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2019 DIGILAW 361 (RAJ)

Tirath Raj v. State of Rajasthan

2019-01-31

GOVERDHAN BARDHAR, MOHAMMAD RAFIQ

body2019
JUDGMENT : 1. This writ petition has been filed by petitioner-Tirath Raj assailing the constitutional validity of Rule 8 of the Rajasthan Compassionate Appointment of Dependants of Deceased Government Servant Rules, 1996 in so far as it creates discrimination between widow and widower with regard to upper age limit for appointment on compassionate ground. 2. Wife of the petitioner Smt. Saroj Bala was working with the respondent-Education Department of the Government of Rajasthan on the post of Teacher Grade-III. She unfortunately died while in service on 17.9.2017 leaving behind the petitioner- husband and one son Puneet Raj aged 12 years and daughter Bhavya aged about 6 years. Petitioner applied for compassionate appointment on the prescribed proforma to the Director, Secondary Education for Rajasthan within a month on 12.10.2017. His application has however been dismissed by order dt. 29.11.2017 as is evident from the order aforesaid which is on record at Annexure-2 signed by Additional Director (Administration), Directorate Secondary School, Rajasthan Bikaner on the premise that the petitioner as per Rule 8(ii) of the Rules of 1996 had crossed the upper age limit of 40 years. 3. Learned counsel for the petitioner has submitted that all the Service Rules of the State of Rajasthan were amended by the State of Rajasthan enhancing the outer upper age limit for appointment in Government service from 35 to 40 years by amendment Notification No. F.7(2)DOP/A-II/84 Pt. dt. 06.03.2018 and thus the outer upper age limit, which was earlier 35 years for candidates of general category itself having been enhanced to 40 years, therefore the age of 40 years indicated as the upper age limit in Rule 8(h) ought to be revisited by the Government. 4. It is argued that petitioner being covered in the definition of 'dependent' in Rule 2(c) of the Rules where the words 'dependent' also includes the spouse that would mean not only a widow but also widower in case a wife, who is in government service dies while in harness. Rule 8(i) of the Rules of 1996, which provides that there shall be no upper age limit for a widow, creates a discrimination between a male and female and being therefore contrary to Article 14, 15 and 16 of the Constitution of India, is liable to be declared ultra vires of the Constitution and struck down. 5. Rule 8(i) of the Rules of 1996, which provides that there shall be no upper age limit for a widow, creates a discrimination between a male and female and being therefore contrary to Article 14, 15 and 16 of the Constitution of India, is liable to be declared ultra vires of the Constitution and struck down. 5. Alternatively, learned counsel submitted that even if Rule 8(i) is not struck down being unconstitutional, it ought to be read down harmoniously construing the same with Rule 2(c) in which the 'dependant' includes a spouse, which would mean even a widower can claim compassionate appointment in the event of his wife serving the government has died in harness. 6. Shri Ganesh Meena, learned Additional Advocate General has relied on the judgment of the Supreme Court in Government of Andhra Pradesh vs. P.B. Vijayakumar & Anr., 1995 SCC (4) 520 and submitted that as per Article 15(3) of the Constitution, the State can make any special provision in favour of women and children and therefore Rule 8(i) has purposely provided relaxation of age limit only for a widow and not a widower. 7. The submission made by the learned Additional Advocate General does not impress us. When the rule making authority has deliberately in Rule 8(i) provided that there shall be no age limit for a widow with the some purpose of ensuring that in the event of any unforeseen incident of death of her husband, who is sole bread earner of the family, if she otherwise is eligible to claim compassionate appointment, the widower ought not to be put in a disadvantageous position for the purpose of upper age limit. While therefore we are not inclined to declare the aforesaid Rule ultra vires of the Constitution, but at the same time, we find that this Rule should be harmoniously construed with Rule 2(c) of the same Rules, which in the definition of 'dependant' provides that "dependant" means a spouse, son, unmarried or widowed daughter, adopted son/adopted unmarried daughter legally adopted by the deceased Government servant during his/her life time and who were wholly dependant on the deceased Government servant at the time of. his/her death. 8. his/her death. 8. There is no reason if a husband, being a spouse along with his children was dependant on the deceased Government servant, at the time of her death, should not be considered for compassionate appointment: This has become evident from, the definition of 'dependant', which begins with 'spouse' ends with the words 'deceased Government servant at the time of his/her death.' 9. The Supreme Court in Namit Sharma vs. Union of India, (2013) 1 SCC 745 while examining the challenge to the various provisions of Right to Information Act, 2005 observed that even if two views are possible, one making the statute constitutional and the other making it unconstitutional, the former view must prevail and the Court must make efforts to uphold the constitutional validity of a statute. The Courts would be reluctant to declare a law invalid or ultra vires on account of unconstitutionality. The Courts would accept an interpretation which would be in favour of the constitutionality, than an approach which would render the law unconstitutional. Declaring the law unconstitutional is one of the last resorts taken by the Courts. The Courts would preferably put into service the principle of 'reading down' or 'reading into' the provision to make it effective, workable and ensure the attainment of the object of the Act. The, relevant observations made by the Supreme Court in para 51 and 61 read as under: "51. Another most significant canon of determination of constitutionality is that the Courts would be reluctant to declare a law invalid or ultra vires on account of unconstitutionality. The Courts would accept an interpretation which would be in favour of the constitutionality, than an approach which would render the law unconstitutional. Declaring the law unconstitutional is one of the last resorts taken by the Courts. The Courts would preferably put into service the principle of 'reading down' or 'reading into' the provision to make it effective, workable and ensure the attainment of the object of the Act. These are the principles which clearly emerge from the consistent view taken by this Court in its various pronouncements. 61. It is a settled principle of law, as stated earlier, that Courts would. generally adopt an interpretation which is favourable to and tilts towards the constitutionality of a statute, with the aid of the principles like 'reading into' and/or 'reading down' the relevant provisions, as opposed to declaring a provision unconstitutional. 61. It is a settled principle of law, as stated earlier, that Courts would. generally adopt an interpretation which is favourable to and tilts towards the constitutionality of a statute, with the aid of the principles like 'reading into' and/or 'reading down' the relevant provisions, as opposed to declaring a provision unconstitutional. The Courts can also bridge the gaps that have been left by the legislature inadvertently. We are of the considered view that both these principles have to be applied while interpreting Section 12(5). It is the application of these principles that would render the provision constitutional and not opposed to the doctrine of equality. Rather the application of the provision would become more effective." 10. The Supreme Court in Delhi Transport Corporation vs. D.T.C. Mazdoor Congress & Ors., 1991 Supp (1) Supreme Court Cases 600 on the doctrine of weeding out as also in the context of a provision, which is in-articulated and on the question whether the Judges can articulate a law, which is in-articulated made the following observations: "115. We have noted the argument, learned and interesting, on the question of judicial law making imputing to the legislatures what these have not articulated. Should the Courts say or can say what the legislatures have not said? We have noted the controversy of how should legislation of limited legislatures, Parliaments or rule making bodies, who are not expected or enjoined to make rules or laws contrary to or in derogation or the constitutional prohibitions and inhibitions be read. We have been tempted to read down in the path of judicial law making on the plea that legislature could not have intended to give powers to the authorities or employers which would be violative of fundamental rights of the persons involved in the exercise of those powers and, therefore, should be attributed those powers on conditions which will only make these legal or valid. Our law making bodies are not law into themselves and cannot create or make all laws. They can only confer powers or make laws for the conferment of powers on authorities which are legal and valid. Such powers conferred must conform to the constitutional inhibitions. Our law making bodies are not law into themselves and cannot create or make all laws. They can only confer powers or make laws for the conferment of powers on authorities which are legal and valid. Such powers conferred must conform to the constitutional inhibitions. The question, therefore, is - is it possible or desirable to read down the power conferred under Regulation 9(b) or similar regulations permitting employer or the authority to terminate the employment of the employees by giving reasonable notice or pay in lieu of notice without holding enquiry with the conditions indicated or mentioned hereinbefore? Will it or will it not amount to making laws of stating which the legislature or the law making body has not stated? 116. We have been reminded that judges should not make laws. But the question is-can the judges articulate what is inarticulate and what can be reasonably and plainly found to be inherent on the presumption that a legislature or a law making body with the limited authority would act only within limitations so as to make the legislation or law valid and the legislature must be presumed to act with certain amount of knowledge and fairness protecting the rights of people concerned and aiming at fairness in action?" 11. It is trite that the interpretation of a provision of an Act or the Rules proceeds on the assumption that while making interpretation of a provision of an Act or Rules, the Court must make endeavour to discover and translate the intention of the legislature or the rule making body. Even then, the fact that a particular enactment is handy work of the bureaucratic machine may be produced at the behest of the legislature, if, however, the law is not properly articulated in a provision, the Courts can find the intention of the legislature from other provisions of the same enactment of the Act or the Rules or the legislative authority and on that basis articulate the intention of the legislature or the rule making authority where the provisions are plain and unambiguous and legislative intent is clearly discernible. In the instant case, when the rule making authority has by including the word 'spouse' in the definition of 'dependant' and also reiterating that intention by indicating both 'his/her' at the end of that definition intended to give benefit of compassionate appointment not only to the dependant wife of the husband serving the government, who dies in harness, but also vice versa. Even if, therefore, the word "widower" has not been specifically stated in Rule 8(i), it can be read into that provision. 12. We are therefore rather than going into validity of the Rule 8(i), read it down to also include 'widower' so as to make the rule workable or else even though a widower would be included in the definition of 'dependant' but would be deprive of consideration for appointment on account of haying crossed the upper age limit. Even otherwise, the State Government has recently by Notification No. F.7(2)DOP/A-II/84 Pt. dt. 06.03.2018 amended all the relevant Service Rules to increase the upper age limit of 35 years in case of general category candidates to 40 years and provided age relaxation of 5 years to SC/ST category candidates. 13. In the result, the writ petition is allowed. The impugned letter dt. 29.11.2017 is set aside. The respondents are directed to consider the candidature of the petitioner afresh in the light of this judgment and pass appropriate order on the application of the petitioner for compassionate appointment within 60 days from the date copy of this order is produced before them.