Nakul vs The State Of Rajasthan
2021 Latest Caselaw 17799 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Civil Writ Petition No. 15912/2021

Nakul S/o Late Sh. Hari Kishan, Aged About 20 Years, By Caste Jangid, Resident Of Near Aravali Van Vibhag, Opposite To Stadium, Nagaur (Raj.)

----Petitioner Versus

1. The State Of Rajasthan, Through The Principal Secretary To The Government, Department Of Elementary Education, Government Of Rajasthan, Secretariat, Jaipur

2. Director, Elementary Education, Rajasthan-Bikaner.

3. District Education Officer, Elementary Education, Nagaur

----Respondents

For Petitioner(s) : Mr. Harish Kumar Purohit.

For Respondent(s) : ---

HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI HON'BLE MR. JUSTICE SUDESH BANSAL

Order

26/11/2021

This petition is filed by the brother of the Government

servant one Miss Mona. She expired while in service on 5 th April,

2021 in a road accident. At the time of her unfortunate demise,

she was serving as a Senior Teacher in a Government school. The

petitioner claiming to be the dependent of the Government

servant, applied for appointment on compassionate ground. This

application was rejected by the Government by an order dated

24.08.2021 on the ground that the petitioner does not come

within the definition of "dependent" as contained in Clause (c) of

Rule 2 of the Rajasthan Compassionate Appointment of

Dependents of Deceased Government Servant Rules, 1996. He has

(2 of 4) [CW-15912/2021]

thereupon filed this petition challenging the said decision of the

Government authority as well as the vires of Rule 2(c) of the said

Rules of 1996.

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

(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.

(3 of 4) [CW-15912/2021]

It is held by the Supreme Court in series of judgments that

compassionate appointment is in the nature of exeption 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 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

(4 of 4) [CW-15912/2021]

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 the result, the petition is dismissed.

                                   (SUDESH BANSAL),J                                        (AKIL KURESHI),CJ
                                   1-jayesh/-









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