be claimed as a matter of right and the family of the deceased employee is only entitled for consideration of its case under the Rules or the Scheme applicable thereto. We draw support from the judgment of the Hon'ble Supreme Court of India in the case of Umesh Kumar Nagpal vs State Of Haryana & Ors. [ 1994(4) SCC 138 ]. This view has been consistently followed by the Supreme Court in several cases including the case of MGB Gramin Bank vs. Chakrawarti Singh (supra). 10. In view of the above, we do not find any justifiable ground to interfere with the well reasoned orders of the Single Bench. Resultantly, the intra court appeal is dismissed.