Varun Singh vs The Vardhman Mahavir Open University and Others

Veerender Singh Siradhana, J.—Aggrieved of the order dated 13th June, 2003, whereby the claim of the petitioner for appointment on compassionate grounds has been declined, the petitioner has instituted the present writ application, praying for the following relief(s):

"a) The entire record of compassionate appointments including the record of the petitioner may kindly be summoned from the respondents for kind perusal of the Hon''ble Court and after scrutiny of the same, appropriate orders or directions be passed in favour of the petitioner.

b) The respondents be directed to reconsider the case of the petitioner sympathetically in view of the fact that the mother of the petitioner is a patient of Schezopheronia and his father was living separate from his mother since 1997.

c) The impugned order dated 13.06.2003 (Annexure 3) passed by the respondent No. 2 may kindly be quashed and set aside and the respondents be directed to reconsider matter of compassionate appointment of the petitioner in the light of Rule 5 of the Rules of 1996, wherein it is provided that the Rules of 1996 may be relaxed in hard cases.

d) The other order which the Hon''ble Court finds just and proper in the facts and circumstances of the case may kindly be passed in favour of the petitioner."

Briefly, the skeletal material facts necessary for appreciation of the controversy raised needs to be first noticed. It is pleaded case of the petitioner that his father late Shri Ram Saran Singh, died on 12th May, 2003, while working as Office-assistant with respondent No. 1-Kota Open University. It is further pleaded that the mother of the petitioner though is in employment but she is a patient of Schizophrenia and the petitioner, therefore, resided with his father separately. The action of the respondent in declining appointment to the petitioner on compassionate grounds has been assailed for being illegal and arbitrary in the attending facts and circumstances of the case. The mother of the petitioner is residing separately on account of her disease since 1997. A representation addressed on 3rd December, 2003, evoked no response. The petitioner has claimed relaxation of the applicability of the Rule(s) of the Rajasthan Compassionate Appointment of Dependants of Deceased Government Servant Rules, 1996 (for short, ''the Rules of 1996''), but his prayer was not acceded to, hence the writ proceedings.

In response to the notice of the writ application, the respondents have filed their counter affidavit supporting their stand and action in declining appointment to the petitioner on compassionate grouns.

Learned counsel appearing on behalf of the respondents reiterating the pleaded facts of the counter affidavit, asserted that the Rule 5 of the Rules of 1996, specifically stipulates a condition to the effect that under the Rules of 1996, employment 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.

Further, in support of his submissions, the learned counsel has placed reliance on the opinion of a Coordinate Bench of this Court in the case of Raman Kumar v. State Bank of Bikaner and Jaipur and Ors. (SBCWP No. 418/2004), decided on 2nd December, 2014. The learned counsel has also relied upon the opinion of the Division Bench of this Court in the case of Jaya Bhaduri Vs. State of Rajasthan and Another, (2001) 4 WLC 559 : (2001) 2 WLN 364 . Reliance is also placed on the opinion of the Hon''ble Supreme Court in the case of State of H.P. And others v. Rajesh Kumar; (2001) 9 SCC 174 , and Bhawani Prasad Sonkar Vs. Union of India (UOI) and Others, (2011) 3 JT 293 : (2011) 3 SCALE 513 : (2011) 4 SCC 209 : (2011) 1 SCC(L&S) 667 : (2011) AIRSCW 2039 .

Indisputably, one of the spouse i.e. mother of the petitioner is in employment in the instant case at hand. The petitioner, admitting the fact of employment of her mother, has pleaded that she is a patient of Schizophrenia, and therefore, has been residing separately since 1997, and he resided with his father. However, from the facts, circumstances and materials available on record, it is not reflected that mother of the petitioner sufferred with the disease as stated and pleaded by him in the writ application. There is no material in support of the statement made.

Be that as it may, restating the factors which have to be borne in mind in the case of Bhawani Prasad Sonkar (supra), the Hon''ble Apex Court of the land, held thus:

"20. Thus, while considering a claim for employment on compassionate ground, the following factors have to be borne in mind:

(i) Compassionate employment cannot be made in the absence of rules or regulations issued by the Government or a public authority. The request is to be considered strictly in accordance with the governing scheme, and no discretion as such is left with any authority to make compassionate appointment dehors the scheme.

(ii) An application for compassionate employment must be preferred without undue delay and has to be considered within a reasonable period of time.

(iii) An appointment on compassionate ground is to meet the sudden crisis occurring in the family on account of the death or medical invalidation of the bread winner while in service. therefore, compassionate employment cannot be granted as a matter of course by way of largesse irrespective of the financial condition of the deceased/incapacitated employee''s family at the time of his death or incapacity, as the case may be.

(iv) Compassionate employment is permissible only to one of the dependants of the deceased/incapacitated employee, viz. parents, spouse, son or daughter and not to all relatives, and such appointments should be only to the lowest category that is Class III and IV posts."

Rule 5 of the Rules of 1996, specifically stipulates a condition subject to which an appointment on compassionate ground may be while according appointment to the dependant of a Government Servant dies while in service. Rule 5 of the Rules of 1996, reads thus:

"5. Appointment subject to certain conditions:--(1) When a Government servant dies 2 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.

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 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 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."

Thus, the application for appointment under the Rules of 1996, is to be accompanied with the details as required under Section 10 (3). The application has to be submitted along with an affidavit in support thereof indicating the monthly income (from all sources) of all the family members mentioned in Column No. 7 of Part-I of the application. However, in exceptional cases, the operation of the provisions of Sub-rule 3 of the Rule 10, may be relaxed in case of financial hardship to the family.

It is trite law that compassionate appointment is an exception carved out to tide over the family of the financial crisis to which the family has been subjected on account of sudden demise of the bread winner of the family. In the instant case at hand, no details of financial liabilities of the family have been detailed out. Moreover, the mother of the petitioner is already in employment, and therefore, the action of the respondents in declining the claim of the petitioner for appointment on compassionate grounds in the face of mandate of Rule 5 read with Rule 10 (3) of the Rules of 1996 cannot be faulted.

In the case of State of H.P. And others v. Rajesh Kumar; (2001) 9 SCC 174 dealing with somewhat similar controversy, the Hon''ble Apex Court of the land held thus:

"4. It is not disputed that the elder brother of the respondent is employed as a Clerk in the Office of the Superintending Engineer (I and PH), Shimla. The submission that he is living separately, would not make any difference as he, on respondents'' own showing, separated after the death of his father. Under the policy framed by the Government on 18-1-1990 relating to the appointment on compassionate grounds, it is specifically provided in para 5(c):

"In all cases where one or more members of the family are already in government service or in employment of autonomous bodies/bodies/boards/corporations etc. of the State/Central Government, employment assistance should not under any circumstances be provided to the second or third member of the family. In cases, however, where the widow of the deceased government servant represents or claims that her employed sons/daughters are not supporting her, the request of employment assistance should be considered only in respect of the widow. Even for allowing compassionate appointment to the widow in such cases the opinion of the department of personnel, and Finance Department should speciafically be sought and the matter finally decided by the Council of Ministers."

In the face of this policy decision, the High Court was not justified in issuing a direction to the appellant to grant employment to the respondent on compassionate grounds as his elder brother was already in government service. No right vested in the respondent to claiim an appointment on compassionate grounds. If, at all, any claim could have been made, it could only have been made by the widow in accordance with the above policy of the Government for consideration in the light of the policy guidelines dated 18-1-1990. The directions of the High Court to grant employment to the respondent, under the circumstances, is erroneous and cannot be sustained. The judgment of the High Court is, accordingly, set aside. This appeal thus succeeds and is allowed. There shall, however, be no order as to costs."

In the case Raman Kumar (supra), a Coordinate Bench of this Court referring to and relying upon the case of Bhawani Prasad Sonkar and the State Bank of Bikaner and Jaipur and Anr. (supra) observed that compassionate appointments cannot be claimed as a matter of right. The sole consideration for according such an appointment is humanitarian to provide immediate relief to the family of the deceased employee.

In the case at hand, father of the petitioner died while in service on 12th May, 2003. More than a decade has elapsed since then and the matter of the petitioner was already in employment at the time of death of his father, and therefore, the claim is not sustainable in the face of mandate of Rule 5 of the Rules of 1996. The action of the respondents in declining the claim of the petitioner for appointment on compassionate grounds cannot be faulted.

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

Ordered accordingly.

No costs.