Rajasthan High Court - Jodhpur
Chagan Lal Nenama vs State And Ors on 4 March, 2021
Bench: Dinesh Mehta
HIGH COURT OF JUDICATURE FOR RAJASTHAN
JODHPUR
S.B. Civil Writ Petition No. 7061/2017
Chagan Lal Nenama
----Petitioner
Versus
State And Ors
----Respondent
For Petitioner(s) : Mr. DR Kawadiya
Mr. Prakash Bhati
For Respondent(s) : Mr. SR Paliwal
JUSTICE DINESH MEHTA
Order
04/03/2021
IA NO.1/2021:
1. The petitioner has moved the present application seeking
disposal of the writ petition in the light of judgment dated
3.2.2014, rendered in the case of Gyan Chand Vs. State of
Rajasthan & Ors. (SBCWP No.1697/2013).
2. In the case of Gyan Chand (supra), the coordinate Bench
held thus:
"After hearing learned counsel for the parties, I am of
the opinion that the denial of the petitioner for appointment
under the Rules of 1996 is not justified because the purpose
of providing appointment is to provide financial aid to the
family of the deceased employee but herein this case, the
denial of the appointment is totally unreasonable, therefore,
it is a fit case in which the direction is required to be given to
the respondents to consider the case of the petitioner for
providing appointment under the rules.
Consequently, the writ petition is allowed and the
impugned order dated 30.08.2012 is hereby quashed and set
aside with the direction to the respondents to re-consider the
case of the petitioner for providing appointment on
compassionate ground strictly in accordance with law,
ignoring the fact that the petitioner is having more than two
children because the Rules of 1996 are having over-riding
effect and special relaxation has been granted to the family
(2 of 3) [CW-7061/2017]
of the deceased employee. It is expected from the
respondents that the case of the petitioner will be re-
considered within one month and appropriate order will be
issued within time.
3. A perusal of the judgment shows that Rule 7(1) of the
Rajasthan Compassionate Appointment of Dependents of
Deceased Government Servant Rules, 1996 (hereinafter referred
to as 'the Rules of 1996') was not brought to the notice of the
Court, for which the Court came to the conclusion that a person
having more than two children, is also entitled for appointment
under Rules of 1996.
4. Sub-Rule (1) of Rule 7 of the Rules of 1996, reads thus:
"7. Qualifications:
(1) The dependent should possess the qualification
prescribed for the post under the concerned service
rules at the time of appointment."
5. It is to be noted that there is clear embargo on appointment
of a person having a 3rd child after 1.6.2002 in Rule 21 of
Rajasthan Social Welfare Service Rules, 1963/Rajasthan Social
Welfare Subordinate Service Rules, 1963. Rule 21 of the Rules
reads thus:
"Rule 21(3) - No candidate shall be eligible for
appointment to the service who has more than two
children on or after 1.6.2002."
6. Rule 21 has an effect of providing an inherent ineligibility,
while Rules of 1996 confer a right upon a dependent to seek
appointment on compassionate grounds. The substantive rules
namely, Rules of 1963 under which service is to be given,
considers the petitioner having more than 2 children after
1.6.2002, as ineligible.
7. As Rule 7(1) of the Rules of 1996 provides that the
dependent should possess the qualification prescribed for the post,
(3 of 3) [CW-7061/2017]
in the opinion of this Court, a candidate who incurs any ineligibility
under the relevant rules, including the one consequent to birth of
third child, cannot be considered for appointment.
8. The judgment dated 3.2.2014 rendered in the case of Gyan
Chand Vs. State of Rajasthan & Ors., which has been passed
without considering Rule 7(1) of the Rules of 1996 requires a re-
look or consideration by a Larger Bench.
9. The Registrar (Judl.) is thus, directed to place the matter
before Hon'ble the Chief Justice for constituting a Larger Bench to
decide the following questions:
"(i) Whether expression 'qualification' used in Rule
7(1) of the Rajasthan Compassionate Appointment of
Dependents of Deceased Government Servant Rules,
1996 is meant to cover a candidate's educational
qualification only?
(ii) If answer to question No.(i) above is negative,
then, in the face of Rule 7(1) of the Rajasthan
Compassionate Appointment of Dependents of
Deceased Government Servant Rules, 1996, whether a
dependent having more than two children after the cut
off date is eligible to be appointed?"
(DINESH MEHTA),J
79-CPGoyal/-
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