Shanti Gopal Purohit vs State of Raj. and Others

Rajesh Balia, J.—Petitioner through the above petition claims relief under the Rajasthan Recruitment of the Dependents of Govt. Servants Dying while in Service Rules, 1975, hereinafter referred to as the Rules of 1975.''

According to petitioner, his father Shri Kishan Gopal Purohit died on 20th June, 1960 while he was employed as L.D.C. in the office of the Director of Archives, Govt. of Rajasthan, Bikaner. He left behind petitioner, petitioner''s two brothers and widowed mother. At the time of death of petitioner''s father, the rules of 1975 had not come into force. The rules were promulgated for the first time in 1975 and while they were brought into force with effect from the date of their publication in the Rajasthan Rajpatra, the same were made applicable to the dependents of those deceased Govt. servants who died while in service on or after the second day of September, 1972. However, a Division Bench of this Court in D.B. Civil Writ Petition No. 2194/84 Shashi Kant v. State of Rajasthan held in its judgment dated 16-3-1980 that cut-off date prescribed under Rule 2 (e) of the Rules of 1975 for deceased Govt. servant as a person dying on or after 2nd Sept. 1972 is ultravires of Article 14 of the Constitution and that a dependent of Govt. servant who died while in service before 1972, is also entitled to get employment in accordance with the rules. It is stated by the petitioner that thereafter he made an application somewhere in August, 1990 for giving him appointment on a suitable post under the rules of 1975. This application of the petitioner was refused vide Annex. 4 dated 30.8.90 on two grounds firstly that two sons of deceased Govt. employee are already in Govt. service and secondly that the petitioner has crossed the maximum eligible age for being appointed to Govt. service.

Petitioner challenges this refusal and has asked for the relief in the following terms:

the respondents may be directed to give appointment to the petitioner commensurate with his qualification as a dependent of late Shri Kishan Gopal Purohit in accordance with the Rules aforesaid as Instructor, ITI, Junior Engineer, etc., within the time which may kindly be specified by this Court .

It will be profitable to make reference to relevant rules to appreciate the petitioner''s contentions.

Rule 4 gives an overriding effect to these rules which reads as under:

Overriding effect of these rules.--These rules and any orders issued thereunder shall have effect notwithstanding anything to the contrary contained in any rule, regulations or orders in force at the commencement of these rules.

Rule 5 which prescribes for recruitment of a member of the family of the deceased, read as under:

Recruitment of a member of the family of the deceased.--In cases of Government 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, while 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 Govt. Service. In the event of non- availability of a vacancy or any of the members of the family, being unqualified or minor, is not found suitable or eligible for immediate employment, then such cases should be considered immediately on the availability of the post or any one of them second qualified or eligible for such employment under these rules.

Rule 7 prescribes for procedure where more than one member of the family seeks employment which is as under:

Procedure when more than one member of the family seeks employment.--If more than one member of the family of the deceased Govt. servant seeks employment under these rules, the Head of Department/Office shall decide about the suitability of the person for giving employment. The decision will be taken keeping in view also the overall interest of the welfare of the entire family, particularly the widow and the minor members thereof.

Rule 8 prescribes for relaxation for one and other requirements in the following terms:

Relaxation for age and other requirement--(1) The candidates seeking appointment under these rules must not be less than 16 years at the time of appointment. In the cases in which the wife of the deceased Government servant being the only candidate found qualified and eligible for such employment there shall he no maximum upper age limit.

(2) The procedural requirements for selection, such as written test, typing test or interview by a selection Committee or any other Authority, shall be dispensed with, but it shall be open to the Appointing Authority to interview the candidate in order to satisfy that the candidate will be able to maintain the minimum standards of work and efficiency expected on the post or to prescribe any condition, if considered necessary, for acquiring any training or proficiency e.g., typing speed or any other qualifications etc., within a reasonable period, after such employment under these rules.

Satisfaction of Appointing Authority as regards general qualifications.--Before a candidate is appointed, the Appointing Authority shall satisfy itself that:

(a) The character of the candidate is such as to render him suitable in all respect for employment in Government service;

Explanation.--Persons dismissed by the Union Government or by any State Government or by a Local Authority or a Corporation owned or controlled by the Central Govt. or a State Govt. shall be deemed to be ineligible for appointment to the service.

(b) He is in good mental and bodily health and free from any physical defect likely to interfere with the efficient performance of his/her duties, for which the candidate shall be required to appear before the appropriate medical authority and to produce a certificate of fitness in accordance with rules applicable to the case; and

(c) In the case of a male candidate, he has not more than one wife living and in the case of female candidate, she has not married a person already having a wife living.

Power to remove difficulties.--The State Govt. may, for the purpose of removing any difficulty (of the existence of which it shall be the sole judge) in the implementation of any provision of these rules, make any general or special '' order as it may consider necessary or expedient in the interest of fair dealing or in the public interest.

The State Govt. has also issued an order on 4-11-1 985 providing some uniform guidelines for assessing the eligibility of the dependents of deceased Govt. servants belonging to various services/categories for their appointment to various categories of posts in Govt. service under the provisions of the rules.

In view of the aforesaid provisions, it is contended that so far as the first ground for refusing the application is concerned, it is not tenable because both the brothers of the petitioner who are already employed did not seek such employment under the rules of 1 975 but were appointed as general candidates. The appointment of two brothers to the Govt. service as general candidates does not prohibit giving of employment to the applicant under the rules of 1 975. For this, the petitioner relies on Rule 5 of the rules of 1 975 which according to him enjoins an obligation on the respondents to provide one member of his family suitable employment who is not already employed under the Central/State Govt. or Statutory Board/Organisations/Corporations, owned or controlled by the Central/State Govt. on making an application for the purpose.

In reply, it is contended by the learned Addl. Govt. Advocate that since two brothers of the petitioner who were also dependent on the deceased Shri Kishan Gopal Purohit, have already been employed, no benefit under the rules of 1 975 can be extended to the petitioner as it is confined to only one dependent member of the family of the deceased. A circular was issued by the Govt. in the department of personnel dated 2nd Jan. 1992 wherein earlier instructions in connection with this question have been replaced with new one. While the earlier instructions were that if after the death of a Govt. servant, any dependent member of his family has been appointed in any Govt. service, it will be deemed to have been given under the rules. These instructions have now been substituted that the application should be examined with a view to find whether after the death of Govt. servant, any dependent has been given benefit of appointment under the rules and if that has been done, it will not enure for the benefit of other dependents. On this anvil, it is contended by the learned Counsel for the petitioner that appointment given under the General Recruitment Rules, cannot be considered to mean extension of benefit of the rules to dependent of the deceased.

Having carefully considered the rival contentions 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 rules. 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 assauge the feeling of bereaved family of a person in the employment of State as a measure of employer''s compassion, the fulfilment of these objective is independent of the dependents of deceased finding a 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 members 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 rules of 1975. It is not disputed before me that any of the two brothers who are employed in the Govt. service, was given benefit under the rules of 1975. It has been stated by the petitioner that they were appointed in accordance with General Recruitment Rules of their respective services, 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.

Regarding second ground of refusal, it is contended by learned Counsel for the petitioner that no upper age limit is prescribed under the rules and, therefore, refusal of application on the ground of over-age is also not tenable.

In response, it is contended by the learned Addl. Govt. Advocate that Rule 8, quoted hereinabove, given relaxation in upper age limit only in the case of widow and that too only, when she is lone candidate, found eligible for such employment.

From the scheme of the rules, it appears these the provisions of Normal Recruitment Rules are not applicable to recruitment under the rules. Under R.5 it is clearly mentioned that in case of deceased Govt. servants, one member of the family who is not already employed...on making an application for the purpose, be given a suitable employment in Govt. service without delay only against an existing vacancy...in relaxation of the normal recruitment rules, provided such member fulfils the education qualification prescribed for the post and is also otherwise qualified for Govt. service. It has further been envisaged in the event of non-availability of a vacancy or any of the members of the family being unqualified or minor, is not found suitable or eligible for immediate employment, then 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. Then Rule 4, gives the provisions of rules of 1975 an overriding effect over all other rules. Thus, Rr. 4 and 5, read together, make is abundantly clear that provisions of normal recruitment rule of a post in any Govt. Service are not applicable and appointment under the rules is made in relaxation of all other rules in all manners except educational qualification, prescribed for a particular post. The rules also envisage the appointments to be given at a future date if it cannot be offered immediately on happening of certain exigency like non-availability of vacancy or anyone of them being unqualified or not eligible for appointment under the rules of 1975, that is to say the eligibility based on age will have to correspond to the eligibility prescribed under the rules of 1 975 and not under the relevant provisions of the recruitment rules. Rule 8 on which reliance has been placed also leads to the conclusion that a different age limit has been prescribed for recruitment under the rules than provided under the normal recruitment rules, inasmuch as the minimum age limit under the Govt. service under the rules of 1975 is 16 years only whereas in various other rules, the minimum age for employment is 18 years and above. No maximum age limit for recruitment under the recruitment rules has been provided. However, it is provided not to fix any upper age limit is in case of lone candidature of widow of the deceased. This also clearly goes to show that upper age limit for the purposes of giving appointment under the rules could have been provided by the State but has not so far been provided, thought it has put an embarge to provide any upper age limit for giving appointment in case of the lone candidature of the widow of the deceased. This means that while the upper age limit could be provided-for in case of the considering eligibility of a candidate under the rules for appointment whether male or female but no upper age limit could be provided in case of lone candidature of widow of the deceased. However, no upper age limit infact has bean provided for giving employment to the dependents not even in the circular issued on 4-11-85 providing for uniform guidelines for assessing the eligibility of the deceased Govt. Servant. Coupled-with these provisions when the rules envisage that if appointment cannot be given immediately on making an application for want of vacancy or for want of requisite qualification, the consideration for appointment under the rules will be deferred till vacancy comes into existence or till any of the dependents becomes qualified. This also militates against any prohibition from considering the application of any dependent for appointment under the rules on the ground of upper age limit.

Moreover, I also find sufficient force in the contention of Mr. Mridul that present is a case which has arisen on account of the fact that prior to the decision in Shashi Kant''s case (supra), there was no occasion for the petitioner to have made an application under the rules and this occasion arose only on the advent of the aforesaid judgment when the cut-off date on the applicability of the rules was held ultravires. In these circumstances, the genuine difficulty arose in making the rules applicable to dependents of those deceased Govt. servants who died prior to 2nd Sept. 1972 and were still unprovided-for such an opportunity to avail of the benefit under the rules. This difficulty in the implementation of the provisions of these rules vis-a-vis those dependents ought to be removed by the State Govt. in exercise of its powers under R.10. In other words, necessary power to act in relaxation of upper age limit in the case like the present, exists in the State Govt. and when conditions for exercise of such power are shown to exist, the State Govt. is under an obligation to exercise such powers for the purpose for which the rules have been enacted.

In view of my aforesaid conclusions, the second ground of refusal of petitioner''s application also cannot be sustained.

Petition is accordingly allowed, the respondents are directed to consider the application of the petitioner for giving suitable employment commensurating with his qualification under the State under the rules of 1975 within a period of three months on merits without taking into consideration the question of upper age limit. Before parting with the case, it may be observed that it is within the province of the State Government to make appropriate provisions in the rules or issue appropriate guidelines providing eligibility criterion in regard to age of the applicants under the rules of 1975.