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2016 DIGILAW 1882 (RAJ)

Sunil Arora v. State of Rajasthan

2016-12-22

ALOK SHARMA

body2016
JUDGMENT : Alok Sharma, J. 1. The petitioner seeks appointment as LDC under the Rajasthan Compassionate Appointment of Dependent of Deceased Government Servants Rules 1996 (hereinafter 'the Rules of 1996'). 2. The case set up is that Kailash Chandra Arora the petitioner's father expired while working on the post of Office Assistant in the Government Senior Secondary School Jawaja, Ajmer on 05.10.2009. On 16.11.2009, the petitioner earlier having passed the Higher Secondary Examination, as the son of the deceased Kailash Chandra Arora fancying himself as eligible for the post of LDC filed an application for appointment duly supported by affidavits of no objection from other family members of the deceased. The appointment was not yet forthcoming causing financial suffering to the family of the deceased Kailash Chandra Arora and defeating the salutary purpose of the Rules of 1996. Direction for appointment as LDC has been sought. 3. In defence, the respondents submitted that the petitioner did not have the requisite educational and technical qualification to be appointed LDC. It was submitted that in terms of the amendments in the Rajasthan Subordinate Offices Ministerial Staff Service Rules, 1999, The Rajasthan Secretariat Ministerial Service Rules, 1970 and in the Rajasthan Public Service Commission Ministerial Service and Subordinate Service Rules and Regulations 1999 effective 05.07.2010, the minimum qualification for appointment on the post of LDC was senior secondary from the Board of Secondary Education or its equivalent education qualification alongwith the requisite certificate in the prescribed computer course. The petitioner at the time of consideration of his application had not passed the senior secondary examination and on this count alone, was ineligible for the post of LDC. It was pointed out that the Rules of 1996 mandate that all appointments thereunder would be subject to requisite prescribed qualification for the post under the concerned service rules at the time of the appointment. And the petitioner's own case is that he had passed at the relevant time only the Higher secondary examination (Class XI) and not the Senior secondary Examination (Class XII) which was the minimum educational qualification for appointment on the post of LDC with the respondent-State. In the circumstances, the petitioner's application for appointment as LDC on compassionate ground was returned, and rightly so, submitted the Additional Government Counsel. 4. Heard. Considered. 5. In the circumstances, the petitioner's application for appointment as LDC on compassionate ground was returned, and rightly so, submitted the Additional Government Counsel. 4. Heard. Considered. 5. It is no doubt true that the petitioner had applied for the appointment under the Rules of 1996 on or about 16.11.2009. But it is equally true that all governing Rules for appointment of LDCs effective the amendment of 05.07.2010, provided that the minimum educational qualification for appointment on the post of LDC was senior secondary (Class XII) aside of proficiency in computers evidenced by passing the prescribed computer course. The petitioner admittedly did not have the requisite educational qualification of Senior Secondary pass at the time of the consideration of his application for appointment as LDC and could not be so appointed. 6. The only issue which remains for consideration is as to whether having applied for appointment of the post of LDC under the Rules of 1996 on 16.11.2009, the petitioner's candidature for such appointment could have been considered with reference to the amendments to the Rajasthan Subordinate Offices Ministerial Staff Service Rules, 1999, The Rajasthan Secretariat Ministerial Service Rules, 1970 and in the Rajasthan Public Service Commission Ministerial Service and Subordinate Service Rules and Regulations 1999 effective 05.07.2010. 7. Counsel for the petitioner has relied upon the judgment of this Court in the case of Narendra Singh Versus State of Rajasthan & Ors. (S.B.C.W.P. No. 8092/2011) decided on 10.09.2013 and on the case of Chakrawati Singh versus Marwar Ganganagar Bikaner Gramin Bank, 2009 SCC OnLine Raj. 3297, to contend that the State's delay in consideration of an application for appointment under the Rules of 1996 could not entail the right of the candidate concerned being lost by subsequent amendments in the recruitment rules and that such an applicant would have a vested right to be considered for appointment on the basis of the recruitment rules obtaining at the time the application for compassionate appointment was made. It was submitted that the minimum qualification of Senior Secondary and prescribed computer course effective the amendment of 05.07.2010 was not therefore relevant to the consideration of the petitioner's application filed on 16.11.2009. 8. Counsel for the respondent has however relied on the judgment of the Apex Court in the case of State Bank of India & Anr. It was submitted that the minimum qualification of Senior Secondary and prescribed computer course effective the amendment of 05.07.2010 was not therefore relevant to the consideration of the petitioner's application filed on 16.11.2009. 8. Counsel for the respondent has however relied on the judgment of the Apex Court in the case of State Bank of India & Anr. Versus Rajkumar, (2010) 11 SCC 661 to contend that as a compassionate appointment for the dependents of a deceased government servant is a concession and not a right, the employer can on its part modify or even wind up the scheme for such appointment at any time depending upon its policies, financial capacity and availability of posts. Consequently compassionate appointments can only be made, as per the scheme in force at the time the appointment is actually made and not as per the scheme existing when application for appointment was made. Consequently the petitioner's application under the Rules of 1996 albeit filed on 16.11.2009 for appointment as LDC could only be considered with reference to the recruitment rules as obtaining at the time its consideration. In the instant case the amendments to the Rajasthan Subordinate Offices Ministerial Staff Service Rules, 1999, The Rajasthan Secretariat Ministerial Service Rules, 1970 and in the Rajasthan Public Service Commission Ministerial and Service Subordinate Service Rules and Regulations 1999 come into force effective 05.07.2010 whereunder the minimum educational/technical qualification for appointment of LDC was set out as senior secondary pass with requisite computer course certification. The petitioner admittedly on his own say was not senior secondary pass (Class XII) but had passed only the higher secondary examination (Class XI) and thus did not have the requisite certification of the prescribed computer course as mandated under the relevant Rules. Resultantly nothing illegal or arbitrary can be attributed to the petitioner's non-appointment. 9. Rule 7 of the Rules of 1996 deals with qualification for the purpose of appointments to dependents of government servants dying while in service. Sub Rule (1) of Rule 7 states that the dependents should possess the qualification prescribed for the post under the concerned service rules at the time of the appointment. Sub Rule (1) of Rule 7 is not under challenge before this Court and it plain language has therefore to be determinative for the adjudication of the petitioner's case. Sub Rule (1) of Rule 7 states that the dependents should possess the qualification prescribed for the post under the concerned service rules at the time of the appointment. Sub Rule (1) of Rule 7 is not under challenge before this Court and it plain language has therefore to be determinative for the adjudication of the petitioner's case. It is true that the petitioner indeed applied for the appointment as LDC under the Rules of 1996 on 16.11.2009. But it cannot be anybody's case nor is it that the mere filing of the application ought to have entailed his automatic appointment. A process for compassionate appointments sought has been set out in Rule 10 of the Rules of 1996. 10. Mr. Sanjay Sharma, Addl. G.C. has rightly relied on the judgment of the Apex Court in the case of State Bank of India Versus Rajkumar (supra) where the character of compassionate appointments and the nature of the right of the applicants for such appointment have been considered at length by the Apex Court. It was held in paras 8, 12 and 13 of the aforesaid judgment 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 dependents 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 17-12-2016 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. 12. 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. 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. 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." 11. What follow from the aforesaid judgment is that a mere application for compassionate appointment confers no vested right on the applicant; that the employer is entitled to alter the eligibility for all appointments including compassionate appointment as per its policy; that all pending applications for compassionate appointments have to be considered on the basis of the prescribed eligibility as on the date of appointment. It would well be to recognize that the State cannot undertake to any applicant, seeking appointment compassionate or otherwise, that it would not, for the duration of applications pending under consideration, resort to its legislative power to modify the eligibility criterion for appointment to the posts the applicant has applied for. The pending applications for appointment cannot result in the eclipse the power to legislate/amend. The applicant thus has no vested right to appointment on the mere pendency of his application for appointment under the Rules of 1996, or otherwise. In the case of J.S. Yadav Versus State of Uttar Pradesh, & Anr., reported in : 2011 (6) Supreme Court Cases 570, the Apex Court has held that a right founded upon anticipated continuance of existing law is not a vested right. 12. In the case of J.S. Yadav Versus State of Uttar Pradesh, & Anr., reported in : 2011 (6) Supreme Court Cases 570, the Apex Court has held that a right founded upon anticipated continuance of existing law is not a vested right. 12. In the context of the resultant legal position obtaining, the judgments relied upon by counsel for the petitioner in cases of Narendra Singh Versus State of Rajasthan & Ors. and Chakrawati Singh versus Marwar Ganganagar Bikaner Gramin Bank, (2009) SCC Online Rajasthan 3297 (supra) holding to the contrary are of no avail. The petitioner seeking appointment as LDC under the Rules of 1996 did not have the requisite qualification for the said post as prescribed by the concerned recruitment rules on the day he was to be appointed. He has no vested right to be considered under the unamended recruitment rules. He was thus rightly denied appointment as he did not have the requisite minimum educational qualification for the post of LDC on the date of appointment. 13. Consequently, I find no force in the petition. It is accordingly dismissed.