Kamal Kishore Swami S/o Ghanshyam Kumar Swami v. State of Rajasthan Through Secretary
2017-08-08
DINESH MEHTA
body2017
DigiLaw.ai
JUDGMENT : Dinesh Mehta, J. By way of the present writ petition, Mr. Sushil Solanki, learned counsel for the petitioner has challenged the order dated 03.01.2017 whereby the petitioner's application seeking compassionate appointment under the Rajasthan Civil Services (Appointment of Dependent of Deceased Employee) Rules, 1996 (hereinafter referred to as "the Rules 1996") has been rejected. Facts relevant for the purpose of deciding the present writ petition are that one Smt. Rajshree Swami was appointed on the post of Junior Engineer (Diploma Holder) vide order dated 10.07.2015 and was working at Sub-Division Baneda, District Bhilwara. Smt. Rajshree Swami was expired on 29.09.2016 while she was working with the respondents. On her death the petitioner, being younger brother of the deceased employee submitted an application, seeking appointment on the compassionate ground, under the Rules of 1996. The said application came to be turned down by the Superintending Engineering-respondent No.2 indicating therein that applicant Kamal Kishore is brother of the deceased employee, who does not fall within the definition of 'dependent' given under Rule 2(c) of the Rules of 1996. It will not be out of place to reproduce the relevant provision contained in Clause-(c) of Rule 2 of the Rules of 1996 :- "2(c) dependent means a spouse son, unmarried or widowed daughter, adopted son/daughter legally adopted by the deceased government servant during his/her life time and who are wholly dependent on the deceased Government servant at the time of his death". 2. Mr. Sushil Solanki, learned counsel for the petitioner submitted that the petitioner being brother of the deceased employee was totally dependent on income of his sister and as such he falls within the ambit and scope of the expression 'dependent'. 3. He further argued that if the provision contained in Clause-(c) of Rule 2 of the Rules 1996 is interpreted in its true perspective, all family members, who are dependent on the deceased Government servant at the time of his/her death, are entitled for the compassionate appointment. In this regard, he invited the attention of this Court towards the phrase which begins after the word "and" and the same reads as under : "who are wholly dependent on the deceased Government servant at the time of his death".
In this regard, he invited the attention of this Court towards the phrase which begins after the word "and" and the same reads as under : "who are wholly dependent on the deceased Government servant at the time of his death". Bifurcating Clause-2(c), counsel for the petitioner contended that if an incumbent can satisfy that he was totally dependent upon the deceased Government servant, his case is required to be considered, under the rules, irrespective of the fact, whether he falls within the list of dependents given therein. 4. In support of his argument as aforesaid, counsel for the petitioner relied upon a judgment dated 07.05.2013 passed by this Court in SBCWP No.4868/2013 (Smt. Laxmi Devi vs. Ajmer Vidhyut Vitran Nigam Limited Ajmer & Ors.) and contended that since the applicant's mother, in that case has been held entitled for appointment under the Rules of 1996, petitioner being brother of the deceased employee is also entitled for such appointment. I have heard learned counsel for the petitioner and perused the material available on record. 5. The bifurcation of the definition contained in Clause-(c) of Rule 2 of the Rules of 1996 as proposed by the counsel for the petitioner is untenable and unsustainable in the eye of law. His argument that the expression "who are wholly dependent on the deceased Government servant at the time of his death" has to be read as a separate clause is unpalatable, if not preposterous. The aforesaid portion of Clause-(c) of Rule 2 cannot be read in isolation, while completely ignoring the previous part of the definition clause, which unequivocally restricts the meaning of the "dependent" by naming the relatives as "spouse, son, unmarried or widowed daughter, adopted son/daughter legally adopted by the deceased Government servant". 6. In wake of the restrictive definition given under Clause-(c) of Rule 2 of the Rules of 1996, this Court is unable to accept the argument advanced on behalf of the petitioner. The latter part which has been attempted to be read as separate clause by the petitioner is nothing but a separate additional condition, stringed with the first part of the definition. A purposive interpretation of the definition means the "dependent" would be one of those persons out of "spouse, son, unmarried or widowed daughter, adopted son/daughter etc. who is wholly dependent on the deceased Government servant.
A purposive interpretation of the definition means the "dependent" would be one of those persons out of "spouse, son, unmarried or widowed daughter, adopted son/daughter etc. who is wholly dependent on the deceased Government servant. In other words, the latter part of the definition has been incorporated only to clarify that the person mentioned in the first part shall not be treated to be "dependent" merely because they are relatives of the deceased employee; but they will have to establish that they were wholly dependent on the deceased Government servant. 7. In considered view of this Court, a person claiming appointment as a dependent of the deceased Government Employee has to satisfy twin conditions : (i) He has to be a relative mentioned in first part of the definition such as spouse, son, unmarried or widowed daughter, adopted son/daughter legally adopted by the deceased Government servant" and ; (ii) he has to be wholly dependent upon the deceased Government employee. 8. True it is, that the petitioner has claimed himself to be a person totally dependent upon his sister Smt. Rajshree Swami but as he does not fall in the ambit of the relatives mentioned in Clause-2(c) of the Rules of 1996, he cannot claim any right of appointment under the Rules of 1996. 9. Adverting to the judgment dated 07.05.2013 of this Court rendered in case of Smt. Laxmi Devi; a careful reading of the said judgment shows that the deceased Government Employee in that case namely Sushil Kumar had died while in service on 11.07.2012 and his mother Smt. Laxmi Devi claimed appointment on compassionate ground. This Court expanding the definition of "dependent" has held that the mother is also a dependent of the deceased Government employee and as such entitled for claiming appointment under Rules of 1996. 10. In considered opinion of this Court, a mother in given case can be treated as dependent in being class-I heir of the deceased son whereas the brother does not fall in the category of class 1 heir. As such the judgment dated 07.05.2013 rendered by this Court in case of Smt. Laxmi Devi is of no avail to the petitioner. According to Section 15 of Hindu Succession Act, 1956, property of a female Hindu dying intestate shall devolve according to the rules set out in Section 16, of the Act, 1956 upon the mother father.
As such the judgment dated 07.05.2013 rendered by this Court in case of Smt. Laxmi Devi is of no avail to the petitioner. According to Section 15 of Hindu Succession Act, 1956, property of a female Hindu dying intestate shall devolve according to the rules set out in Section 16, of the Act, 1956 upon the mother father. The petitioner being brother of Government employee thus can neither be treated to be her heir nor a dependent within the meaning of Rules of 1996. Though it is not a case of succession, but the principles of succession also oust the petitioner from claiming from estate of his sister. As such the definition as given cannot provide a leeway to expand its scope to include brother of a deceased employee in the ambit of dependent. 11. There is no substance and force in this writ petition, and the same is dismissed accordingly.