Lalita Devi vs State Of Rajasthan
2021 Latest Caselaw 17567 Raj

       HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                        JODHPUR
                 D.B. Spl. Appl. Writ No. 1392/2019

Lalita Devi W/o Roshan Lal, Aged About 32 Years, B/c Saini, R/o
34 Rd Padampura Tehsil Suratgarh District Sriganganagar.
                                                                        ----Appellant
                                    Versus
1.       State Of Rajasthan, Through The Secretary, Department
         Of Forest, Secretariat, Rajasthan, Jaipur.
2.       The Divisional Chief Conservator Of Forest, Bikaner Raj.
3.       The Dy. Conservator Of Forest, District Sri Ganganagar
         Raj.
4.       Sunil Kumar S/o Shri Roshan Lal, R/o 34 Rd 5 Sd Tehsil
         Suratgarh    District     Sri    Ganganagar             Raj.    At   Present
         Residing    At   Village      27     Ntr,     Tehsil      Nohar,     District
         Hanumangarh Raj.
                                                                  ----Respondents


For Appellant(s)          :      Dr. R.D.S.S. Kharila
For Respondent(s)         :      Mr. Sandeep Shah, AAG with
                                 Ms. Pritushi Mehta
                                 Mr. H.S. Sidhu



             HON'BLE MR. JUSTICE VIJAY BISHNOI
         HON'BLE MR. JUSTICE ANOOP KUMAR DHAND

                                     Order

Date of pronouncement : 24/11/2021

Judgment reserved on :            18/11/2021

BY THE COURT : PER HON'BLE ANOOP KUMAR DHAND, J.

The instant Special Appeal (Writ) has been directed against

the orders dated 15.11.2017 and 17.07.2018 passed by the

learned Single Judge in S.B. Civil Writ Petition No.14442/2017

(Sunil Kumar Vs. State of Rajasthan & Ors.), by which, directions

have been issued to accord provisional compassionate

(2 of 18) [SAW-1392/2019]

appointment to the respondent No.4 and for considering the case

of the respondent No.4 and children of deceased employee for

grant of family pension/gratuity/retiral benefits.

Brief facts of the case leading to filing of Special Appeal

(Writ) are as follows:-

(i) Roshan Lal husband of the appellant Lalita Devi and father of

the respondent No.4 Sunil Kumar died on 06.08.2017 while

working on the post of Forest Guard.

(ii) Roshan Lal got married to Sita Devi and out of this wedlock,

Sunil Kumar (respondent No.4) and his sister Deepika were born.

Sita Devi expired on 25.05.2005 and after her death, on

16.04.2007, Roshan Lal solemnized second marriage with the

appellant Lalita Devi. Out of this second wedlock, a son Khem

Chand was born. It is an admitted case that leaving behind five

members in the family, Roshan Lal passed away on 12.07.2017.

(iii) On 21.07.2017, respondent No.4 Sunil Kumar lodged a report

against the appellant Lalita Devi at the Police Station Suratgarh,

District Sri Ganganagar with an allegation that on the fateful day

i.e. 12.07.2017, at about 7:00 p.m. his step mother Lalita Devi

(appellant herein) poured petrol on his father with an intention to

kill him. He further alleged that his step mother used to quarrel

with his father for want of money and property.

(iv) Upon the aforesaid report, an FIR No.175/2017 was registered

at the Police Station Suratgarh, District Sri Ganganagar for the

offence under Section 307 IPC. During the course of investigation,

Roshan Lal expired on 06.08.2017 and the offence under Section

302 IPC was added. Thereafter, the appellant was arrested and

chargesheeted for the above offences before the competent court

of law.

(3 of 18) [SAW-1392/2019]

(v) On 14.09.2017, respondent No.4 Sunil Kumar submitted an

application in the prescribed format before the respondents for

granting him compassionate appointment under the provisions of

Rajasthan Compassionate Appointment of Dependents of

Deceased Government Rules, 1996 (hereinafter referred as "the

Rules of 1996") without disclosing the name of the appellant (his

step mother) as dependent of the deceased Roshan Lal. However,

the name of Khem Chand (step brother of respondent No.4 Sunil

Kumar), was mentioned in the said application.

(vi) The respondents neither offered appointment to the

respondent Sunil Kumar in absence of the consent of the

appellant, nor released the pension, gratuity and other retiral

benefits of the deceased to the family. Hence, the respondent

No.4 Sunil Kumar filed S.B. Civil Writ Petition No.14442/2017

without impleading the appellant as party-respondent to the writ

petition. The following prayers were made in the said writ petition,

which are reproduced as under:-

"a. The respondents may kindly be directed to consider the application of the petitioner to provide him compassionate appointment as per the rule 1996 and provide him appointment on the suitable post according to his qualification, with all consequential benefits.

b. That the respondents may kindly be directed to extent the retiral benefits of his father to the petitioner including the family pension as per the Provision of the Pension Rules 1996."

                                           (4 of 18)                   [SAW-1392/2019]



(vii) On 15.11.2017,        while issuing notices,                the learned Single

Judge passed the following order :-

"Issue notice. Issue notice of the stay application also. Both the notices be made returnable within six weeks.

In the meanwhile, petitioner's candidature may be provisionally considered for according appointment on compassionate ground under the provisions of the Rajasthan Compassionate Appointment of Dependents of Deceased Government Servants Rules, 1996, without insisting for consent /'No objection' from his step-mother namely Lalita, who is said to be imprisoned on the allegation of murder of her husband (father of the petitioner)."

(viii) In compliance of the aforesaid interim order, on 22.05.2018,

an appointment was offered to Sunil Kumar (petitioner in the writ

petition and respondent No.4 herein) provisionally subject to the

decision of the writ petition. On 17.07.2018, the writ petition was

disposed of with a direction to the respondents to consider the

case of the petitioner (respondent No.4 Sunil Kumar) and the

children of the deceased employee for family

pension/gratuity/retiral benefits strictly in accordance with the

Pension Rules, 1996 within a period of 60 days.

Feeling aggrieved by the interim order dated 15.11.2017 and

the final order dated 17.07.2018, passed by the learned Single

Judge, the appellant submitted an application seeking leave to file

Special Appeal along with an application under Section 5 of the

Limitation Act for condoning the delay of 381 days in filing the

Special Appeal.

(5 of 18) [SAW-1392/2019]

This Court vide order dated 18.02.2020 while accepting both

applications, granted leave to file an appeal and condoned the

delay of 381 days in filing the Special Appeal.

Learned counsel for the appellant submitted that after trial,

the appellant has been acquitted from the charge under Section

302 IPC by the court of learned Additional Sessions Judge,

Suratgarh, District Sri Ganganagar by giving benefit of doubt to

her. He further submitted that during her judicial custody, she filed

an application on 04.07.2018 before the authorities/respondents

for grant of appointment to her minor son Khem Chand (after

attaining the age of majority) and for grant of other retiral

benefits to her and not to others. It is further argued that without

impleading her as a necessary party in the writ petition, the

impugned orders dated 15.11.2017 and 17.07.2018 have been

passed and she and her son Khem Chand have been deprived

from getting compassionate appointment and other service

benefits of her deceased husband.

Learned counsel further argued that the above impugned

orders as well as the provisional appointment order dated

22.05.2018 offered to respondent No.4 Sunil Kumar have been

passed in violation of principles of natural justice as no

opportunity of hearing was ever offered to her.

Per contra, the learned Additional Advocate General as well

as learned counsel for the respondent No.4 opposed the

submissions advanced by learned counsel representing the

appellant.

Learned Additional Advocate General submitted that only

provisional appointment has been given to the respondent No.4

subject to the decision of the writ petition and while deciding the

(6 of 18) [SAW-1392/2019]

writ petition, learned Single Judge has not passed any final order

for confirmation of the above provisional appointment offered to

the respondent No.4 Sunil Kumar. He further submitted that on

04.07.2018, the appellant submitted an application for offering

appointment to her son Khem Chand (after attaining the age of

majority) and for getting other service benefits. The said

application was submitted after grave delay of almost one year,

hence she is not entitled to get any benefits of the deceased

employee and in alternative, he requested for remanding the

matter back to pass a fresh order after providing an opportunity of

hearing to both the parties.

Learned counsel Shri H.S. Sidhu, representing the

respondent No.4 submitted that appellant is not a legally wedded

wife of the deceased Roshan Lal, therefore, her consent was not

required under Rule 10 of the Rules of 1996. It was further

contended that as the appellant was charged for the murder of her

husband, therefore, she is not entitled to claim appointment and

other service benefits of the deceased Roshan Lal. In support of

his contention, he relied upon Para No.13 of the judgment

delivered in the case of Shaila Khan (Miss) Vs. State of

Rajasthan & Ors. reported in 2011 (4) RLW 3557, which is

reproduced as under:-

"The father of the petitioner being convicted for a criminal charge is not eligible to be considered for appointment under the Rules of 1996. As such, the right for appointment under the Rules of 1996 does not survive for him. The petitioner, therefore, rightly claimed appointment by submitting an application as per sub-rule (2) of Rule 10 of the Rules of 1996. The respondents

(7 of 18) [SAW-1392/2019]

being aware of the fact about conviction of the husband of deceased government servant cannot insist upon the petitioner to get the application moved through her father. On coming down from the status of surviving spouse, father of the petitioner may have a right to tender consent for appointment to the petitioner, but that too is not available to him in present set of facts. An appointment under the Rules of 1996 is suppose to be given to a dependent by keeping in view overall interest and welfare of entire family (Rule 10(2)), but father of the petitioner acted absolutely against the interest and welfare of the entire family, therefore, he is not a person whose interest is to be watched. He is not a person who can claim any protection as available to other dependents as per sub-rule (2) of Rule 5 of the Rules of 1996. As such, no consent as per Rule 10(2) of the rules of 1996 is required to be obtained from him. Such a right can be available to a victim of circumstances, but certainly not to an accused for creating the unfortunate circumstances."

Heard learned counsel for the appellant as well learned

Additional Advocate General for the State as well as learned

counsel for the respondent No.4 and perused the material

available on record.

As per Rule 5 of the Rules of 1996, on death of a

government servant while in service, one of his/her dependent (s)

may be considered for appointment. Sub Rule (1) of Rule 10 of

the Rules of 1996, provides that on death of a government

servant, the surviving spouse shall apply for appointment for self

or for any other dependent.

(8 of 18) [SAW-1392/2019]

In view of sub-rule (1) of Rule10 of the Rules of 1996, the

aforesaid right to claim appointment rests with the surviving

spouse of the deceased government servant. However, as per sub-

rule (2) of the Rule 10 of the Rules of 1996 where the deceased

government servant is not survived by a spouse, the application

shall be made by one of the dependents of the deceased

government servant and the other dependents shall have to give

their consent for his/her candidature. Provided that if more than

one of the dependents seek employment, the Head of Department

shall select one, keeping in view the overall interest and welfare of

the entire family, particularly the minor members.

In the case at hand, the appellant is a surviving spouse and

as per sub-rule (1) of Rule 10 of the Rules of 1996, she has

submitted an application for appointment of her minor son Khem

Chand on attaining the age of majority and she has requested for

payment of other service benefits to her.

The counsel for the respondent No.4 has made a contrary

argument about the status of the appellant by opposing this

appeal, he argued that appellant is not a legally wedded wife of

the deceased Roshan Lal while in Para No.4 of the writ petition the

respondent No.4 admitted that his father got married to Sita Devi

and out of the said wedlock he and his sister Deepika were born.

His mother Sita Devi expired on 25.05.2005, leaving behind her

two children (Sunil Kumar-respondent No.4 and his sister

Deepika) and after death of Sita Devi, his father solemnized

second marriage with Lalita Devi (the appellant) on 16.04.2007

and from this wedlock, a son (Khem Chand) was born. Hence, the

(9 of 18) [SAW-1392/2019]

respondent No.4 cannot go beyond his own admission as made in

Para No.4 of the writ petition about the status of the appellant.

It is further argued on behalf of the respondent No.4 that the

appellant has faced criminal charge for committing murder of her

husband therefore, she is not eligible for getting appointment on

compassionate ground under the Rules of 1996. Hence, her right

for appointment did not survive therefore, consent regarding grant

of appointment to respondent No.4 obtained from the appellant is

not necessary.

On perusal of the impugned judgment dated 20.04.2019

passed by the learned Additional Sessions Judge, Suratgarh,

District Sri Ganganagar, it reveals that appellant was acquitted

from the charge under Section 302 of the IPC as the prosecution

failed to prove the allegations against the appellant for pouring

petrol on her husband Roshan Lal and for attempt to kill him by

her. Hence, the judgment of Shaila Khan (Supra) does not help

the contentions raised by the counsel for the respondent No.4

that the appellant is not entitled to get appointment because in

the case of Shaila Khan (Supra), there was conviction but here in

this case at hand, the appellant has been acquitted.

While passing the impugned interim order dated 15.11.2017,

the learned Single Judge granted final relief to the respondent

No.4 by observing that the candidature of the respondent No.4

may be provisionally considered for according appointment on

compassionate ground under the provision of the Rules of 1996

without insisting for consent/no objection from his step mother

(Lalita Devi), who is said to be imprisoned on the allegation of

murdering her husband. On the basis of said interim order, the

(10 of 18) [SAW-1392/2019]

respondents have given provisional appointment to the

respondent No.4 on the post of Forest Guard on 22.05.2018

subject to decision of the writ petition. The said order was passed

without giving any notice or opportunity of hearing to the

appellant.

The aforesaid provisional appointment order dated

22.05.2018 has not been made absolute or confirmed by the

learned Single Judge while deciding the writ petition vide order

dated 17.07.2018 but while deciding the writ petition, again ex-

parte directions were issued to the respondents to consider the

case of the respondent No.4 and the children of the deceased

Roshan Lal for family pension/gratuity/retiral benefits strictly in

accordance with the Pension Rules, 1996 within a period of sixty

days. This final order was also passed in absence of the appellant

without granting any opportunity of hearing to her.

Rule 5 of the Rules of 1996 deals with the provision of

compassionate appointment and according to this Rule, if a

Government servant dies while in service, one of his/her

dependents may be considered for appointment in Government

service.

Rule 2 (c) of the Rules of 1996 defines the word "dependent"

which means that spouse, son/unmarried daughter/widowed

daughter/adopted son/adopted unmarried daughter.

Rule 10 of the Rules of 1996 deals with the procedure for

grant of compassionate appointment and the same is reproduced

as under :-

Rule - 10. Procedure :-

                                   (11 of 18)                    [SAW-1392/2019]

(1)      On the death of a Government servant the surviving

spouse shall apply for appointment for self or for any other dependant.

(2) Where the deceased Government servant is not survived by a spouse the application shall be made by one of the dependants of the deceased Government servant and other dependants shall have to give their consent for his/her candidature. Provided that if more than one of the dependants seek employment, the Head of Department shall select one, keeping in view the overall interest and welfare of the entire family, particularly the minor members.

(3) Such application shall be made to the Head of the Office/Department in the Performa attached as Annexure-A to these rules, within a period of 90 days from the date of death of the Government servant. The applicant shall submit an affidavit in support of monthly income (from all sources) of all the family members mentioned in Column No.7 of part-I of the application.

Provided that in an exceptional case where the state Government in the Department of Personnel is satisfied that the operation of provisions of this sub-rule causes financial hardship to the family of the deceased Government servant and considers it necessary or expedient to relax the provisions of this sub-rule to such extent and subject to such conditions as it may consider necessary for dealing with the case in a just and equitable manner.

(4) In cases of All India Services, Rajasthan Administrative Service, Rajasthan Accounts Service, Rajasthan Legal State and Subordinate Service and the Rajasthan Economics & Statistical Service etc. where officers are posted in different departments of Government, the application shall be made to the Administrative Department controlling that service through the Head of Department/ Head of Office where the deceased Government servant was posted at the time of his/her death.

(5) It shall be the responsibility of the Head of the Department/Head of the Office, as the case may be, to give

(12 of 18) [SAW-1392/2019]

appointment to the dependants as far as possible in his own department.

(6) In case suitable post is not vacant but some post in lower scale is available immediately, such lower post can be offered to the applicant on first come first serve basis and the applicant shall have the option either to wait for the post applied for or to accepts the lower available post. In case the applicant accepts the lower available post, he/she shall lose his/her claim for higher post applied for and his/her claim will not be kept on waiting list. Provided that if there is no vacant post available in the department in which the deceased Government servant was working then the matter shall be referred to DOP immediately duly support by cogent reasons and DOP shall provide appointment in some other department.

Substituted for "Such application shall be made in the performa attached as Annexure-A to the Head of the Office/ Department within a period of three months from the date of death of the Government servant. The applicant shall submit an affidavit in support of monthly income (from all sources) of the entire family members mentioned in Column No.7 of the prescribed application. Provided that where the spouse does not seek appointment for herself/himself and even the eldest of remaining dependants has not attained the age of 18 years (intimation to this effect to be given in writing within three months of the death of the Government servant), the above period of limitation shall run from the date of attaining the age of 18 years by such eldest dependant.

In cases of death of members of the services having State cadre like All India Services, Rajasthan Administrative Service, Rajasthan Secretariat Service, controlled by Department of Personnel, the application shall lie to the Secretary, Department of Personnel and it shall be the responsibility of Department of Personnel to arrange for a suitable post.

(13 of 18) [SAW-1392/2019]

Perusal of Rule 10(1) of the Rules of 1996 clearly indicates

that on death of a Government servant the surviving spouse can

apply for appointment for self or for any other dependent.

Sub-rule (2) of Rule 10 of the Rules of 1996 mentions that

when the spouse is not survived then the other dependent shall

submit an application with the consent of other dependents for

his/her candidature and if there are more dependents seeking

employment, then the Head of Department shall select one,

keeping in view the overall interest and welfare of the entire

family, particularly the minor members.

In the case at hand, the appellant is alive, and she is the

spouse of the deceased Roshan Lal and her consent was not taken

as per the mandate of Rule 10 of the Rules of 1996 and there is

no such disqualification under the Rules of 1996 that when a

person, who has faced prosecution for any criminal charge and

acquitted, cannot claim compassionate appointment.

Rule 73 of the Rajasthan Civil Services (Pension) Rules, 1996

deals with the provision for suspension of family pension if the

respondent is charged for the offence of murdering the

Government servant. Rule 73 of the Pension Rules, 1996 is

reproduced as under:-

73. Suspension of family pension if the recipient is charged with the offence of murdering the Government servant, etc. -

(a) If a person, who in the event of death of a Government servant while in service, is eligible to receive family pension under this rule, is charged with the offence of murdering the Government servant or for abetting in the commission of such an offense, the claim of

(14 of 18) [SAW-1392/2019]

such a person, including other eligible member or members of the family to receive the family pension, shall remain suspended till the conclusion of the criminal proceedings instituted against him.

(b) If on the conclusion of the criminal proceedings referred to in clause (a), the person concerned -

(i) is convicted for the murder or abetting in the murder of the Government servant, such a person shall be debarred from receiving the family pension which shall be payable to other eligible member of the family, from the date of death of the Government servant,

(ii) is acquitted of the charge of murder or abetting in the murder of the Government servant, the family pension shall be payable to such a person from the date of death of the Government servant.

(c) The provisions of clause (a) and clause (b) shall also apply to the family pension becoming payable on the death of a Government servant after his retirement.

Rule 73 (b) (ii) says that if on the conclusion of the criminal

proceedings referred to in Clause (a), the person concerned is

acquitted of the charge of murder or for abetting in commission of

such offence, the family pension shall be payable to such person

from the date of death of the Government servant.

As per the facts and documents available on record, it is

clear that the appellant has not been convicted rather she has

been acquitted from the charge of murdering of her husband.

(15 of 18) [SAW-1392/2019]

While deciding the writ petition finally, the learned Single

Judge has quoted certain provisions of the Pension Rules, 1996

i.e. Rules 70, 55 (iv), 56 (B) and Rule 67 (B) and (c). These

relevant rules are quoted as under:-

"70. Family pension to be given to the eldest eligible child Where a deceased Government servant or pensioner leaves behind more children than one, the eldest eligible child shall be entitled to the family pension for the period mentioned in clause (b) or clause (c) of rule 67, as the case may be, and after the expiry of that period the next child shall become eligible for the grant of family pension.

67. Condition of grant The family pension shall be admissible to - "(b) unmarried son till he attains the age of twenty five years or on earning a monthly income exceeding Rs.2550/-.

(c) daughter including widowed/divorced daughter till she attains the age of 25 years or on earning a monthly income exceeding Rs.2550/- per month or upto the date of her marriage/re-marriage, whichever is earlier.

56. Persons to whom gratuity is payable (1) .............................................................. ]

(b) If there is no such nomination or if there is no such nomination or if the nomination made does not subsist, the gratuity shall be paid in the manner indicated below-

(i) if there are one or more surviving members of the family as in clause (i), (ii), (iii) and (iv) of sub rule (4) of rule 55, to all such members in equal shares; (ii) if there are no such surviving members of the family as in sub clause (i) above, but there are one or more members as in clauses (v), (vi),

(16 of 18) [SAW-1392/2019]

(vii), (viii), (ix), (x) and (xi) of sub rule (4) of rule 55 to all such members in equal shares.

55. Retirement/Death Gratuity (4) For the purpose of this rule and rules 56, 58 and 59 'family' in relation to a Government servant, means -

(i) wife or wives including judicially separated wife or wives in the case of a male Government servant,

1. The existing figures and words "2.5. lacs rupees"

           substituted             vide              FD           Notification
           No.F.15(3)FD(Rules)/97             dated        21.3.98      w.e.f.
           1.1.1997.70

(ii) husband, including judicially separated husband in the case of a female Government servant,

(iii) sons including stepsons and adopted sons,

(iv) unmarried daughters including step daughters and adopted daughters,

(v) widowed daughters including step daughters and adopted daughters,

(vi) father, including adoptive parents in the case of individuals whose personal law

(vii) mother, permits adoption,

(viii) brothers below the age of eighteen years including step brothers,

(ix) unmarried sisters & widowed sisters including step sisters,

(x) married daughters, and

(xi) children of a predeceased son"

On the basis of the above Rules, the learned Single Judge

disposed of the writ petition vide impugned order dated

17.07.2018 and directed the said respondents to consider the case

of the respondent No.4 and children of the deceased employee for

family pension/gratuity/retiral benefits strictly in accordance with

the Pension Rules, 1996 within a period of sixty days.

(17 of 18) [SAW-1392/2019]

The impugned orders dated 15.11.2017 and 17.07.2018

have been passed in the writ petition filed by the respondent No.4

without impleading the appellant, who is spouse of the deceased

Roshan Lal and the directions have been issued for compassionate

ground of the respondent No.4 and payment of family

pension/gratuity/retiral benefits to the children of the deceased

employee without giving any notice or opportunity of hearing to

the appellant.

Thus, the impugned orders dated 15.11.2017 and

17.07.2018 have been passed in violation of the principles of

natural justice and the same are liable to be quashed and set

aside. Since the provisional appointment dated 22.05.2018 was

passed on the basis of the interim order dated 15.11.2017, the

same is not liable to be sustained.

In view of the above discussion made hereinabove, the

Special Appeal is partly allowed. The respondents are directed to

decide the claim of the appellant Lalita Devi as well as the claim of

the respondent No.4 Sunil Kumar and claim (if any) of any other

dependent(s) of the deceased Roshan Lal for grant of

compassionate appointment strictly in accordance with the

provisions of Rules of 1996, keeping in view the overall interest

and welfare of the entire family. The respondents are further

directed to consider and decide the case of the appellant,

respondent No.4 and other children of the deceased employee for

family pension/gratuity/retiral benefits strictly in accordance with

the provisions contained under the Pension Rules, 1996 positively

on or before 31.01.2022. Till 31.01.2022, the provisional

(18 of 18) [SAW-1392/2019]

appointment of respondent No.4 dated 22.05.2018 shall remain in

currency.

With the above observations and directions, the Special

Appeal is partly allowed. All the pending applications are disposed

of. There shall be no order as costs.

(ANOOP KUMAR DHAND),J (VIJAY BISHNOI),J

26-Mamta/-

Powered by TCPDF (www.tcpdf.org)