Manoj Kumar Sain vs State and Others

Veerender Singh Siradhana, J—The petitioner is aggrieved of the action of the State-respondents for not responding to his application claiming appointment on compassionate grounds for his father died while in service on 20th October, 2003, and therefore, has approached this Court praying for the following relief(s):--

"It is, therefore, most humbly prayed that your lordships may graciously be pleased to accept and allowed this writ petition and respondent be directed that giving the appointment to the petitioner on the pot of LDC or any other suitable post on the compassionate ground in place of his deceased father as per the provision of Rules.

Any other order or relief which this Hon''ble Court deems fit and proper may also be passed in favour of the petitioner.

Cost of the writ petition may kindly be awarded in favour of the petitioner."

Briefly, the indispensable skeletal material facts necessary for appreciation of the controversy raised herein needs to be first noticed. Learned counsel for the petitioner admitting the fact that mother of the petitioner was working in the Women and Child Development Department and has been accorded regular appointment, contended that the respondents ought to have considered the case of the petitioner with a symphathatic approach relaxing the bar as contained under Rule 5 of the Rajasthan Compassionate Appointment of Dependents of Deceased Government Servant Rules, 1996 (for short ''the Act of 1996'').

Indisputably, it is an admitted fact that the mother of the petitioner was in employment and has been accorded regular status as submitted by the learned counsel for the petitioner. A glance of the Rule 5 of the Rules, 1996, would reveal that the conditions precedent for eligibility to stake a claim for appointment on compassionate grounds, have been specifically incorporated in Rule 5 and 10 of the Rules of 1996.

One of the condition is that the claim for appointment on compassionate grounds 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. Rule 5 and Rule 10(3) of the Rules of 1996, reads thus:--

"5. Appointment subject to certain conditions. (1) When a Government Servant dies while in service one of his/her dependants 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.

(2) Appointment under these rules shall be given on the condition that the person appointed on compassionate 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 dependant on the deceased Government servant. If subsequently, at any time, it is proved that such dependant 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-cause notice asking him to explain why his services should not be terminated.

10(3). Such application shall be made to the Head of the office/Department in the proforma attached as Annexure-A to these rules, within a period of 90 days from the date of death of the Government Servant. The applicant shall submit an affidavit in support of monthly income (from all sources) of all the family members mentioned in Column No. 7 of Part-I of the application:

Provided that in an exceptional case where the State Government in the Department of Personnel is satisfied that the operation of provisions of this sub-rule causes financial hardship to the family of the deceased Government Servant and considers it necessary or expedient to relax the provisions of this sub-rule in a particular case, it may relax the provisions of this sub-rule to such extent and subject to such conditions as it may consider necessary for dealing with the case in a just and equitable manner."

In view of the admitted fact that mother of the petitioner is already in regular employment. The claim of the petitioner for appointment on compassionate grounds under the Rules of 1996, is not sustainable.

It is trite law that compassionate appointment is a concession as an exception, to the regular recruitment to public service in view of the Constitutional Scheme. The intended object of compassionate appointment is to tide over the family of the immediate financial crisis in view of sudden demise of the sole bread winner of the family, if the family of the deceased is so faced with such circumstances.

The Schemes/Rules providing for compassionate appointment, by the very nature, is a concession in exceptional circumstances, on account of sudden demise of the sole bread winner of the family, leaving the family in depression and financial hardship. Appointment to public service is regulated by the Constitutional Scheme and Statutory Recruitment Rules, affording an opportunity to all other eligible candidates, to have consideration of their candidature to seek employment in public service.

In the case of Director of Education (Secondary) and Another Vs. Pushpendra Kumar and Others, (1998) 4 AD 514 : AIR 1998 SC 2230 : (1998) 4 JT 155 : (1998) 3 SCALE 590 : (1998) 5 SCC 192 : (1998) SCC(L&S) 1302 : (1998) 3 SCR 432 : (1999) 1 SLJ 32 : (1998) AIRSCW 2122 : (1998) 5 Supreme 1 , the Hon''ble Apex Court of the land held thus:--

"8. The object underlying a provision for grant of compassionate employment is to enable the family of the deceased employee to tide over the sudden crisis resulting due to death of the bread earner which has left the family in penury and without any means of livelihood. Out of pure humanitarian consideration and having regard to 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 for giving gainful appointment to one of the dependents of the deceased who may be eligible for such appointment. Such a provision makes a departure from the general provisions providing for appointment on the post by following a particular procedure. Since such a provision enables appointment being made without following the said procedure, it is in the nature of an exception to the general provisions. An exception cannot subsume the main provision to which it is an exception and thereby nullify the main provision by taking away completely the right conferred by the main provision. Care has, therefore, to be taken that a provision for grant of compassionate employment, which is in the nature of an exception to the general provisions, does not unduly interfere with the right of other persons who are eligible for appointment of seek employment against the post which would have been available to them, but for the provision enabling appointment being made on compassionate grounds of the dependent of a deceased employee. In Umesh Kumar Nagpal Vs. State of Haryana and Others, (1994) 68 FLR 1191 : (1994) 3 JT 525 : (1994) 2 SCALE 834 : (1994) 4 SCC 138 : (1994) 3 SCR 893 : (1995) 1 SLJ 229 : (1994) 2 UJ 322 , this Court has taken note of the object underlying the rules providing for appointment on compassionate grounds and has held that the Government or the public authority concerned has to examine the financial condition of the family of the deceased and it is only if it is satisfied, that but for the provision of employment, the family will not be able to meet the crisis that a job is to be offered to the eligible member of the family. In that case the Court was considering the question whether appointment on compassionate grounds could be made against posts higher than posts in classes III and IV. It was held that such appointment could only be made against the lowest posts in non-manual and manual categories. It was observed:--

"The provision of employment in such lowest posts by making an exception to the rule is justifiable and valid since it is not discriminatory. The favourable treatment given to such dependent of the deceased employee in such posts has a rational nexus with the object sought to be achieved, viz, relief against destitution. No other posts are expected or required to be given by the public authorities for the purpose. It must be remembered in this connection that as against the destitute family of the deceased there are millions of other families which are equally, if not more destitute. The exception the rule made in favour of the family of the deceased employee is in consideration of the services rendered by him and the legitimate expectations, and the change in status and affairs, of the family engendered by the erstwhile employment which are suddenly upturned."

In the case of Umesh Kumar Nagpal (supra), the Hon''ble Apex Court of the land has declared in unequivocal terms that consideration for an appointment on compassionate grounds is not a vested right, which may be exercised at any time in future, keeping in view the very object of such an appointment being to enable the family to get over the financial crisis on account of demise of the sole breadwinner of the family.

For the reasons hereinabove, the writ petition is devoid of any substance and lacks in merit and therefore, deserves to be dismissed.

Ordered accordingly.

No costs.