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2023 DIGILAW 1272 (RAJ)

State of Rajasthan v. Sushila Devi W/o Shri Sawarlal

2023-07-04

MANINDRA MOHAN SHRIVASTAVA, PRAVEER BHATNAGAR

body2023
ORDER : 1. Heard. 2. This intra-court appeal is directed against the order dated 19.12.2022 passed by learned Single Judge, whereby the writ petition filed by the respondent seeking compassionate appointment has been allowed. 3. The facts necessary for adjudication of the controversy involved in this Special Appeal are that the mother-in-law of the respondent, who was working on the post of ‘Coolie’ in the Respondent-Department died on 15.07.2007. Immediately thereafter, within a period of 8 days, an application for compassionate appointment was made by the son (husband of the writ petitioner) on 23.07.2007. While the application of the son of the deceased employee was under process for grant of compassionate appointment, having been forwarded by respondent No. 2 to Superintendent Engineer, Jaipur, an unfortunate incident took place when the son/applicant Sawar Lal (husband of the writ petitioner) also died on 14.03.2008. He left behind the writ petitioner, his widow and three minor children in lurch, who were fully dependent on the deceased employee. She made an application for grant of compassionate appointment on 03.03.2009 as provided under the Rajasthan Compassionate Appointment of Dependents of Deceased Government Rules, 1996 (‘Rules of 1996’ in short). The application, however, came to be rejected on 19.03.2009 on the basis that under the Rules, daughter-in-law is not entitled to compassionate appointment, as she is not included in the definition of dependent family members under the Rules. This led to filing of the writ petition which came to be allowed by the learned Single Judge. 4. Learned Single Judge while granting relief to the respondent-writ petitioner placed reliance upon an order passed by a learned Single Judge of this Court in the case of Smt. Pinki vs. State of Rajasthan and Others, 2012 (1) WLC (Raj.) 431 as also the order passed by Division Bench in D.B. SAW No. 1915/2011 decided on 05.01.2012, dismissing appeal against the order of the learned Single Judge. 5. Learned counsel appearing for the appellants would argue that the learned Single Judge committed illegality in allowing the writ petition and ignoring the clear provisions in Section 2(c) of the Rules of 1996, which do not include within the scope and ambit of definition of ‘dependent’ a widowed daughter-in-law though it includes widowed daughter. He would submit that it was not permissible for the Court to add or reject words. He would submit that it was not permissible for the Court to add or reject words. According to him, rightly or wrongly, the Rules do not provide for compassionate appointment to a widowed daughter-in-law. Unless the Rules permit compassionate appointment to a daughter-in-law, no writ of mandamus could be issued by the Court directing the appellants to grant compassionate appointment to daughter-in-law. In support of his submissions, he places reliance upon the decision of Hon’ble Supreme Court in the case of the Director of Trasuries in Karnataka and Another vs. V. Somyashree. Learned counsel for the appellant also places reliance on the judgment of this Court in the case of Smt. Sapna vs. State of Rajasthan, D.B. Civil Writ Petition No. 9686/2020, decided on 04.12.2020. 6. On the other hand, learned counsel appearing for respondent -writ petitioner would submit that the order of learned Single Judge is based on an earlier order of this Court in the case of Smt. Pinky vs. State of Rajasthan and Others (supra), wherein Rule 2(c) of the Rules of 1996 containing definition of ‘dependent’ has been interpreted so as to include a ‘widowed daughter-in-law’ as well. He would submit that the object and purpose of the Compassionate Appointment Rules is to provide immediate relief to the family of the deceased employee, who were dependent on the deceased employee. 7. In the present case, it is contended that initially when the government servant died, she was survived by many dependents which included son, daughter-in-law and three minor children. The son made an application for grant of compassionate appointment which was processed. There is nothing on record to show that the application of the son was rejected on the ground that he was not dependent on his mother (government employee). However, when the son died before grant of any compassionate appointment to him, the widowed daughter-in-law was entitled to be considered and for that purpose the relevant Rule is required to be purposively construed and interpreted to advance the object of beneficent legislation. He would further submit that the order passed by learned Single Judge in the case of Smt. Pinky vs. State of Rajasthan and Others (supra) was challenged by filing an appeal by the State and the same was also dismissed vide order dated 05.01.2012 in D.B. SAW No. 1915/2011 State of Rajasthan vs. Smt. Pinky. 8. He would further submit that the order passed by learned Single Judge in the case of Smt. Pinky vs. State of Rajasthan and Others (supra) was challenged by filing an appeal by the State and the same was also dismissed vide order dated 05.01.2012 in D.B. SAW No. 1915/2011 State of Rajasthan vs. Smt. Pinky. 8. We have heard submission of learned counsel for the parties perused the record and order passed by learned Single Judge. The order of the learned Single Judge allowing the writ petitioner essentially relied upon the earlier judgment of a learned Single Judge of this Court in the case Smt. Pinky vs. State of Rajasthan and Others (supra). 9. The facts of the present case are that mother-in-law of the writ petitioner was appointed on the post of ‘Coolie’ and had been working as such until she died on 15.07.2007. It is also not in dispute that soon thereafter, her son namely Sawar Lal (husband of the writ petitioner) applied for grant of compassionate appointment. The pleadings made by the parties, which are beyond any dispute further show that while application remained pending after having been forwarded to the Superintendent Engineer, Jaipur, Sawar Lal unfortunately died on 14.03.2008. 10. From reply of the respondents, filed before the learned Single Judge or before this Court in appeal, there is nothing to show that Sawar Lal was otherwise not entitled to compassionate appointment on the ground that he was not dependent upon his mother and was earning independently to maintain his wife (writ petitioner) and three minor children. Therefore, we have proceeded on this presumption of fact that when the mother-inlaw of the writ petitioner died, her son namely Sawar Lal and his wife (writ petitioner) and three minor children were dependent upon the income earned by the writ petitioner’s mother-in-law. 11. It is not a case where during the lifetime of son of the deceased employee, an application for grant of compassionate appointment was made by the writ petitioner. In unfortunate event the husband of the writ petitioner also died before he could be granted compassionate appointment, therefore, in these circumstances, the writ petitioner, who is the widowed daughter-in-law, applied for grant of compassionate appointment. In unfortunate event the husband of the writ petitioner also died before he could be granted compassionate appointment, therefore, in these circumstances, the writ petitioner, who is the widowed daughter-in-law, applied for grant of compassionate appointment. She was definitely dependent on her mother-in-law because there is no material on record to show that her husband Sawar Lal was earning independently and, therefore, otherwise not entitled to compassionate appointment. There is absolutely no doubt that she was dependent on the earning of her mother-in-law, who died in harness. 12. The next question, which arises for consideration is whether the Rules of 1996 permit a widowed daughter-in-law to be included in the category of dependent so as to qualify and become eligible to seek compassionate appointment under the relevant Rules. 13. It is well settled legal position that compassionate appointment is an exception to general Rules. Ordinarily all the appointments have to be made in accordance with the constitutional schemes and the relevant Rules and Regulations after inviting applications and selecting most suitable candidate for public employment. However, as an exception to this Rule, scheme of compassionate appointment to the dependent of the deceased government employee is prevalent and by consistent practice, has become one of the essential attribute of a public employment. 14. It is also equally well settled that compassionate appointment can be claimed only in accordance with Rules and not de hors the Rules. Having noted the aforesaid legal position, what is required to be seen in the present case is as to whether Rule 2(c) of the Rules of 1996 which defines “dependent” could be interpreted liberally so as to include widowed daughter-in-law. The said Rule was in force at the time of death of the employee and at the time of making application for grant of compassionate appointment. Relevant Rule for ready reference is reproduced here in below: “(c) “Dependent” 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 dependent on the deceased Government servant at the time of his/her death.” 15. Relevant Rule for ready reference is reproduced here in below: “(c) “Dependent” 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 dependent on the deceased Government servant at the time of his/her death.” 15. Therefore, the definition of dependent 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 dependent on the deceased government servant at the time of his/her death would be included as dependent. The aforesaid definition includes a widowed daughter. 16. The aforesaid aspect as to whether a liberal interpretation is permissible so as to include a widowed daughter-in-law by applying principle of purposive interpretation of a beneficent legislation so as to advance the object of enactment, came up for consideration of a learned Single Judge of this Court in the case of Smt. Pinky vs. State of Rajasthan & Others (supra). That was a case where the daughter-in-law claimed compassionate appointment after death of her father-in-law and her husband in a road accident. 17. The claim of compassionate appointment was negatived because Rule 2(c) of the Rules of 1996 did not include “daughter-in-law” as one of the dependent. Learned Single Judge of this Court interpreted Rule 2(c) of the Rules of 1996 widely and liberally so as to include a widowed daughter-in-law as well. 18. Though, in its literal meaning and definition of the word ‘dependent’ does not include a widowed daughter-in-law but it does include a widowed daughter. That sufficiently explains the intention of the Rule making authority. The inclusion of widowed daughter clearly means that even after marriage, if at the time of death of an employee, there is a widowed daughter, she would be entitled to compassionate appointment. If that be the object of grant of compassionate appointment to include even a widowed daughter, there could be absolutely no rational or logic in excluding a widowed daughter-in-law, who otherwise is presumed to be residing with her husband provided she fulfills the requirement of dependency. 19. In the present case, when the government employee died, her son applied for compassionate appointment but before he could be granted compassionate appointment, he also died. In these exceptional circumstances the writ petitioner, widowed daughter-in-law applied for compassionate appointment. 19. In the present case, when the government employee died, her son applied for compassionate appointment but before he could be granted compassionate appointment, he also died. In these exceptional circumstances the writ petitioner, widowed daughter-in-law applied for compassionate appointment. Once the dependency of the writ petitioner is not in dispute, we are of the view that the provisions contained in Section 2(c) of the Rules of 1996 which define ‘dependent’ needs to be liberally construed so as to include not only a widowed daughter but also a widowed daughter-in-law. In the case of Smt. Pinky vs. State of Rajasthan and Others (supra) interpretation, based on cardinal principle was as below: 9. Lord Denning in Magor and St. Mellons vs. Newport Borough Council, said that “we sit here to find out the intention of Parliament and carry it out and we do this better by filling in the gaps and making sense of the enactment than by opening it up to destructive analysis.” Justice Aharon Barak, President of the Supreme Court of Israel, while discussing the scope of doctrine of the “purposive interpretation” pointed out that “in carrying out a purposive interpretation of a constitution or a statute, it is necessary to distinguish between its subjective and objective purposes. The subjective purpose of a constitution or statute is the actual intent that the authors of it, namely, the farmers of the constitution or the legislature, respectively, held at the time of the making of the constitution or the statute. On the other hand, the objective purpose is not what the author actually intended but rather what a hypothetical reasonable author would have intended, given the context of the underlying legal system, history and values, etc. of the society for which he is making law. This objective purpose will thus usually be interpreted to include the realization, through the given legal text, of the fundamental or core values of the legal system.” 10. The Francis Bennion in a book of Statutory Interpretation (4th Edition 2002 Page 810) defined the purposive interpretation as under: “A purposive construction of an enactment is one which gives effect to the legislative purpose by: (a) following the literal meaning of the enactment where that meaning is in accordance with the legislative purpose. (b) applying a strained meaning where the literal meaning is not in accordance with the legislative purpose.” 11. (b) applying a strained meaning where the literal meaning is not in accordance with the legislative purpose.” 11. The doctrine aforesaid is not alien to our jurisprudence also. The only caution given by the Apex Court in several judgments including the J.P. Bansal vs. State of Rajasthan and Another, AIR 2003 SC 1405 and State of Jharkhand vs. Govind Singh and Another, JT 2004 (10) SC 349 is that the effect of such interpretation of a statute in no case should be of amending the law. 12. From the discussion above, it is clear that in exceptional cases, without having any effect of amending the law the Courts with a view to bring the law as per the reasonable and purposive intention of the law maker and also looking to all relevant objective conditions may adopt the doctrine of “purposive interpretation.” 13. Now coming to the Rules of 1996, purpose of which is to provide a respite by way of employing his/her dependent during the time of distress/harness due to unexpected death of a government servant, it is to be examined that whether non-inclusion of “widowed daughter-in-law” as suggested by learned counsel for the respondents serves the purpose of the Rules or ultimately the intent of the author of the Rules. The scope of the Rules of 1996, as per Rule 4 is to govern appointment of the deceased government servant on compassionate grounds without conferring any right for a particular post. The Rule 5 of the Rules of 1996 provides certain conditions for appointment and those are: “(1) When a Government servant dies while in service one of his/her dependents may be considered for appointment in Government service subject to the condition that employment under these rules shall not be admissible in cases where the spouse or at least one of the sons, unmarried daughters, adopted son/adopted unmarried daughter of the deceased Government servant is already employed on regular basis under the central/ any State Government or Statutory Board, Organisation/Corporation owned or controlled wholly or partially by the Central/any State Government at the time of death of the Government servant. Provided that this condition shall not apply where the widow seeks employment for herself. Provided that this condition shall not apply where the widow seeks employment for herself. (2) Appointment under these rules shall be given on the condition that the person appointed on compassionated ground shall maintain properly the other family members who were dependent on the deceased Government servant and on furnishing an undertaking in writing that he/she shall maintain properly the other family members who were dependent on the deceased Government Servant. If subsequently, at any time, it is proved that such dependent family members are being neglected or are not being not being maintained properly by him, the appointment may be terminated by the Appointing Authority after providing an opportunity to the compassionate appointee by way of issue of show cause notice asking him to explain why his services should not be terminated.” 14. At this point, the reference of the definition of the “Dependent” as given in Rule 2(c) of the Rules of 1996 shall be worthwhile which brings spouse, son, unmarried daughter or widowed daughter, adopted unmarried daughter and adopted son in its ambit, and as per Rule 5(1) the admissibility for appointment under the Rules of 1996 is not available, where the spouse or at least one of the sons, unmarried daughters, adopted son/adopted unmarried daughter of the deceased government servant is already employed on regular basis under the Central/any other State or the Statutory Board, Organisation/Corporation owned or controlled wholly or partially by the Central or any other State Government at the time of death of the government servant. 15. It is quite important to notice here that sub-rule ( 1) of Rule 5 of the Rules of 1996 do not mention about a widowed daughter who is otherwise a dependent as per Rule 2(c). This exclusion is having a significance. If the law framing authority was to provide inadmissibility for appointment on simplicitor employment of any dependent, then “widowed daughter” should have also been referred in Rule 5(1), but that has not been done purposely. The exclusion of the “widowed daughter” in Rule 5(1) is made only with a view that such a daughter is supposed to serve and support her in-laws and her own children also, therefore, even if she is having some employment with the institutions referred in sub-rule (1) of Rule 5, the other dependents shall be having admissibility for compassionate appointments. The exclusion of the “widowed daughter” in Rule 5(1) is made only with a view that such a daughter is supposed to serve and support her in-laws and her own children also, therefore, even if she is having some employment with the institutions referred in sub-rule (1) of Rule 5, the other dependents shall be having admissibility for compassionate appointments. The exclusion of “widowed daughter” in Rule 5(1) in quite unambiguous terms depicts that the author of the Rules were aware about the fact that a “daughter-in-law” who also happens to be a “widowed daughter” is supposed to serve her in-laws, her children and also her parental family. 16. The question now arise that if the law making authority was aware about the position of “widowed daughter-in-law” then why in the category of dependents under Rule 2(c) of the Rules of 1996, she as not been placed in explicit? To resolve this knot, a look on the relations expressly referred in the definition of dependents is desirable. The relations of spouse, son, adopted son, unmarried or adopted unmarried daughter in no way can include the relation of “widowed daughter-in-law” however, the term “widowed daughter” appears to be quite wide and that may include “widowed daughter-in-law” for the purpose of these rules. 17. If the rule makers were intending to exclude “widowed daughter-in-law” from the category of dependents, then they would have include “widowed daughter” in the category of dependents, employment of whom makes appointment on compassionate grounds inadmissible under the Rules of 1996, but it has not been done. Meaning thereby, a “widowed daughter” is also a “widowed daughter-in-law” who is supposed to serve her in-laws and children. Thus, it appears that he term “widowed daughter-in-law” is part of widowed daughter.” 20. An appeal was preferred against the order passed by learned Single Judge in the case of Smt. Pinky vs. State of Rajasthan and Others (supra) which was also dismissed by a Division Bench in D.B. SAW No. 1915/2011 State of Rajasthan vs. Smt. Pinky vide judgment dated 05.01.2012. 21. We have gone through the aforesaid judgment. Though the legal issue was kept open for being dealt with in appropriate case as and when occasion arises in future, taking into consideration the facts and circumstances of the case in hand that the daughter-in-law alone was left with minor daughters and old ladies, no interference was made in the order. 21. We have gone through the aforesaid judgment. Though the legal issue was kept open for being dealt with in appropriate case as and when occasion arises in future, taking into consideration the facts and circumstances of the case in hand that the daughter-in-law alone was left with minor daughters and old ladies, no interference was made in the order. 22. We are of the view that the decision of this Court in the case of Smt. Pinky vs. State of Rajasthan and Others (supra) laid down the correct legal position with regard to interpretation of Section 2(c) of the Rules of 1996 containing definition of “dependent” so as to include not only a widowed daughter but also widowed daughter-in-law. It is however, with the caveat that in any case, the applicant seeking compassionate appointment has necessarily to be dependent on the deceased employee. 23. Learned counsel for the appellant placed reliance on the decision of Hon’ble Supreme Court in the case of Director of Trasuries in Karnataka and Another vs. V. Somyashree. In fact, that was a case where at the time of death of the employee, his daughter was enjoying marital status and she was not a widow. It was after sometime, she obtained divorce and then claimed compassionate appointment seeking her inclusion as ‘dependent’ alongwith widowed daughter. In this factual background, the Hon’ble Supreme Court was of the view that it was not permissible to allow divorced daughter to be included in the definition of ‘dependent’ alongwith unmarried daughter or widowed daughter. Further, the Hon’ble Supreme Court also noticed the fact that at the time of death of deceased employee, the writ petitioner therein was married daughter and only subsequently she obtained divorce. Therefore, the aforesaid decision does not advance the case of the appellants. 24. Another decision in the case of Smt. Sapna vs. State of Rajasthan, D.B. Civil Writ Petition No. 9686/2020 does not support the case of the appellants. That was a case where a married daughter was denied compassionate appointment as she was not included in the definition of ‘dependent’ under Rule 2(c) of the Rules of 1996. The decision in the case of Smt. Pinky vs. State of Rajasthan and Others (supra) was distinguished by the Division Bench because compassionate appointment was sought by daughter-in-law, whereas the case in hand before the Court was that of the married daughter. The decision in the case of Smt. Pinky vs. State of Rajasthan and Others (supra) was distinguished by the Division Bench because compassionate appointment was sought by daughter-in-law, whereas the case in hand before the Court was that of the married daughter. Therefore, apparently the decision of Smt. Sapna vs. State of Rajasthan relied upon in the present case is clearly distinguishable. 25. In the result, we do not find any merit in the present appeal and the appeal is therefore, dismissed. 26. All pending applications also stand dismissed.