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2023 DIGILAW 704 (RAJ)

Manju Sharma v. State of Rajasthan

2023-03-21

SUDESH BANSAL

body2023
JUDGMENT 1. Assistance of advocate for petitioner is not available, as advocates have taken a call to abstain from the judicial work and not to appear before Courts right from 20.02.2023 onwards, therefore, this Court has no option except to hear the petitioner, present in person and to consider the writ petition as per the material available on record on merits. 2. By way of instant writ petition, challenge has been laid by the petitioner to orders dated 31.12.2018, 06.03.2019 and 18.02.2022 whereby and whereunder prayer of petitioner to accord compassionate appointment to her son Bharat Sharma in place of her husband-late Shri Kailash Narayan Sharma who was posted as Head Constable and passed away on 07.05.2017 during the course of his service, has been declined and therefore the petitioner has made a prayer to quash and set aside impugned orders and direct respondents to consider her application for grant of compassionate appointment to her son namely Bharat Sharma. 3. From facts as pleaded in the writ petition, it transpires that the petitioner's husband Shri Kailash Narayan Sharma passed away on 07.05.2017 and at that point of time he was employed as Head Constable in the office of Superintendent of Police, Tonk. The deceased employee survived his wife aged about 52 years (present petitioner) and four sons namely; (1) Ram Nrayan Sharma aged about 33 years, (2) Laxman Narayan Sharma aged about 31 years, (3) Bharat Sharma aged about 28 years and (4) Shatrughan Sharma aged about 26 years. On 19.06.2017, the petitioner moved an application in prescribed format under provisions of the Rajasthan Compassionate Appointment of Dependents of Deceased Government Servants Rules 1996 (hereinafter referred to 'the Rules of 1996') before respondent No.2 and stated therein that her three sons except Bharat Sharma lived separately with their respective family and do not render any financial assistance to petitioner; she herself is not able to do job and therefore, she requested that compassionate appointment in place of her deceased husband may be accorded to her son namely Bharat Sharma. 4. Perusal of application dated 19.06.2017 filed by the petitioner indicates that no details about employment and income of other three sons of petitioner namely; Ram Nrayan Sharma, Laxman Narayan Sharma and Shatrughan Sharma were given out and in respect of her son Bharat Sharma, it was indicated that he has qualification of M.A. & B.Ed. 4. Perusal of application dated 19.06.2017 filed by the petitioner indicates that no details about employment and income of other three sons of petitioner namely; Ram Nrayan Sharma, Laxman Narayan Sharma and Shatrughan Sharma were given out and in respect of her son Bharat Sharma, it was indicated that he has qualification of M.A. & B.Ed. The application is accompanied with the independent affidavit of Ram Narayan Sharama, Laxman Narayan Sharma and Shatrughan Sharma, who have deposed no objection in according the compassionate appointment to their brother, Bharat Sharma. It has been noticed in the affidavit as well, there is no indication about their nature of employment. It appears that factual report was called for in respect of status of petitioner and her sons and inquiry was held. In the inquiry, statement of petitioner as well as her four sons and other documents pertaining to immovable property of petitioner as well as about employment of her sons were recorded/collected. The report of inquiry dated 02.06.2018 is available on record as Annexure-4. On inquiry the factual matrix revealed that one son of petitioner namely Laxman Naryan Sharma is posted as Constable in Rajasthan Police, and another son Shatrughan Sharma is posted as Assistant Manager in Union Bank of India, Zonal Office, Jaipur; the petitioner has rental income and it was opined that the economic condition of petitioner and her son was not found pathetic. 5. On revelation of facts that two sons of deceased employee are already in government job, therefore, under Rule 5 of the Rules of 1996 or the Circular dated 31.05.2016 issued by the Department of Personnel, Govt. of Rajasthan, respondent No.2 declined to accord compassionate appointment to Bharat Sharma (son of deceased employee), however, the compassionate appointment was offered to the petitioner vide its letter/order dated 13.12.2018 (Ann.5). 6. It appears that petitioner did not choose to get compassionate appointment for herself and insisted to grant the same to her son Bharat Sharma and sought for relaxation under Rule 5 of the Rules of 1996 by moving an application dated 01.01.2019 (Ann.6). The application was considered and the matter was sent to the Inspector General of Police, Rajasthan Jaipur but on facts of present case, no relaxation was found to be permissible, and accordingly, it was informed the petitioner vide letter dated 06.03.2019 (Ann.7) that the compassionate appointment to her son Bharat Sharma is not permissible. The application was considered and the matter was sent to the Inspector General of Police, Rajasthan Jaipur but on facts of present case, no relaxation was found to be permissible, and accordingly, it was informed the petitioner vide letter dated 06.03.2019 (Ann.7) that the compassionate appointment to her son Bharat Sharma is not permissible. Petitioner again make a request before the Inspector General of Police, Rajasthan, Jaipur, and the same was declined vide letter dated 18.02.2022 (Ann.8). Hence this writ petition. 7. Petitioner states that her three sons do not maintain the petitioner and family of her son Bharat Sharma and they were dependent upon late Sh. Kailash Narayan Sharma-deceased employee, therefore, on prayer of petitioner, the compassionate appointment to her son Bharat Sharma ought to have been accorded by respondents, and denial of compassionate appointment only on account of fact that her other two sons are in Govt. Job, is against aim and object of the Rules of 1996 as much as dismissal of her application seeking compassionate appointment to her son is arbitrary, illegal and violative to Articles 14 & 16 of the Constitutional of India. 8. Heard. Considered. 9. From facts narrated above and record, this Court has noticed that the factual matrix is not in dispute that Sh. Kailash Narayan Sharma was posted as Head Constable in the Office of Respondent No.2, when he passed away on 07.05.2017 and he survived his widow and four sons. The petitioner moved an application on 19.06.2017 for grant of compassionate appointment to one son of deceased namely Bharat Sharma. In the application, petitioner has not given details about the employment of other three sons of deceased as also about her economical status and source of livelihood. However, when the respondent No.2 called for factual report, after inquiry it has been revealed that two sons of deceased employee and petitioner, namely Laxman Narayan Sharma and Shatrughan Sharma are in Govt. Job, Laxman Narayan Sharma is in employment since 09.08.2003 posted as Constable in Rajashtna Police at Jaipur. Shatrughan Sharma is in employment with Union Bank of India since 05.01.2011 presently posted as Assistant Manger. The petitioner has admitted these facts in the writ petition in para No.7, thus it is apparent that such information about employment of her two sons namely Laxman Narayan Sharma and Shatrughan Sharma was concealed by the petitioner in her application dated 19.06.2017. Shatrughan Sharma is in employment with Union Bank of India since 05.01.2011 presently posted as Assistant Manger. The petitioner has admitted these facts in the writ petition in para No.7, thus it is apparent that such information about employment of her two sons namely Laxman Narayan Sharma and Shatrughan Sharma was concealed by the petitioner in her application dated 19.06.2017. That apart, in respect of economical status and source of income of petitioner has also come to light after the inquiry and the factum of her rental income as stated in the inquiry report, has not been disputed by the petitioner. The entire factual details about the status of petitioner and her family is detailed out in the factual report dated 02.06.2018 (Ann.4)which is available on record. In order to give the clear picture of factual matrix, it would be apposite to extract the portion of Factual Report dated 02.06.2018 (Ann.4) as under:- 10. Respondents have declined to accord compassionate appointment to the son of petitioner, placing reliance on Rule 5 of the Rules of 1996 as also on the basis of Circular dated 31.05.2016, issued by the Department of Personnel, Government of Rajasthan as indicated in the impugned order dated 31.12.2018. For ready reference, Rule 5 is being reproduced hereunder:- '5. Appointment subject to certain conditions-[(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 or at the time of appointment of the dependant.] Provided that this condition shall not apply where the widow seeks employment her 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. [(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 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 case notice asking him to explain why his services should not be terminated.] 11. It is not in dispute that respondent No.2, while declining to grant compassionate appointment to petitioner's son vide letter dated 31.12.2018 offered compassionate appointment to the petitioner, if she is desirous and asked her to submit application form within a period of one week, but the petitioner has not opted for the same. Petitioner has not shown any rule or judicial precedent that in such factual matrix, mandate of Rule 5 of the Rules of 1996 can be relaxed to accord compassionate appointment to her son. 12. In recent decision of the Hon'ble Supreme Court in case of Director of Treasuries in Karnataka & Anr. Vs. V. Somyashree [(2021) SCC Online SC 704], the principle governing the grant of appointment on compassionate ground have been considered. After referring the decision of the Hon'ble Supreme Court in case of N.C. Santhosh Vs. State of Karnataka [ (2020) 7 SCC 617 ] the Apex Court has summarized the principle governing the grant of appointment on compassionate ground as under:- '(i) that the compassionate appointment is an exception to the general rule; (ii) that no aspirant has a right to compassionate appointment; (iii) the appointment to any public post in the service of the State has to be made on the basis of the principle in accordance with Articles 14 and 16 of the Constitution of India; (iv) appointment on compassionate ground can be made only on fulfilling the norms laid down by the State's policy and / or satisfaction of the eligibility criteria as per the policy; (v) the norms prevailing on the date of the consideration of the application should be the basis for consideration of claim for compassionate appointment.' 13. In case of Mumtaz Yunus Mulani Vs. State of Maharashtra [ (2008) 11 SCC 384 ], the Hon'ble Supreme Court adopted and reiterated the principle that appointment of compassionate ground is not a source of recruitment, but a means to enable the family of the deceased to get over a sudden financial crises. The financial position of the family would need to be evaluated on the basis of the provisions contained in the scheme. 14. Recently in case of State of Maharashtra and Anr Vs. Madhuri Maruti Vidhate (since after marriage Smt. Madhuri Santosh Koli) [(2022) SCC OnLine SC 1327], the Apex Court allowed the appeal and set aside the judgment and orders passed by the Tribunal and confirmed by the High Court allowing compassionate appointment, after discussion of the object and purpose of compassionate appointment, in the light of judicial imprimature, as laid down in catena of previous judgments of Hon'ble Supreme Court and observed as under:- 'Thus, as per the law laid down by this Court in the aforesaid decisions, compassionate appointment is an exception to the general rule of appointment in the public services and is in favour of the dependents of a deceased dying in harness and leaving his family in penury and without any means of livelihood, and in such cases, out of pure humanitarian consideration taking into consideration the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made in the rules to provide gainful employment to one of the dependants of the deceased who may be eligible for such employement. The whole object of granting compassionate employment is, thus, to enable the family to tide over the sudden crises. The object is not to give such family a post much less a post held by the deceased.' 15. Applying the ratio decidendi expounded by the Apex Court in judgments referred hereinabove, to the facts of present case, this Court has no hesitation to hold that respondents have not committed any illegality and has not violated any of the legal right of petitioner, while declining to accord the compassionate appointment to her son. Impugned orders neither suffer from any arbitrariness nor can be treated against the aim and object of the Rules of 1996 or the judicial precedents of the Hon'ble Supreme court. 16. Impugned orders neither suffer from any arbitrariness nor can be treated against the aim and object of the Rules of 1996 or the judicial precedents of the Hon'ble Supreme court. 16. As a result, the writ petition is without substance and hereby dismissed. 17. Stay application and all other pending application(s), if any, also stand disposed of.