Geeta Kanwar @ Uchchhab Kanwar vs State And Ors
2021 Latest Caselaw 18390 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 1215/2015

Geeta Kanwar @ Uchchhab Kanwar Wd/o Late Shri Bhom Singh, aged about 51 years, R/o Village & Post Chalkoi Bani Rohtan, Tehsil & District Churu.

----Petitioner Versus

1. The State of Rajasthan through Secretary, Department of Home, Government of Rajasthan, Secretariat, Jaipur.

2. The Director General of Police, Head Quarter, Rajasthan Jaipur.

3. The Superintendent of Police, Churu

----Respondents

For Petitioner(s) : Mr. T.S. Rathore For Respondent(s) : Mr. Anil Bissa, AGC

HON'BLE MR. JUSTICE VIJAY BISHNOI

Judgment / Order

03/12/2021

The application (Inward No.01/21) preferred on behalf of the

petitioner for early listing of the writ petition is considered and

allowed.

With the consent of the parties, this writ petition is heard

finally today itself.

The petitioner has filed this writ petition claiming that her

husband Shri Bhom Singh was expired on 12.07.2013 while

working as Assistant Sub Inspector in the respondent department.

It is contended by the petitioner that she is having two daughters

namely Pinki Kanwar and Jyoti Kanwar and both of them are

married. It is further contended by the petitioner that as she is

widow and unable to perform service, therefore, she has

approached the respondent-department with a prayer to provide

(2 of 5) [CW-1215/2015]

compassionate appointment to her married daughter -Pinki

Kanwar on the post of LDC, however, the respondents have

rejected the said application vide order dated 20.12.2013.

Learned counsel for the petitioner has submitted that the

action of the respondents of not providing compassionate

appointment to the married daughter of the petitioner on account

of death of her husband is illegal.

Reply to the writ petition has been filed on behalf of the

respondents wherein it is contended that as per Rule 2(c) of the

Rajasthan Compassionate Appointment of Dependents of

Deceased Government Servants Rules, 1996 (hereinafter to be

referred as "the Rules of 1996"), married daughter of the

petitioner does not fall within the definition of a dependent,

therefore, such appointment could not be provided to her.

Learned counsel for the petitioner has argued that now the

State Government has amended Rule 2(c) of the Rules of 1996

vide Notification dated 28.10.2021, in which, the married

daughter is included in the definition of dependent. Learned

counsel for the petitioner, therefore, has submitted that in view of

the amended provisions of Rule 2(c) of the Rules of 1996, the

respondents are duty bound to provide compassionate

appointment to the married daughter of the petitioner.

Per contra learned counsel for the respondent has argued

that the matter regarding providing compassionate appointment

to the dependent of a deceased Government employee shall have

to be governed by the provisions of the Statutory Rules as they

prevailed at the time of death of the Government servant and

subsequent amendment in the definition of the dependent, which

(3 of 5) [CW-1215/2015]

includes married daughter of a deceased Government servant will

not govern the case of the petitioner.

Learned counsel for the petitioner has placed reliance on the

Division Bench's judgment of this Court passed in Nakul vs.

State of Rajasthan & Ors. (DB Civil Writ Petition

No.15912/2021), wherein, it is held that Rules prevailed at the

time of death of Government servant shall be applicable.

Heard learned counsel for the parties and perused the

material available on record.

It is not in dispute that at the time of death of petitioner's

husband in the definition of dependent under Rule 2(c) of the

Rules of 1996, married daughter of the Government servant was

not included, however later on, the State Government has

amended the definition of dependent as provided under Rule 2(c)

of the Rules of 1996 and included married daughter of a

Government servant in the said category. However, the Division

Bench of this Court, taking into consideration the said

amendment, has categorically held that only the Rules prevailed at

the time of death of a Government servant are to be applied. The

relevant portion of the Division Bench's judgment is reproduced

hereunder :-

"Learned counsel for the petitioner produced before us a notification dated 28.10.2021 issued by the State Government under which the said Clause (c) of Rule 2 of Rules of 1996 came to be substituted as under:-

"(c) "Dependent" means,-

(i) Spouse, or

(ii) son including son legally adopted by the deceased Government servant during his/her life time, or

(iii) unmarried/widowed/divorced daughter including daughter legally adopted by the deceased Government servant during his/her life time, or

(4 of 5) [CW-1215/2015]

(iv) married daughter, if no other dependent of the deceased Government servant mentioned in clause (ii)and (iii) above is available, or

(v) mother, father, unmarried brother or unmarried sister in case of unmarried deceased Government servant, who was wholly dependent on the deceased Government servant at the time of his/her death."

Learned counsel submitted that the original definition of "dependent" contained in Clause (c) of Rule 2 which do not include an unmarried brother or unmarried sister of the unmarried deceased Government servant was unconstitutional being arbitrary and violative of Article 14 of the Constitution. He supported his contention on the basis of the above noted notification dated 28.10.2021 in which, these categories of family members have been included within the definition of term "dependent". He contented that the State Government realizing the injustice being done to these family members, has now amended the Rules. Such amendment should be seen to be applicable to all pending cases.

It is held by the Supreme Court in series of judgments that compassionate appointment is in the nature of exception to the general principle of equality in public employment flowing from Articles 14 and 16 of the Constitution. In order to ensure that the dependents family members of a deceased Government servant who were left in penury on account of sudden death of an earning member while in service, are provided assistance, such scheme to the limited extent of making departure from principle of equality in public employment can be saved. In case of Life Insurance Corporation of India Vs. Asha Ramachandra Ambekar and others, AIR 1994 SC 2148, it was observed that the Court cannot direct compassionate appointment to be made contrary to the statutory instructions. Thus, the source of appointment by way of compassionate appointment is accepted by the Court, though it is in departure from the general principal of equality in public employment to the limited extent of scheme framed by the employer so recognizes it. The scheme which existed at the time when the Government servant expired, did not include unmarried brother or unmarried sister of an unmarried Government servant within the definition of "dependent" contained in Clause (c) of Rule 2.

There is nothing discriminatory in the nature of Rule itself. If the rule making authority at the relevant time provided within the purview of the definition of dependent a smaller class of members of the family of the deceased Government servant and excluded his/her

(5 of 5) [CW-1215/2015]

brothers or sisters, the same per se so cannot be said to be discriminatory.

It may be that subsequently the Government on its own, upon deliberations, thought of expanding the definition. That by itself does not mean that the definition in the original form was arbitrary or discriminatory. The case of the petitioner shall have to be governed by the provisions of the scheme for compassionate appointment contained in statutory Rules as they prevailed at the time of death of the Government servant."

In view of the law laid down by the Division Bench of this

Court in Nakul's case (supra), I do not find any merit in this writ

petition and the same is hereby dismissed.

(VIJAY BISHNOI),J

8-Arun/-

Powered by TCPDF (www.tcpdf.org)