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2017 DIGILAW 1476 (RAJ)

Gopal Singh S/o Shri Bhanwar Singh v. Ajmer, Vidhyut Viteran Nigam Limited

2017-07-05

DINESH MEHTA

body2017
JUDGMENT. 1. The petitioner has approached this Court invoking its writ jurisdiction under Article 226 of the Constitution, impugning the order dated 05.10.2015, rejecting his application for grant of compassionate appointment. The reasons ascribed for rejection of petitioner’s claim are that petitioner has omitted name of his elder brother, Jaswant Singh in the list of the family members of the deceased employee Bhanwar Singh, and that the said elder brother Jaswant Singh too has filed an application dated 17.10.2014, seeking compassionate appointment and his share in the amount payable to the family, on account of death of the deceased employee, Bhanwar Singh. 2. Facts in brief, relevant to the questions involved and propelling the petitioner to prefer the present petition for writ are that Bhanwar Singh, petitioner’s father was working on the post of SSC-III in the Office of Assistant Engineer (O&M), Ajmer Vidhyut Vitran Nigam Ltd., District Nagaur who passed away on 15.10.2013, while in harness. 3. No sooner did the employee expired, than the petitioner submitted an application dated 01.11.2013, seeking employment on compassionate grounds, under the prevailing Rajasthan Compassionate Appointments of Dependents of Deceased Government Servant Rules, 1996 (for short, “the Rules 1996”). It is undisputed that alongwith the application in requisite proforma, the petitioner had submitted all necessary documents, including affidavit of his mother, two sisters and one brother, except the affidavit of his eldest brother – Jaswant Singh. 4. It is also a matter of record that name of Jaswant Singh was not mentioned in column No.10 of the application, albeit the same was mentioned in column No.5 (page 15) thereof. Smt. Santosh Kanwar, petitioner’s mother also did not divulge the name of said Jaswant Singh in her affidavit dated 07.01.2014, filed alongwith the said application. The aforesaid application was supported by petitioner’s affidavit, giving unqualified undertaking to maintain the dependents of the deceased employee. 5. After submitting the application seeking compassionate appointment, petitioner has been pursuing his cause by filing representations, which were paid no heed. Respondent’s apathy prompted the petitioner to file a writ petition, being SBCWP No.6653/2015, which was however disposed of by this Court on 02.07.2015, with a direction to the petitioner to submit a representation to the Appropriate Authority, with a simultaneous direction to the Respondent AVVNL to pass a lawful order on the petitioner’s application. Respondent’s apathy prompted the petitioner to file a writ petition, being SBCWP No.6653/2015, which was however disposed of by this Court on 02.07.2015, with a direction to the petitioner to submit a representation to the Appropriate Authority, with a simultaneous direction to the Respondent AVVNL to pass a lawful order on the petitioner’s application. It is in these circumstances, the Secretary, Administration of the Respondent Nigam came to pass the impugned order dated 05.10.2015, rejecting petitioner’s application for grant of compassionate appointment. 6. Mr. Vinay Arora, learned counsel for the petitioner assailing the order dated 05.10.2015, submitted that the Respondent Nigam has rejected the petitioner’s entitlement on absolutely extraneous and irrelevant counts. He candidly conceded that true it is; that in Column No.10 of the form giving out the list of family members, name of his elder brother Jaswant Singh was not mentioned, but the same was done under the impression that petitioner was required to give list of the dependents of the deceased employee; since the elder brother Jaswant Singh had not been living with the family and separated even during life time of his father, he did not mention his (brother’s) name. He added that the same was however mentioned in other part (Column No.5) of the form and subsequent affidavit of his mother, filed on 13.09.2014. 7. Mr. Arora, navigating the Court through the Rules of 1996, contended that as per Rule 10 of the Rules, the Head of the Department is required to grant employment, keeping in view the overall welfare of the entire family, particularly the minor members. 8. On the backdrop of these facts, Mr. Arora contended that the finding recorded by the Respondent Nigam is per-se perverse, having no nexus with the object of the Rules or the provisions thereof. 9. In relation to the application dated 17.10.2014 filed by the elder brother Jaswant Singh, learned counsel for the petitioner submitted that suffice it to point out that Jaswant Singh’s application, seeking compassionate appointment filed on 17.10.2014, was way beyond the prescribed period of ninety days, as contained under Rule 10 (3) of the Rules of 1996 and as such could not be treated to be a valid application. 10. 10. Counsel for the petitioner further contended that in the present factual background, when all the family members, including the mother, except Jaswant Singh have given their consent for providing appointment to the petitioner, it was incumbent upon the competent officer to have applied his mind objectively, while keeping in view the overall welfare of the family. 11. Per contra Mr. Mukul Singhvi, learned counsel for the Respondents submitted that the conduct of the petitioner disentitles him from seeking any indulgence much less equitable relief, inasmuch as he has not even mentioned the name of his eldest brother Jaswant Singh in the affidavit submitted alongwith the application for according compassionate appointment. 12. Learned counsel for the Respondents added that there were two rival claimants, seeking employment on compassionate grounds on the death of the employee, Bhanwar Singh and as such the Respondents were not in a position to give employment to one of them. 13. Heard learned counsel for the parties, perused the material available on record and considered the law on the subject. For the sake of deciding the present writ petition, it would be appropriate to reproduce Rule 10 of Rules of 1996, which is done, hereinfra :- “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 dependents 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.” (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 Part-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 in a particular case, it may relax the provisions of this subrule to such extent and subject to such conditions as it may consider necessary for dealing with the case in a just and equitable manner. (4) … … … (5) … … … (6) … … … (7) … … …” 14. Even a simple look at Rule 10 of Rules of 1996, leaves no room for ambiguity that in the event when more than one dependents apply for compassionate appointment, the Head of the Department is required to give employment to one of them, keeping in mind the overall welfare of the family. 15. A simple reading of the order under challenge, passed by the Dy. Secretary (Administration) unravels that there was complete non-application of mind, while deciding petitioner’s application and substantial rights. Though otherwise expected, yet this Court had cautioned him to pass a lawful order while disposing of petitioner’s earlier writ petition vide order dated 2.7.2015. But for the dismay of the petitioner and his family, the Respondent Nigam has rejected their substantial right of seeking appointment in an absolutely casual manner, on flimsy grounds, contained in a cursory order. 16. The reasons given under the order impugned dated 5.10.2015 namely the petitioner has not given name of his eldest brother in the list of family members, may be correct but has no substantial bearing or effect on the petitioner’s eligibility and entitlement. Though on facts as stated above, it is apparent that the petitioner had in his application form itself, in column No.5, written name of his eldest brother, yet, the mere factum of not disclosing name of his brother, cannot disentitle him from seeking appointment on compassionate ground. Though on facts as stated above, it is apparent that the petitioner had in his application form itself, in column No.5, written name of his eldest brother, yet, the mere factum of not disclosing name of his brother, cannot disentitle him from seeking appointment on compassionate ground. Firstly such finding itself is unsustainable and even if for a moment, it is assumed that petitioner has not deliberately disclosed his brother’s name, one can understand the anxiety and concern of the family members-dependents of the deceased employee whose eldest member of the family had parted away, even during life time of their father. Nonetheless, as per the rules, even said Jaswant Singh could also independently stake his claim for appointment on compassionate grounds, which he has done later on. 17. On the issue of non-disclosure and concealment of material information, this Court is reminded of the judgment of Supreme Court in Avtar Singh Vs. Union of India & Ors., reported in (2016) 8 SCC 471 , in which Hon’ble Supreme Court has held as under :- “34. No doubt about it that verification of character and antecedents is one of the important criteria to assess suitability and it is open to employer to adjudge antecedents of the incumbent, but ultimate action should be based upon objective criteria on due consideration of all relevant aspects. 35. Suppression of 'material' information presupposes that what is suppressed that 'matters' not every technical or trivial matter. The employer has to act on due consideration of rules/instructions if any in exercise of powers in order to cancel candidature or for terminating the services of employee. Though a person who has suppressed the material information cannot claim unfettered right for appointment or continuity in service but he has a right not to be dealt with arbitrarily and exercise of power has to be in reasonable manner with objectivity having due regard to facts of cases. 36. What yardstick is to be applied has to depend upon the nature of post, higher post would involve more rigorous criteria for all services, not only to uniformed service. For lower posts which are not sensitive, nature of duties, impact of suppression on suitability has to be considered by concerned authorities considering post/nature of duties/services and power has to be exercised on due consideration of various aspects. 37. For lower posts which are not sensitive, nature of duties, impact of suppression on suitability has to be considered by concerned authorities considering post/nature of duties/services and power has to be exercised on due consideration of various aspects. 37. The 'McCarthyism' is antithesis to constitutional goal, chance of reformation has to be afforded to young offenders in suitable cases, interplay of reformative theory cannot be ruled out in toto nor can be generally applied but is one of the factors to be taken into consideration while exercising the power for cancelling candidature or discharging an employee from service.” 18. The case at hand stands at much better footing; as there is no concealment, as noticed above, it is only a case of nonmentioning of elder brother’s name in a particular column, which too has no material bearing, touching upon petitioner’s eligibility or conduct. Had the name of Jaswant Singh been mentioned, it would have made no difference upon the petitioner’s candidature/ entitlement. In the aforesaid judgment, Supreme Court has directed to take a considerate and lenient view, even in the matter involving criminal offence. Tested on these principles, this Court is of the view that petitioner’s non-disclosure is insignificant and inconsequential while deciding his application, seeking compassionate appointment. 19. The candidature of the petitioner should be decided in terms of the provisions of rules and in accordance with law. A substantial right of a citizen cannot be turned down on the reasons which are not germane to his entitlement and for which there is no provision under the Rules. As such the fulcrum of the impugned order dated 05.10.2015 itself is fragile, making it difficult to withstand the test of reasonableness, the order under challenge is clearly arbitrary falling foul to Article 14 of the Constitution of India. 20. As far as the other application filed by the petitioner’s elder brother – Jaswant Singh is concerned, the same having been filed on 17.10.2014, was prima facie beyond the period prescribed under sub-rule (3) of Rule 10 of the Rules of 1996. However, it would not be appropriate to pronounce or comment upon his application behind his back, as he is not a party before this Court. Even if it is assumed that his application was required to be considered, then in that case also the competent officer was required to adjudge the comparative competence of both the applicants. However, it would not be appropriate to pronounce or comment upon his application behind his back, as he is not a party before this Court. Even if it is assumed that his application was required to be considered, then in that case also the competent officer was required to adjudge the comparative competence of both the applicants. Since the petitioner’s application was supported by ‘No Objection’ of all the dependents of the deceased employee, including his wife, except the rival claimant – Jaswant Singh, who had separated from the family, during the life time of the deceased employee, the respondents were required to decide the petitioner’s application objectively and in consonance with the spirit of the Rules of 1996. 21. The Rules of 1996 are ameliorative in nature and have been promulgated with a view to give healing touch to the bereaved dependents of a government employee, who has departed in harness. By the action of the respondents, the whole import and purport of the Rules of 1996 has been frustrated. The head of the department or the competent authority instead of deciding the comparative hardship of the rival claimants, has rejected the petitioner’s candidature on the grounds, which are irrelevant rather impermissible under the Rules of 1996. 22. For the reasons above, the impugned order dated 05.10.2015 is quashed. As a natural corollary of the quashment of the order, the petitioner becomes entitled to an appropriate writ, directing the Respondents to provide suitable appointment to him, but there is a snag viz. it has not come on record as to whether the application dated 17.10.2014 of Jaswant Singh has been decided by the Respondent or not. If the application of Jaswant Singh is still pending, it would be appropriate to first decide his candidature also. Though the Rules of 1996 do not envisage providing an opportunity of hearing to the applicant , but in the facts of the present case, since Jaswant Singh is not a party in the instant writ petition, providing opportunity of hearing to him would be in tune with the rules of equity, justice and fair-play. 21. If the application of Jaswant Singh seeking appointment under the Rules of 1996 is still pending, the competent officer would hear and afford an opportunity of hearing to him. 21. If the application of Jaswant Singh seeking appointment under the Rules of 1996 is still pending, the competent officer would hear and afford an opportunity of hearing to him. Since the rights of the dependents are lying in lurch for a considerable period, it would be expedient to direct the petitioner and Jaswant Singh, both to appear before the Dy. Secretary (Administration) of Respondent Nigam at his Office in Ajmer on 01.08.2017 at 11 a.m., who shall hear both of them individually or collectively and pass a fresh order, within a period of seven days thereafter. Whosoever is found eligible and suitable, keeping into account his education and qualification and other criteria in light of the law laid down above, shall be given order of appointment. The needful be done expeditiously but not later than 31st October, 2017. 22. As such, if the application of Jaswant Singh seeking appointment is still pending with the Respondents, they will issue a notice, calling upon him to appear on 01.08.2017 so as to ensure proper adjudication of the rival rights. 23. Writ petition stands allowed, however without any order as to costs.