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2018 DIGILAW 172 (RAJ)

Rekha Joshi v. State of Rajasthan

2018-01-15

PUSHPENDRA SINGH BHATI

body2018
JUDGMENT : PUSHPENDRA SINGH BHATI, J. This writ petition under Article 226 of the Constitution of India has been preferred with the following prayers : “A. By an appropriate writ, order or direction, the order dated 12.08.2016 (Annex-15) and any other order denying the appointment to the petitioner on compassionate grounds may kindly be quashed and set aside. B. By an appropriate writ, order or direction, the respondents may kindly be directed to consider the divorce daughter within the definition of dependent and hence falling under the Rule 2(C) of Rules of 1996 and give compassionate appointment to the petitioner in accordance with the Rules of 1996 with all consequential benefits. C. By an appropriate writ, order or direction, the respondents may kindly be directed to afford appointment to the petitioner on compassionate grounds under the Rules of 1996 and consider appointed since her initial application in the year 1998 with all consequential benefits. D. By an appropriate writ, order or direction, the respondents may kindly be directed to appoint the petitioner on the post of Teacher Grade III considering her educational qualification acquired till date in lieu of service rendered by her father as PTI Teacher Grade III with all consequential benefits. E. 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. F. Writ petition filed by the petitioner may kindly be allowed with costs.” 2. The petitioner's father was working with the respondents on the post of PTI Grade III at Joyla, Tehsil Shivganj, District Sirohi. The petitioner's father died while in service on 26.09.1995. Therefore, the present petitioner, daughter of the deceased government employee, applied for the compassionate appointment in the year 1998. 3. The fact is on record that while the death of father of the petitioner had occurred on 26.09.1995, the petitioner got married on 21.11.1996, and then entered into separation agreement dated 01.02.1998. Subsequently, a decree of divorce was granted to the petitioner by the competent court on 30.05.2003 vide Annexure-11 of the writ petition. 4. The petitioner, meanwhile, acquired the qualifications of Senior Secondary, Graduation, Post Graduation i.e. M.A. and B.Ed. and is also having the RS-CIT Certificate. Subsequently, a decree of divorce was granted to the petitioner by the competent court on 30.05.2003 vide Annexure-11 of the writ petition. 4. The petitioner, meanwhile, acquired the qualifications of Senior Secondary, Graduation, Post Graduation i.e. M.A. and B.Ed. and is also having the RS-CIT Certificate. The petitioner continued to communicate with the respondents in all the years and some of the communications of the years 1998 and 1999 are on record as Annexure-5 to the writ petition. 5. The respondents, meanwhile, vide communication dated 22.07.2002 decided to revisit the pending cases of compassionate appointment with the intention to provide wider relief to the families of the deceased government employees. 6. The District Education Officer, Sirohi thereafter, informed the mother of the petitioner vide letter dated 29.07.2002 to make necessary application for compassionate appointment. The authorities were informed that the application of the petitioner was pending with the respondents. The divorce decree granted to the petitioner on 30.05.2003 by the competent court was also submitted to the respondents. The representations were not finally decided by the respondents, and finally, the respondents have sought clarification vide letter dated 27.01.2016. However, the petitioner has been disqualified for grant of compassionate appointment on account of her being a divorced daughter, as under Rule 2(c) of the Rajasthan Compassionate Appointment of Dependents of Deceased Government Servants Rules, 1996 (in short, ‘the Rules of 1996’), the divorced daughter did not fall within the definition of “dependent”. The letter dated 12.08.2016 with such intention was communicated to the petitioner, which is on record as Annexure-16 of the writ petition. 7. Learned counsel for the petitioner has argued that the petitioner has a statutory right of compassionate appointment and being qualified, she ought to be given such appointment on the post of LDC or any Class III post. 8. Learned counsel for the petitioner has relied upon the judgment rendered by this Hon'ble Court in Ms. Indira Bishnoi v. The State of Rajasthan (S.B. Civil Writ Petition No. 14502/2015 decided on 03.08.2016), wherein this Hon'ble Court has read down Rule 2(c) of the Rules of 1996 to the extent that the divorced daughter would fall within the definition of “dependent” and was entitled to be given compassionate appointment. 9. Relevant paras 8 to 13 of the judgment in Ms. Indira Bishnoi v. The State of Rajasthan (supra) read as under :- “8. 9. Relevant paras 8 to 13 of the judgment in Ms. Indira Bishnoi v. The State of Rajasthan (supra) read as under :- “8. The Legislature in its wisdom recognised the fact that a widow daughter would have no means of support, if she was not maintained by her husband's family and would be back in her parental home. Whereas a divorced daughter, on the other hand, is on a worse footing than a widow daughter. A divorced daughter would have no source of income to maintain herself and would then on returning to her parental home be on the same footing as of unmarried daughter. If the law permits a widow daughter to be considered as a dependant of the deceased and entitled to seek compassionate appointment, there seems to be no justification in disallowing a divorced daughter who is dependant upon the deceased Government Servant for being considered for compassionate appointment. 9. Appointment on compassionate ground is offered in order to give an opportunity to the family members to come out of their financial constraints and if a daughter who has been divorced, returns to her family to her parental home, she cannot be denied the opportunity to seek compassionate appointment if she complies with all the other conditions. Law is evolving and when equal status has been given to daughter with sons there is no rational in treating a daughter differently only because of the term “Divorced”. The term ‘unmarried’ ‘widow’ ‘divorced’ are only a nomenclature added to the term daughter and if such a daughter is ready to work and support the family who is facing financial distress on account of death of the government servant, there can be no valid ground for not including her as a dependant. 10. In Pinki v. State of Rajasthan (supra), this Court came to hold that a widow daughter-in-law too would fall into the category of a person who would be called dependant upon the deceased family members and entitled to seek appointment. 11. In the instant case, it is to be noted that the petitioner is also a nominee of the deceased government employee, thus deserves to be considered for appointment. 12. 11. In the instant case, it is to be noted that the petitioner is also a nominee of the deceased government employee, thus deserves to be considered for appointment. 12. The objection regarding the pendency of the criminal cases against the petitioner is not sustainable since she has been acquitted in one and in the other has been given the benefit of Section 12 of the Probation of Offenders Act, 1958 by a judgment dated 8.4.2015, therefore, there is no impediment in granting her appointment on compassionate grounds. 13. In view of the above, the writ petition is allowed and the respondents are directed to offer appointment to the petitioner if all other conditions are fulfilled within a period of one month from date of receipt of certified copy of this order.” 10. Learned counsel for the petitioner further stated that the Division Bench of this Hon'ble Court has upheld the aforesaid judgment vide D.B. Special Appeal Writ No. 166/2017 (State of Rajasthan v. Ms. Indira Bishnoi decided on 24.03.2017). 11. Learned counsel for the respondents however, opposed the submissions made on behalf of the petitioner on account of the fact that the petitioner was a divorced daughter of the deceased government employee and did not fall within the ambit of Rule 2(c) of the Rules of 1996. 12. Learned counsel for the respondents also stated that the petitioner cannot be considered as a dependent, after a passage of such a long time when the death of her father had occurred on 26.09.1995. 13. Learned counsel for the respondents further stated that during consideration, the decree of divorce was not there, and therefore, the petitioner was rightly denied the right of compassionate appointment. 14. In rejoinder, learned counsel for the petitioner reiterated that at the time of death of father of the petitioner, she was unmarried and by virtue of that initial date also, she could be considered as a dependent. 15. Learned counsel for the petitioner also stated that if the consideration has to be made prospectively, then also, the petitioner has a valid divorce decree dated 30.05.2003. 16. Learned counsel for the petitioner further stated that the Hon'ble Apex Court, in Canara Bank v. M. Mahesh Kumar, reported in (2015) 7 SCC 412 , has granted the compassionate appointment after a very long period, laying down the law that such rights, if proved, are not stale. 17. 16. Learned counsel for the petitioner further stated that the Hon'ble Apex Court, in Canara Bank v. M. Mahesh Kumar, reported in (2015) 7 SCC 412 , has granted the compassionate appointment after a very long period, laying down the law that such rights, if proved, are not stale. 17. Learned counsel for the petitioner has further relied upon the judgment rendered by this Hon'ble Court in Smt. Sonu Devi v. State of Rajasthan (S.B. Civil Writ Petition No. 9022/2014 decided on 10.02.2017), relevant paras 8 to 10 read as under :- “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. 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 dated 03.06.2013 passed by is quashed and set-aside. 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 dated 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.” 18. After hearing learned counsel for the parties and perusing the record of the case alongwith the precedent law cited at the Bar, this Court is of the opinion that the petitioner was unmarried at the time of death of her father on 26.09.1995. The petitioner however, was subsequently got married on 21.11.1996 and has been living separately from her husband since 01.02.1998, resulting into a divorce decree passed by the competent court on 30.05.2003. Thus, admittedly, the petitioner was entitled for compassionate appointment at the time of death of her father, and even today also, she is entitled for being considered for compassionate appointment in place of her father. 19. The argument of delay raised by learned counsel for the respondents does not hold any strength, as the consideration was being made by the respondents themselves by passing consecutive orders from 2002 to 2016. 20. The petitioner being within the zone of consideration, has a statutory right for being appointed on compassionate grounds under the Rules of 1996 and vide the precedent law noted above, the petitioner being an unmarried daughter of the deceased government employee at the time of his death and divorced daughter today, falls within the purview of the definition contained in Rules 2(c) of the Rules of 1996 and is a valid dependent of the deceased employee. The precedent law has not left any doubt that the divorced daughter would stand on the same pedestal as an unmarried daughter being dependent upon the same family. However, the facts of this case are step better, as the petitioner was unmarried at the time of death of her father, the deceased government employee on 26.09.1995. 21. The precedent law has not left any doubt that the divorced daughter would stand on the same pedestal as an unmarried daughter being dependent upon the same family. However, the facts of this case are step better, as the petitioner was unmarried at the time of death of her father, the deceased government employee on 26.09.1995. 21. In light of the aforesaid observations as well as the precedent law cited by learned counsel for the petitioner, the present writ petition is allowed and the impugned order dated 12.08.2016 (Annexure-16), alongwith any other order denying the appointment to the petitioner on compassionate grounds, is quashed and set aside. The respondents are directed to consider the petitioner as an eligible daughter of the deceased government employee within the definition of dependent under Rule 2(c) of the Rules of 1996, and appropriately, grant compassionate appointment to the petitioner within a period of three months from today. However, it is made clear that the benefits of such compassionate appointment shall be prospective in nature.