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2017 DIGILAW 2693 (RAJ)

Seema Tak v. State of Rajasthan

2017-12-05

PUSHPENDRA SINGH BHATI

body2017
JUDGMENT : Pushpendra Singh Bhati, J. 1. This writ petition under Article 226 of the Constitution of India has been preferred with the following reliefs:- "A. By an appropriate writ, order or direction, the order impugned dt. 15.04.2004 (Annex. 4) passed by the District Education Officer (Secondary), Rajsamand, and the order dt. 26.11.2015 passed by the learned Tribunal in Appeal No. 497/2004 may kindly be quashed and set aside. B. By an appropriate writ, order or directions, the respondents may kindly be directed to allow the petitioner on duty in compliance of the appointment order dt. 15.05.2001 with all consequential benefits. C. By an appropriate writ, order or directions, in alternative and without prejudice to the aforesaid relief, it is prayed that the matter may kindly be remanded to the learned Rajasthan Civil Services Appellate Tribunal for decision of the case on its merits. D. Any other appropriate writ, order or direction which this Hon'ble Court may deem just and proper in the facts and circumstances of the case may kindly be passed in favour of the petitioner. E. Writ petition filed by the petitioner may kindly be allowed with costs." The principal relief sought for in the present writ petition is the appointment of the petitioner on compassionate ground on account of death of her father, Late Shri Chotu Lal Tak, who died, while in service with the respondents-authorities as Senior Laboratory Assistant, in a road accident on 12.12.1993 alongwith his only son. 2. Since the petitioner was minor at the time of death of her father, she moved an application seeking compassionate appointment on 06.12.1997. The petitioner had attained the age of majority and was unmarried on the date of submitting the said application on 06.12.1997. However subsequently, the petitioner got married on 13.04.2000 and was given compassionate appointment on the post of Lower Division Clerk and was ordered to be posted at the Rajasthan Government Girls Secondary School, Khamnor District Rajsamand vide order dt. 15.05.2001. However, the petitioner sought some extension of time to join the duties, which was not responded by the respondents. 3. Learned counsel for the petitioner, Ms. Varsha Purohit appearing for Mr. Deelip Kawadia stated that without giving any opportunity of hearing or giving any notice or any prior information whatsoever, the respondents surprised the petitioner by issuing an order dt. However, the petitioner sought some extension of time to join the duties, which was not responded by the respondents. 3. Learned counsel for the petitioner, Ms. Varsha Purohit appearing for Mr. Deelip Kawadia stated that without giving any opportunity of hearing or giving any notice or any prior information whatsoever, the respondents surprised the petitioner by issuing an order dt. 15.04.2004, which is Annexure-4 to the writ petition, cancelling the order of compassionate appointment of the petitioner. 4. Learned counsel for the petitioner has shown to this Court the aforementioned order dt. 15.04.2004 (Annexure-4) to submit that the cancellation of the compassionate appointment was on account of the petitioner getting married, which action of cancellation was contrary to the Circular dt. 18.12.2001 issued by the Department of Personnel, Government of Rajasthan. Except the said reason, no other reason has been given for cancellation of the order of compassionate appointment of the petitioner. 5. Learned counsel for the petitioner has argued that the petitioner was unmarried at the time of death of her father i.e. 12.12.1993 as well as on date of moving the application claiming compassionate appointment on 06.12.1997. 6. Learned counsel for the petitioner has further argued that the subsequent development of marriage of the petitioner will not have retrospective effect and the entitlement of the petitioner, which accrued to her on 12.12.1993 or may be on 06.12.1997 would not be hampered by her status got changed as that of a married daughter. As per learned counsel for the petitioner, the subsequent event of marriage shall not have any impact upon the rights of the petitioner to have been appointed on compassionate ground on account of the death of her father in a road accident on 12.12.1993 alongwith his only son. 7. Learned counsel for the petitioner further submitted that the petitioner immediately approached the learned Rajasthan Civil Services Appellate Tribunal, Jaipur by way of filing Appeal No. 497/2004. But the said appeal remained pending before the learned Tribunal and was decided only on 26.11.2015, and that too, on the ground that the learned Tribunal was not having jurisdiction. 8. Learned counsel for the petitioner states that it is a travesty of justice that the poor lady was knocking the doors of justice for so long, but still the ground of denial at this stage is being raised that she had in fact caused the delay. 9. 8. Learned counsel for the petitioner states that it is a travesty of justice that the poor lady was knocking the doors of justice for so long, but still the ground of denial at this stage is being raised that she had in fact caused the delay. 9. Learned counsel for the petitioner has relied upon the precedent law laid down by this Hon'ble Court in Smt. Sonu Devi v. State of Rajasthan & Ors. (S.B. Civil Writ Petition No. 9022/2014 decided on 10.02.2017), allowing the said writ petition filed by the then petitioner. The relevant portion of the said judgment reads as under:- "8. The question still remains that whether a unmarried daughter who subsequently gets married during the intervening period when the appointment has not been actually given to her can be treated as having become ineligible. 7. The question of eligibility of an individual has been examined time and again by this Court as well as by the Apex Court relating to the day on which, the same is required to be assessed. In Ashok Kumar's case, the Supreme Court has held that the eligibility has to be seen on the day when the last date of application in any selections which are to be conducted by the authorities. Similar view has been taken by the Full Bench of this Court in the case of RPSC v. Abhijeet Singh Yadav, 2011 WLC (UC) 295 as well as by the Supreme Court in the case of Alka Ojha v. RPSC, 2011 (9) SCC 438 . However, so far as compassionate appointment is concerned, there is no advertisement required to be issued and, therefore, the date of eligibility will have to be assessed, as to what will be treated as the date for assessment for the same. Rule 5 of the Rules of 1996 clearly provides that the position shall be seen on the day when the Government Servant has expired. 8. This Court finds merit in the submission made by the counsel for the petitioner that the eligibility of the dependants and their qualifications would be assessed on the day when they moved an application. The purpose of the Rules of 1996 is to provide assistance to the family in harness immediately and on account of the delay in giving appointment for years together, the dependants cannot be deprived of their rightful claim. 9. The purpose of the Rules of 1996 is to provide assistance to the family in harness immediately and on account of the delay in giving appointment for years together, the dependants cannot be deprived of their rightful claim. 9. Accordingly, it is held that the petitioner who had applied as an unmarried daughter would be entitled to be appointed under the Rules 1996. If the submission of the counsel for the respondent is to be accepted then it would be a case where a dependant unmarried daughter even after appointment may not be allowed to get married, as the situation of a woman and her status may change, she cannot be deprived of her rightful claim under the Rules of 1996. The judgment passed by the Division Bench in the case of Seema (supra) is distinguishable as the same only relates to the case where a claimant was a married daughter at the time of death of the deceased Government Servant and she challenged Rule 2 (c) of the Rules of 1996. The Court has not accepted the said petition and has refused to even examined the validity of the Rule 2 (c) of the Rules of 1996. The same would, therefore, not applied to the facts and circumstances of the present case. The judgment passed by the Apex Court in the case of Canara Bank (Supra) gives a guideline for finding as to what should be the date. This Court respectfully agrees to the view and taking into consideration all the aspects, allow the writ petition. 10. Accordingly, the writ petition is allowed. The order dt. 03.06.2013 passed by is quashed and set aside. The petitioner is directed to be considered for compassionate appointment under the Rules of 1996 as per her application moved on 08.02.2013 with all consequential benefits. The said exercise may be conducted within a period of three months from today, failing which, the petitioner shall be free to initiate contempt proceedings without any further notice." 10. Learned counsel for the petitioner has thus, harped upon the issue that the eligibility for compassionate appointment has to be assessed at the time of death of the deceased employee. 11. Mr. Learned counsel for the petitioner has thus, harped upon the issue that the eligibility for compassionate appointment has to be assessed at the time of death of the deceased employee. 11. Mr. B.L. Bhati, learned Government Counsel has however opposed the submissions made on behalf of the petitioner on account of inordinate delay and has stated that the compassionate appointment is meant to provide immediate succour to the bereaved family, on account of the death of the bread-earner of the family, so as to enable the family to recover from the harness, rather than giving appointment at such belated stage. 12. Learned counsel for the respondents has also stated that the petitioner had in fact not joined the service in pursuance of the aforementioned order of compassionate appointment, and hence, the order cancelling the compassionate appointment was good in the eye of law. 13. Learned counsel for the petitioner has further argued that the petitioner got married before getting the appointment on compassionate ground, and therefore, was disentitled, as per the Rajasthan Compassionate Appointment of Dependants of Deceased government Servants Rules, 1996, to be given such appointment. Learned counsel for the respondents also argued that at the time of death of her father on 12.12.1993, the petitioner was a minor. 14. After hearing learned counsel for the parties as well as perusing the record of the case, alongwith the precedent law cited by learned counsel for the petitioner, this Court is of the opinion that the employee of the respondents i.e. father of the present petitioner, who died in a road accident alongwith his only son only in the year 1993, fully entitled his daughter, the present petitioner, who was unmarried at that time, for compassionate appointment. 15. The time barrier of the Rules of 1996 in providing compassionate appointment shall also not be attracted in the present case, as prior to the year 1996, earlier the Rules, namely, the Rajasthan Recruitment of Dependants of Government Servants Dying While in Service Rules, 1975 did not provide for any such time barrier, and therefore, at the time of death of the father of the petitioner, there was no barrier of any time limit prescribed in the prevailing Rules. The respondents themselves have taken a conscious decision of giving compassionate appointment to the petitioner. The only ground for cancellation of that compassionate appointment is that the petitioner got married before such appointment. The respondents themselves have taken a conscious decision of giving compassionate appointment to the petitioner. The only ground for cancellation of that compassionate appointment is that the petitioner got married before such appointment. 16. It is an admitted position that the death of father of the petitioner occurred on 12.12.1993 and the application seeking compassionate appointment of the petitioner was moved on 06.12.1997, whereas the appointment on compassionate ground was given to the petitioner belatedly on 15.05.2001. Thus the delay in giving the compassionate appointment was on the part of the respondents. Had the appointment been given on 06.12.1997, then the petitioner definitely was unmarried, as she got married only on 13.04.2000. 17. The disqualification of the petitioner for securing compassionate appointment mentioned in the cancellation order, even if believed, though this Hon'ble Court has laid down the precedent law that the married daughter, if dependant and if the only successor of the deceased employee, can have the chance of compassionate appointment in certain circumstances, but for a moment, even assuming that such disqualification was there, then also such disqualification occurred only after she got married; whereas, the petitioner was entitled to be given compassionate appointment on 06.12.1997, if not on 12.12.1993. 18. This Court is thus, of the opinion that the argument raised on behalf of the respondents regarding the delay in challenging the cancellation order does not hold any weight, as the petitioner challenged the said cancellation order in the year 2004 itself before the learned Tribunal, and the learned Tribunal in fact, decided the matter in the year 2015, and that too, by passing an order only on account of lack of jurisdiction. 19. The precedent law cited by learned counsel for the petitioner also fortifies the case of the petitioner, as in the said precedent law, this Hon'ble Court has laid down that the time of entitlement, would be the death of the employee, and if at that time, the daughter was unmarried, then any future date of marriage, which was definitely a prospective development of the family, cannot be a ground for denial of compassionate appointment to the daughter. 20. This Court also finds that the argument raised on behalf of the respondents regarding the petitioner not joining the service in pursuance of the appointment order also does not hold good, as this was not the ground for passing of the order dt. 20. This Court also finds that the argument raised on behalf of the respondents regarding the petitioner not joining the service in pursuance of the appointment order also does not hold good, as this was not the ground for passing of the order dt. 15.04.2004 (Annexure-4) cancelling the compassionate appointment of the petitioner. The only ground taken in the aforesaid order dt. 15.04.2004 was the marriage of the petitioner, which admittedly has happened many years subsequent to submission of her application on 06.12.1997 and the death of her father on 12.12.1993, who was the deceased employee. 21. The petitioner, by all means, is entitled for compassionate appointment and the cancellation order of such compassionate appointment passed by the respondents is grossly illegal and unjust towards the petitioner. The compassionate appointment in this case was made by virtue of the statutory rules and it is binding upon the respondents to have complied with the requirements of such statutory rules in force. 22. Many of the judgments of the Hon'ble Apex Court as well as this Court have diluted the right of compassionate appointment, where there is scheme or policy for the compassionate appointment. However, wherever there is a statutory requirement for providing compassionate appointment, the respondents cannot shirk away from their statutory duty to provide such appointment to the family member of the deceased employee, that too/in the circumstances, where the father of the petitioner died in a road accident alongwith his only son, which deserves lot of sympathy, but without going into the sympathy factor, on legal ground itself, the respondents were required to give at least an opportunity of hearing to the daughter of the deceased employee before cancelling the order of her compassionate appointment. 23. It is an admitted position that the respondents did not give a single notice or any opportunity of hearing or any right to represent her case whatsoever before cancelling such appointment, which was the statutory right of the petitioner as per the statutory rules providing for compassionate appointment. Thus, the argument made by learned counsel for the respondents cannot be sustained in the given circumstances, when the compassionate appointment is a statutory right, which has rightly been provided to the petitioner by the State on 15.05.2001. Thus, the argument made by learned counsel for the respondents cannot be sustained in the given circumstances, when the compassionate appointment is a statutory right, which has rightly been provided to the petitioner by the State on 15.05.2001. In light of the aforesaid discussion as well as the precedent law cited by learned counsel for the petitioner, the present writ petition is allowed and the impugned order dt. 15.04.2004 (Annexure-4) cancelling the compassionate appointment of the petitioner is quashed and set aside alongwith the order dt. 26.11.2015 passed by the learned Tribunal in Appeal No. 497/2004. The respondents shall allow the petitioner to join the service on the post of Lower Division Clerk, in pursuance of the order dt. 15.05.2001. It is clarified that the post shall remain that of the Lower Division Clerk, in respect of which the aforesaid order of compassionate appointment was issued in favour of the petitioner. However, the place of posting of the petitioner may be changed, as per the administrative exigency, to be decided by the respondents. The compliance of this order shall be made by the respondents within a period of three months from the date of receipt of certified copy of this order.