Madan Singh Parihar vs State of Raj. and Others

Rajesh Balia, J.—Father of the petitioner Shri Rawat Singh Parihar died on 5.4.1962 while he was employed as Forester in the Forest Department of State of Rajasthan. The petitioner who has studied upto Higher Secondary and has passed his Higher Secondary Examination, 1 979 from the Board of Secondary Education, Rajasthan, Ajmer, applied for a suitable appointment in the Forest Department under the Rajasthan (Recruitment of the Dependents of Govt. Servants Dying while in Service) Rules, 1975. Vide letter dated 1.5.1991, petitioner was informed that it is not possible to give him appointment under the rules of ,1975 presumably under the impression that the rules of 1975 are not applicable to the dependents of a Govt. Servant who died before 1.9.1 972 in view of the provisions of Rule 2(e) of the rules of 1975. Another Communication dated 6.4.91 was sent to the petitioner stating that appointment is not possible to be given to him because presently no post of Forestor is vacant under the Sirohi Forest Division against which he can be appointed.

While petitioner was conveyed that his application is not being considered and there is no vacancy of the post of Forester, in reply filed to show cause notices, it has been stated that since brothers of the petitioner are already in Govt. service and they have been so employed in the Govt. service after the date of death of petitioner''s father, therefore, the petitioner is not entitled to be considered for appointment under the rules of 1975. It has also been pleaded in the return that when admittedly petitioner has passed his Higher Secondary Examination in the year 1979, why he has not applied prior to 1991 and, therefore, the petitioner is disentitled to any relief.

It is contended by the learned Counsel for the petitioner that he did not apply earlier to 1991 because under the rules as they existed, the petitioner considered himself not eligible for appointment under the rules because his father had died prior to 2nd Sept. 1 972, infact as for back as in 1962. However, it was only after a Division Bench decision of this Court in Shashikant v. State of Rajasthan D.B. Civil Writ Petition No. 2194/84. decided on 16.3.1989 wherein the cut- off date, prescribed under Rule 2[e) of the rules of 1975 defining deceased Govt. servant, was held to be ultravires of Article 14 of the Constitution that an occasion arose for the petitioner to make an application under the rules. The fact that petitioner''s father died prior to 1972 cannot any more be held against , the petitioner for considering his application for employment under the rules of 1975 and, therefore, in the circumstances, petitioner cannot be held guilty of laches.

Having considered the facts of the case, I am of the opinion that petitioner''s application cannot be rejected merely on the ground that he moved an application for appointment in 1 991. This is a fact that until this Court held cut-off date fixed in Rule 2(e) of the rules of 1975 as ultravires, petitioner could not have expected his application to be entertain under the rules. The petitioner moved an application only after he had come across the judgment in Shashi Kant''s case (supra). Even the Govt. has issued Circular for considering cases of such employees who led prior to 2.9.1972 only after judgment in Shashi Kant''s case (supra). In view of these facts, I overrule the objection on the ground of laches raised by the respondents against entertaining the petition.

It is contended by the learned Counsel for the petitioner that so far as the Communication, made to him is concerned, it only given one reason for not considering his application i.e. non-availability of a vacancy of a Forester in the present in the Sirohi Division. A perusal of Rule 5 of the rules of 1975 leaves no room of doubt that employment under the rules of 1975 is not against any specific post. Prior to addition of proviso of Rules 5, by notification dated 22.8.1983, the appointment under the rules could be considered against any post which was outside the purview of the Rajasthan Public Service Commission in relaxation of Normal Recruitment Rules. After amendment dated 22.8.1 983, a proviso has been inserted to Rule 5 enabling consideration of appointment on any post which may even be within the purview of the Raj. Public Service Commission for which the dependent of the deceased Govt. servant is qualified and suitable for such post. The only embarco on consideration is in respect of post under the Rajasthan Administrative Service, the Rajasthan Police Service, the Rajasthan Judicial Service, Rajasthan Forest Service and the Rajasthan Accounts Service as has been mentioned in Rule 3. This may be apparent from the provisions of rr.3 and 5 of the rules of 1975, quoted here in below:

Application of the rules. - These rules shall be applicable for recruitment of dependent of the deceased Govt. Servants to public service and posts in connection with the affairs of the State except posts in major State Services i.e. the Rajasthan Administrative Service, the Raj. Police Service, the Rajasthan Forest Service, the Rajasthan Judicial Service and the Rajasthan Accounts Service.

Recruitment of a member of the family of the deceased.--/n cases of Govt. servants, who die while in service on or after the commencement of these rules, one member of his family, who is not already employed under the Central/State Govt. or Statutory Board/Organisations/Corporations owned or controlled by the Central/State Govt., shall on making an application for the purpose, be given a suitable employment in Govt. service without delay, only against an existing vacancy, which is not within the purview of the State Public Service Commission, in relaxation of the normal recruitment rules, provided such member fulfils the educational qualifications prescribed for the post and is also otherwise qualified for the Govt. service. In the event of non- availability of a vacancy or any of the members of the family, being unqualified or minor, is non found suitable or eligible of immediate employment that such cases should be considered immediately on the availability of the post or any one of them becomes qualified or eligible for such employment under these rules:

Provided that recruitment may be made on posts which are within the purview of the Rajasthan Public Service Commissions, except the major State Services mentioned in rule. 3 where the Appointing Authority is satisfied in consultation with the Department of Personnel and the Rajasthan Public Service Commission that that a dependent of a deceased Govt. servant is qualified and suitable for appointment to such post.

Thus, the application of the petitioner could not have been refused merely on the ground of non-availability of the post of Forester. If any post for which the petitioner was considered qualified and suitable was vacant under the Forest Department and if not under the Forest Department then in any other department, petitioner''s once ought to have been considered without any delay. Therefore, the ground disclosed in Annex. 2 for not considering the application of the petitioner for employment under the rules of 1975 is not sustained.

It was next contended by the learned Counsel for the petitioner that the new ground of closed in the return, submitted to the writ petitioner, is also not tenable. The ground disclosed in the return is that because petitioner''s brothers are already in Govt. service, therefore, petitioner cannot be offered appointment under the rules of 1975. Petitioner has given an affidavit that no member of the family of his deceased father has been offered appointment under the rules, of 1975 and therefore, application of the petitioner cannot be refused merely on the ground that of her heirs of the petitioner''s father are already in the Govt. service through the direct recruitment by the respective defendants

Reliance has also been placed on a Circular issued by the Govt. in the department of Personnel dated 2.1.92 replacing can earlier instruction in this connection and making it clear that application should be examined with view to find whether after the death of Govt. servent, any dependent has been given benefit of appointment under the rules.

This question came up for consideration in Shanti Gopal Purohit v. State of Ors. S.B. Civil Writ Petition No. 4815/92 decided on Feb. 23rd, 1992, wherein this Court observed as under:

Having carefully considered the rival contention and examined the rules, I am of the opinion that the circular dated 2nd January, 1992 is in consonance with the letter and spirit of the rule. The rules have been promulgated to mitigate the harshness of circumstances coming into existence due to demise'' of bread earner of the family to his dependents and to assuage the feeling of bareved family of a person in the employment of the dependents of ''deceased finding job in regular course under normal recruitment rules under their own merit. The benefit is extended only to the extent of providing one job amongst one or more dependents of the deceased on an application keeping in view the suitability of person for giving employment and keeping in view also the overall interest of the welfare of the entire family particularly the widow and the minor members thereof. Therefore, the fact that the adult member of the family have already established themselves on their own, does not preclude anyone of the remaining dependents to seek benefit of securing one job under the rule of 1975. It is not disputed before me that any the one of the two brothers who are employed in Govt. service, was given against under the rules of 1976. It has been stated by the petitioner that they were appointed in accordance with General Recruitment Rules of their respective service, therefore, the first contention of the learned Counsel for the petitioner merits acceptance that the consideration of application could not have been refused merely on the ground that two brothers of the petitioner were already in the employment, unless it could be said that atleast one of earlier appointments is under the rules of 1975.

In view of the aforesaid decision of this Court , the ground raised by the respondents in their return for not considering the case of the petitioner for appointment under the rules of 1975 is also not sustainable.

As a result, the petition is allowed and the respondents are directed to consider the case of the petitioner for offering him a suitable appointment for which ha is qualified and considered suitable under the rules of 1 975 within a period of three months from today.