Kamal Kishore Swami S/o Shri Ghanshyam Kumar Swami vs The State of Rajasthan

By way of the present writ petition, Mr. Sushil Solanki,

learned counsel for the petitioner has challenged the order dated

03.01.2017 whereby the petitioner''s application seeking

compassionate appointment under the Rajasthan Civil Services

(Appointment of Dependent of Deceased Employee) Rules, 1996

(hereinafter referred to as "the Rules 1996") has been rejected.

Facts relevant for the purpose of deciding the present writ

petition are that one Smt. Rajshree Swami was appointed on the

post of Junior Engineer (Diploma Holder) vide order dated

10.07.2015 and was working at Sub-Division Baneda, District

Bhilwara. Smt. Rajshree Swami was expired on 29.09.2016 while

she was working with the respondents. On her death the

petitioner, being younger brother of the deceased employee

submitted an application, seeking appointment on the

compassionate ground, under the Rules of 1996. The said

application came to be turned down by the Superintending

Engineering - respondent No.2 indicating therein that applicant

Kamal Kishore is brother of the deceased employee, who does not

fall within the definition of ''dependent'' given under Rule 2(c) of

the Rules of 1996. It will not be out of place to reproduce the

relevant provision contained in Clause-(c) of Rule 2 of the Rules of

1996 :-

"2(c) dependent means a spouse son, unmarried or widowed daughter, adopted son/daughter legally adopted by the deceased government servant during his/her life time and who are wholly dependent on the deceased Government servant at the time of his death".

Mr. Sushil Solanki, learned counsel for the petitioner

submitted that the petitioner being brother of the deceased

employee was totally dependent on income of his sister and as

such he falls within the ambit and scope of the expression

''dependent''.

He further argued that if the provision contained in Clause-

(c) of Rule 2 of the Rules 1996 is interpreted in its true

perspective, all family members, who are dependent on the

deceased Government servant at the time of his/her death, are

entitled for the compassionate appointment. In this regard, he

invited the attention of this Court towards the phrase which begins

after the word "and" and the same reads as under :

" ... ... ... who are wholly dependent on the deceased Government servant at the time of his death".

Bifurcating Clause-2(c), counsel for the petitioner contended

that if an incumbent can satisfy that he was totally dependent

upon the deceased Government servant, his case is required to be

considered, under the rules, irrespective of the fact, whether he

falls within the list of dependents given therein.

In support of his argument as aforesaid, counsel for the

petitioner relied upon a judgment dated 07.05.2013 passed by

this Court in SBCWP No.4868/2013 ( Smt. Laxmi Devi vs. Ajmer

Vidhyut Vitran Nigam Limited Ajmer & Ors .) and contended that

since the applicant''s mother, in that case has been held entitled

for appointment under the Rules of 1996, petitioner being brother

of the deceased employee is also entitled for such appointment.

I have heard learned counsel for the petitioner and perused

the material available on record.

The bifurcation of the definition contained in Clause-(c) of

Rule 2 of the Rules of 1996 as proposed by the counsel for the

petitioner is untenable and unsustainable in the eye of law. His

argument that the expression "who are wholly dependent on the

deceased Government servant at the time of his death" has to be

read as a separate clause is unpalatable, if not preposterous. The

aforesaid portion of Clause-(c) of Rule 2 cannot be read in

isolation, while completely ignoring the previous part of the

definition clause, which unequivocally restricts the meaning of the

"dependent" by naming the relatives as "spouse, son, unmarried

or widowed daughter, adopted son/daughter legally adopted by

the deceased Government servant".

In wake of the restrictive definition given under Clause-(c) of

Rule 2 of the Rules of 1996, this Court is unable to accept the

argument advanced on behalf of the petitioner. The latter part

which has been attempted to be read as separate clause by the

petitioner is nothing but a separate additional condition, stringed

with the first part of the definition. A purposive interpretation of

the definition means the "dependent" would be one of those

persons out of "spouse, son, unmarried or widowed daughter,

adopted son / daughter etc. who is wholly dependent on the

deceased Government servant. In other words, the latter part of

the definition has been incorporated only to clarify that the person

mentioned in the first part shall not be treated to be "dependent"

merely because they are relatives of the deceased employee; but

they will have to establish that they were wholly dependent on the

deceased Government servant.

In considered view of this Court, a person claiming

appointment as a dependent of the deceased Government

Employee has to satisfy twin conditions :

(i) He has to be a relative mentioned in first part of the definition such as spouse, son, unmarried or widowed daughter, adopted son/daughter legally adopted by the deceased Government servant" and ;

(ii) he has to be wholly dependent upon the deceased Government employee.

True it is, that the petitioner has claimed himself to be a

person totally dependent upon his sister Smt. Rajshree Swami but

as he does not fall in the ambit of the relatives mentioned in

Clause- 2(c) of the Rules of 1996, he cannot claim any right of

appointment under the Rules of 1996.

Adverting to the judgment dated 07.05.2013 of this Court

rendered in case of Smt. Laxmi Devi (supra); a careful reading of

the said judgment shows that the deceased Government Employee

in that case namely Sushil Kumar had died while in service on

11.07.2012 and his mother Smt. Laxmi Devi claimed appointment

on compassionate ground. This Court expanding the definition of

"dependent" has held that the mother is also a dependent of the

deceased Government employee and as such entitled for claiming

appointment under Rules of 1996.

In considered opinion of this Court, a mother in given case

can be treated as dependent in being class-I heir of the deceased

son whereas the brother does not fall in the category of class 1

heir. As such the judgment dated 07.05.2013 rendered by this

Court in case of Smt. Laxmi Devi is of no avail to the petitioner.

According to Section 15 of Hindu Succession Act, 1956,

property of a female Hindu dying intestate shall devolve according

to the rules set out in Section 16, of the Act, 1956 upon the

mother father. The petitioner being brother of Government

employee thus can neither be treated to be her heir nor a

dependent within the meaning of Rules of 1996. Though it is not a

case of succession, but the principles of succession also oust the

petitioner from claiming from estate of his sister. As such the

definition as given cannot provide a leeway to expand its scope to

include brother of a deceased employee in the ambit of

dependent.

There is no substance and force in this writ petition, and the

same is dismissed accordingly.