Vijay vs State of Rajasthan and Others

Veerender Singh Siradhana, J.—The petitioner aggrieved of the action of the State-respondents for not according him appointment on compassionate grounds, under the Rajasthan (Recruitment of Dependents of Government Servants Dying While in Service) Rules, 1975 (hereinafter referred to as the ''Rules of 1975''), has approached this Court praying for the following relief(s):--

"(1) By an appropriate writ, order or direction directing the respondents to give appointment to the petitioner on the post of sweeper on account of compassionate grounds from the date of application with all consequential benefits.

(2) Any other appropriate relief or order, which this Hon''ble Court may deems fit and proper in the facts and circumstances of the present case, may kindly be granted in favour of the petitioner.

(3) The costs of the litigation may kindly be awarded to the petitioner."

Briefly, the indispensable material facts necessary for appreciation of the controversy needs to be first noticed. It is pleaded case of the petitioner that his father died on 26th April, 1987, and his brother Mahendra was accorded appointment on compassionate grounds. Unfortunately, his brother also expired on 29th July, 1998. The petitioner has further pleaded that since his mother, who too was an employee of the Government, died on 12th March, 1994, and therefore, the petitioner submitted his application for consideration of his candidature for appointment on compassionate grounds under the Rules of 1975. According to the petitioner, his application which was filed immediately after the death of his mother, was not responded and no action was taken. However, he was informed vide communication dated 13th November, 1998, to submit a certificate/affidavit of his dependency on his mother within seven days of the receipt of the communication, so as to process the matter in response to his application for compassionate appointment filed on 29th August, 1998. The petitioner on 2nd February, 2001, submitted an affidavit of his dependency. The petitioner addressed a reminder with reference to his claim for appointment on compassionate grounds on 25th October, 2002, followed by a notice for demand of justice, through counsel, on 24th January, 2004.

In response to the notice of the writ application, the respondent number 4 has filed its counter-affidavit stating that on the death of father of the petitioner, the petitioner''s mother was accorded appointment, who expired on 12th March, 1994. It is further pleaded that the petitioner is a married person, and cannot stake his claim as a dependent of the deceased mother. The respondents have also disputed the factum of date of birth of the petitioner. According to the respondents, age of the petitioner was more than 30 years at the relevant time when the petitioner staked his claim for appointment on compassionate grounds, claiming himself to be a dependent of the deceased government employee. The claim of the petitioner has also been resisted in view of opinion of this Court in the case of Board of Revenue versus Rajendra: RLR 2001 (1) 500, and Smt. Roshan Ara and Anr. Versus State of Rajasthan: RLR 2001 (3) 564.

Learned counsel for the petitioner reiterating the pleaded facts and grounds of the writ application, has argued that the petitioner being an illiterate and poor person was not aware of the statutory provisions though he filed the application claiming appointment on compassionate grounds soon after the death, as would be reflected from the application (Annexure-1) though it does not bear any date. The learned counsel further submits that the petitioner''s age was 19 years at the relevant time, as would be reflected from the document dated 24th June, 1994 (Annexure-5), though in the application as well as according to the birth certificate, his date of birth has been communicated as ''15th January, 1996''. On being queried by the Court, the learned counsel for the petitioner was not able to state about the financial status of the family of the petitioner.

I have heard the learned counsel for the petitioner and with his assistance, perused the materials available on record.

Indisputably, the petitioner though moved an application claiming for appointment on compassionate grounds but has not indicated the date on which the application was filed. It is reflected from the communication dated 13th November, 1998, that the application was submitted on 29th August, 1998. The petitioner was called upon to furnish the necessary certificate/affidavit to substantiate the fact of his dependency on the deceased government employee (mother) and in response to the communication dated 13th November, 1998, he furnished the affidavit, stating his dependency on his mother, on 2nd February, 2001, enclosing an affidavit dated 25th January, 2001. A reminder was addressed on 25th October, 2002, followed by a notice for demand of justice dated 24th January, 2004. The instant writ proceedings were instituted on 4th March, 2004, almost after a decade of the death of the government employee (mother).

The petitioner, in the writ application, has not furnished the details of his financial status. Moreover, the very fact that the petitioner was aged about 30 years and with married status, was dependent on his mother ought to have been substantiated by substantial, cogent and convincing evidence and material. There is nothing on record to draw an inference that the petitioner was dependent on the deceased government employee (mother). From the materials available on record, it is also reflected that the very claim for the first time for appointment on compassionate grounds was staked by the petitioner in the year 1998, as is evident from the communication dated 13th November, 1998, wherein the petitioner was called upon to furnish the necessary certificate/affidavit to substantiate the fact of his dependency on the deceased government employee (mother). The petitioner responded to the communication dated 13th November, 1998, only in the month of February, 2001. A reminder was addressed on 25th October, 2002, followed by notice for demand of justice dated 24th January, 2004.

By now, it is a well settled law that the very concept of appointment on compassionate grounds is an exception carved out to cope with the emergent situation where the family of the deceased government employee is in financial crisis on account of sudden demise of the bread winner of the family. There is nothing on record to substantiate the fact that the petitioner and his family was in financial crisis. Moreover, the very fact that the petitioner staked his claim for appointment on the compassionate grounds in the year 1998, and thereafter furnished the required details as per his convenience in the year 2001, and availed the legal remedy in the year 2004 negatives the emergent situation of financial crisis, which is the object underlying the provisions of compassionate appointment.

The instant writ application is bound to fail on yet another ground for the instant writ proceedings were instituted in the year 2004, staking claim for appointment on compassionate grounds, under the Rules of 1975, which were repealed by the Rajasthan Compassionate Appointment of Dependents of Deceased Government Servants Rules, 1996. A glance at Rule 15 of the Rules of 1996 would revealed that the Rules of 1975 were completely repealed. Rule 11 of the Rules of 1996 gave an overriding effect to the Rules of 1996 notwithstanding anything to the contrary contained in the rules.

It is trite law that whenever an Act is repealed, it must be considered, except as to the transactions past and closed, as if it had never existed. Thus, the effect would be to obliterate the Act completely from the record. The Hon''ble Supreme Court in the case of Gajraj Singh etc. Vs. The State Transport Appellate Tribunal and others etc., (1996) 7 AD 490 : AIR 1997 SC 412 : (1996) 8 JT 356 : (1996) 7 SCALE 31 : (1997) 1 SCC 650 : (1996) 6 SCR 172 Supp , observed that the effect of repeal is to obliterate the Act completely from the record of Parliament as if it had never been passed; it never existed except for the purpose of those actions which were commenced, prosecuted and concluded while it was an existing law. A Division Bench of this Court while examining somewhat similar controversy in the case of Board of Revenue for Rajasthan and Anr. versus Rajendra; reiterating the object and the very concept of compassionate appointment held thus:--

"17. The object and very concept of compassionate appointment in itself is to give succor to the family to tide over sudden financial crisis befallen the dependants on account of the untimely demise of ils sole earning member. It is in order to mitigate the hardship caused to the Family and alleviate the distress of the family that as a welfare measure, the appointments are given on compassionate grounds. In this context me Supreme Court in Umesh Kumar Nagpal v. State of Haryana (7), and Managing Director MMTC Ltd. v. Promoda Dei (8), held that the consideration for compassionate appointment is not a vested right and such right cannot be exercised at any time in future. As held by Supreme Court in the case of Umesh Kumar Nagpal (supra) mere death of an employee in harness does not entitle his family to compassionate appointment. In the case of Promoda Dei (supra) the Supreme Court held that the object of compassionate appointment is to enable the penurious family of the deceased employee to tide over the sudden financial crisis and not to provide employment and that mere death of an employee does not entitle his family to compassionate appointment. The respondents in all these cases, therefore, in our view, cannot claim appointment on compassionate ground as a vested or indefeasible right.

The Supreme Court in LIC v. Asha Ramchandra Ambekar, (9), had observed that disregardful of law, however hard case may be, appointment on compassionate grounds should not be ordered if the case does not fall within the scope of law. The Supreme Court also held that there may be pitiable situation, but on that score the statutory provisions cannot be put aside. This opinion of the Supreme Court was reiterated by the Supreme court in State of Himachal Pradesh v. Jafli Devi (10).

We shall now deal with Rule 10(3) where in the limitation of 45 days from the date of death of deceased Government servant which has since been extended to 90 days has been provided with the object of ensuring that appointment on compassionate ground is given only in deserving cases to dependants of a Government servant dying In harass to mitigate the immediate hardship and at the earliest point of time. The Supreme Court in H.S.E.B. v. Naresh Tanwar (11), held that such concession cannot be allowed to be extended over the years so that by such lapse of time the heir of the deceased employee attains majority and then becomes eligible for being considered for appointment. The above view has again been affirmed by the Supreme Court in the recent judgment in the case of Sanjay Kumar v. State of Bihar (12).

Delay has always been held to be a valid criteria to refuse appointment on compassionate ground, object being to provide immediate assistance to the family in times of sudden financial crisis. In this context we may simply refer to the following decisions without extracting the passages:

(1) Sanjay Kumar v. State of Bihar (supra)

(2) State of UP v. Parasnath (13) (delay of 17 years)

(3) HSEB v. Hakim Singh, (14) (delay of 14 years)

(4) HSEB v. Naresh Tanwar, (supra) (delay of 12 years)

(5) Jagdish Prasad v. State of Bihar (15) (delay of 23 years)

(6) Union of India v. Bhagwan Singh (16) (delay of 20 years)

We shall now deal with Rule 5 of the Rules of 1996. Rule 5 and its proviso reads as follows:

"5. Appointment subject to certain conditions- 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/daughter of the deceased Government servant is already employed on regular basis under the Central/State Government or Statutory Board, Organisation/Corporation owned or controlled wholly or partially by the Central/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."

The above Rule says that if already one member of the family of the deceased Government servant is in employment on regular basis under the Central/State Government or statutory Board/Organisation/Corporation owned or controlled wholly or partially by the Central/State Government, employment on compassionate ground shall not be admissible to any of them. However, such restriction shall not be applied where the widow seeks employment for herself. This is a valid criteria and has an intelligible differentia and rational behind it. It has got a reasonable nexus with the object sought to be achieved. Besides the fact that Rule 5 has been adjudged constitutionally valid by the learned Single Judge himself. The Supreme Court in a number of judgments held the restriction to deny employment on compassionate ground on the premises that where rules provided that such appointment would not be given if one of the members of the family was already in employment. In S. Mohan v. Government of Tamil Nadu (17), the appellant''s mother while in service of Municipality died when the appellant was 12/13 years old and his two brothers were already employed and his father was receiving pension. 10 years later the appellant applied for and given by the Municipality compassionate appointment. The Supreme Court held that appellant''s compassionate appointment was unwarranted and ratification thereof was rightly refused by the Government. The Supreme Court upheld the consequential order of termination of the appellant and also held that the continuance of the appellant in service under interim orders of the Tribunal is inconsequential in this regard. The Court held that the compassionate appointment in this case is unjustified."

In the instant case at hand, the petitioner, aged about 30 years, with married status staked his claim for appointment on compassionate grounds under the Rules of 1975, by an application dated NIL, which was responded by the respondents, which indicates the date of application as ''29th August, 1998''. Thus, the application which was preferred under the Rules of 1975, and those Rules were not in existence in view of the ''Rules of 1996''.

Delay has always been held to be a valid criteria to refuse appointment on compassionate ground keeping in view the very object underlined to provide such an appointment as has been observed by the Division Bench of this Court in the case of Board of Revenue for Rajasthan and Anr. (supra).

The object underlying the appointment on compassionate grounds is primarily to provide immediate succor to the family of the deceased government servant while dying in harness. In a catena of judgments, the Hon''ble Apex Court of the land has held, in unequivocal terms, that compassionate appointment cannot be claimed as a matter of right. The claim has to be considered in accordance with the Rules, regulations or administrative instructions, governing the subject and not being oblivious of the financial condition of the family of the deceased government servant.

In the case of Smt. Mumtaz Yunus Mulani Vs. State of Maharashtra and Others, (2008) 117 FLR 565 : (2008) 4 JT 512 : (2008) 4 SCALE 637 : (2008) 11 SCC 384 : (2008) 2 SCC(L&S) 1077 : (2008) 3 SLJ 433 ; the Hon''ble Supreme Court referring to the earlier opinion in the case of K. Sasidharan Vs. Kerala State Film Development Corpn., AIR 1994 SC 2534 : (1994) 2 ARBLR 86 : (1995) 1 BC 18 : (1994) 3 JT 578 : (1994) 2 SCALE 811 : (1994) 4 SCC 135 : (1994) 3 SCR 82 and National Institute of Technology and Others Vs. Niraj Kumar Singh, AIR 2007 SC 1155 : (2007) 3 JT 163 : (2007) 2 LLJ 23 : (2007) 2 SCALE 525 : (2007) 2 SCC 481 : (2007) 1 SCC(L&S) 668 : (2007) 2 SCR 184 : (2007) 1 UJ 197 : (2007) AIRSCW 1169 : (2007) 1 Supreme 900 ; observed that appointment on compassionate grounds can only be granted to tide over sudden financial crisis of the family of the deceased. Further, it is now well settled of law that appointment on compassionate grounds is not a source of recruitment. The reason and object underlying such a claim for appointment is to see that the dependants of the deceased are not deprived of the means of livelihood. It only enables the family of the deceased government servant to tide over the sudden financial crisis on account of death of the bread winner of the family.

After a survey of several earlier opinions on the subject of compassionate appointment, in the case of State of Jammu & Kashmir and Others Vs. Sajad Ahmed Mir, AIR 2006 SC 2743 : (2006) 110 FLR 883 : (2006) 6 JT 387 : (2006) 7 SCALE 136 : (2006) 5 SCC 766 : (2006) SCC(L&S) 1195 : (2006) 3 SCR 576 Supp : (2007) 1 SLJ 219 : (2006) AIRSCW 3708 : (2006) 5 Supreme 566 , the Hon''ble Supreme Court observed thus:

"12. In State of Haryana and Ors. v. Rani Devi it was held that the claim of applicant for appointment on compassionate ground is based on the premise that he was dependent on the deceased-employee. Strictly this claim cannot be upheld on the touchstone of Article 14 or 16 of the Constitution. However, such claim is considered reasonable as also allowable on the basis of sudden crisis occurring in the family of the employee who had served the State and died while in service. That is why it is necessary for the authorities to frame rules, regulations or to issue such administrative instructions which can stand the test of Articles 14 and 16. Appointment on compassionate ground cannot be claimed as a matter of right."

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

Ordered accordingly.

However, in the facts and circumstances of the case, there shall be no order as to costs.