Rajasthan High Court - Jodhpur

Ankit Gaur vs State And Ors on 17 March, 2023

Bench: Rekha Borana

[2022/RJJD/030444]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 10903/2016

Ankit Gaur S/o Shri Birdi Chand Gaur, aged about 25 years, Resident of Ward No.3, Nava Shahar, District Nagaur, Rajasthan.

----Petitioner Versus

1. The State of Rajasthan through Director, Medical & Health Services Rajasthan, Jaipur (Raj.)

2. Dy. Director (Admin), Medical and Health Services, Rajasthan Jaipur, Rajasthan

3. Chief Medical and Health Officer, Nagaur, Rajasthan

4. Senior Medical Officer, Incharge Community Health Centre, Nava Shahar, Nagaur, Rajasthan

----Respondents

For Petitioner(s) : Mr. Samuel Masih For Respondent(s) : Ms. Vandana Bhansali, AGC with Mr. Siddharth Mewara

HON'BLE MS. JUSTICE REKHA BORANA Order 17/03/2023

The present writ petition has been filed against the order

dated 30.05.2016 whereby an application of the petitioner for

compassionate appointment has been rejected. The reason for

rejection is that the brother of the deceased employee does not

fall within the definition of 'dependent' as defined under Section

2(c) of the Rajasthan Compassionate Appointment of Dependents

of Deceased Government Servants Rules, 1996 (hereinafter

referred to as 'the Rules of 1996').

The case of the petitioner is that his brother Dr. Nitesh Gaur

met with an accident and unfortunately, expired. The family

comprises of his mother, father and the present petitioner being

the younger brother of the deceased employee. The deceased

was not married and hence his parents as well as his younger

brother were totally dependent on the deceased employee. It has

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further been submitted that the mother of the deceased is

suffering from cancer and the present petitioner, that is, his

younger brother, is an unemployed student. Therefore, there

being no bread earner in the family after the death of the

employee, the petitioner, who was totally dependent on the

deceased employee at the time of his death and being the only

person available in the family to support and take care of his

parents, deserves to be granted compassionate appointment.

Before entering into the adjudication on the issue whether an

unemployed brother can be termed to be a dependent of an

unmarried deceased Government servant, it is relevant to note

that the State Government has, vide notification dated

28.10.2021, amended clause (c) of Rule 2 of Rules of 1996 and

has now included mother, father, unmarried brother and

unmarried sister also in the definition of "Dependent" in case of

unmarried deceased Government servant.

The issue whether a brother of the unmarried deceased

Government employee would be entitled for compassionate

appointment or not has been raised and dealt with in past too and

the specific opinion of the Courts had been that "Family" would

necessarily include father, mother, unmarried brother and

unmarried sister in the case of an unmarried deceased

Government servant. On the said logic, the brother of the

unmarried deceased Government servant has been held to be

entitled for compassionate appointment subject to the condition

that he was totally dependent on the deceased Government

servant at the time of his death.

[2022/RJJD/030444] (3 of 6) [CW-10903/2016]

In Jaswant Singh Vs. The State of Rajasthan and

Others reported in 1993 (3) WLC 695 also, the person applying

for compassionate appointment was the brother of the deceased

Government servant. In the said matter, while relying upon

Herald Hemalton's case, the Court observed as under:

"The petitioner is a commerce graduate and under the Rules of 1975, he is entitled to be appointed as a dependent of the deceased Government employee commensurating with the qualification held by him on a post for which he is found suitable. Accordingly, the communications Annexure 7 dated 21.4.1990 and Annx. 9 dated Nil, No. F4(3) vivid/90/Mu-Aa-Sin./Stha- 3/2696, are quashed and the respondents are directed to consider the case of the petitioner under the Rules of 1975 and give him a suitable appointment commensurating with his qualification under the Rules."

Similar situation arose in Rajiv Gupta Vs. State of

Rajasthan (S.B. Civil Writ Petition No.5928/2004) decided

on 26.07.2006 and the Court in the said case observed as under:

"......that there is no specific bar for not giving appointment to the brother of dependent who was given appointment under the dependent quota in place of his deceased father and after the death of said brother within short span of 5 months of the service, the family reached to the worst financial condition. The aim and object of the Rules of 1996 is not to give temporary relief for short duration but the same is one of the regular benefit given to the family of the deceased Government servant. The present petitioner was initially also eligible for appointment but the mother of the petitioner consented for his elder brother and the death is such kind of misfortune which can never be foreseen. Therefore, the present case requires

[2022/RJJD/030444] (4 of 6) [CW-10903/2016]

sympathetic consideration. Accordingly, the writ petition is allowed."

In view of ratio as laid down in the above judgments, it is

clear that the main object behind the Rules of 1996 is to consider

the dependency of the deceased employee, to take care of the

dependents of the deceased employee and to save them from

financial crisis. Admittedly, in the present case, the only surviving

members of the family of the deceased are his father, mother and

unmarried brother. It is also clear on record that none of them is

employed and were totally dependent on the deceased at the time

of his death. Moreover, the mother of the deceased is suffering

from the cancer and the present petitioner, that is, the younger

brother, was an unemployed student. Therefore, the present

petitioner definitely fall in the category of "dependent" may be not

in strict sense but definitely in broader perspective and by virtue

of the precedents on the issue. Further, keeping in consideration

the fact that the State Government itself has now included

'unmarried brother' in the definition of the 'dependents' of an

unmarried deceased Government servant, the fact that the

application was preferred by the petitioner soon after the death of

the employee in the year 2016 and the fact that soon after the

rejection of the application, the present writ petition was preferred

before this Court and remained pending till date, the matter

definitely requires reconsideration by the respondent-authorities.

Regarding the question whether the amended provision of

Rule 2(c) of the Rules of 1996 would apply to the present matter,

reliance on the Full Court judgment of this Court in the case of

[2022/RJJD/030444] (5 of 6) [CW-10903/2016]

Priyanka Shrimali vs. State of Rajasthan & Ors.; 2022 (4)

DNJ (Raj) 1467 can be made.

In Priyanka Shrimali's case (supra), while striking down the

word 'unmarried' from the definition of 'dependent' qua a

daughter, the Court proceeded on to discuss the issue whether the

same would apply to the concluded cases or not and observed as

under:

"So far as apprehensions expressed by the learned counsel for the respondent-State and certain other counsel regarding the consequence of striking down of the word 'unmarried' are concerned, the same are apparently misplaced, inasmuch as, merely on account of quashing of the said word 'unmarried' from the definition, by itself cannot revive the concluded cases wherein the appointments have already been accorded in terms of the existing provisions. Further even after, quashing of the word 'unmarried' from the definition, the same would apply to the pending cases only as the likely applicants, qua whom the cause of action had arisen long back even otherwise would not be eligible, in view of repeated pronouncements of Hon'ble Supreme Court regarding the purpose of grant of compassionate appointments i.e. for the purpose of tiding over the immediate requirement, which arises on account of death of the government servant while in service. In cases where the government servant has died long back, the striking down of the word from the definition, by itself would not provide any fresh cause of action to any of the applicants and, therefore, the apprehension expressed, has no basis."

The Court finally concluded as under:

"As a consequence, it is directed that on account of striking down of the word 'unmarried' from the definition - (i) the same shall not effect any case, wherein compassionate appointment has already been granted under the provisions as they stood before this order; (ii) the same by itself would not provide a cause of action to any applicant and would apply to cases which are either pending before the competent authority and/or to the cases where litigation is pending on the date of this order only; (iii) the provisions and other requirements of the definition regarding the applicant being wholly dependent on the deceased government servant at the time of his/her death would be scrupulously applied; (iv) all the parameters as laid down by Hon'ble Supreme Court for

[2022/RJJD/030444] (6 of 6) [CW-10903/2016]

grant of compassionate appointment, shall also be scrupulously followed and that (v) all other provisions of the Rules except the inclusion of the 'married daughter' in the definition of 'dependent', shall have full application."

A bare perusal of the above judgment makes it clear that the

effect of striking down of the word was directed to be applied to

cases which were either pending before the competent authority

and/or to the cases where litigation was pending on the date of

the order. In the present case, the application for compassionate

appointment was preferred by the petitioner soon after death of

the employee in the year 2016 and soon after rejection of the

application, the present writ petition was preferred before this

Court which remained pending till date. Therefore also, the

matter requires consideration by the respondent-authorities.

In view of above observations, the present writ petition is

allowed. The respondents-authorities are directed to consider

the application of the petitioner and grant him compassionate

appointment, if otherwise found legally entitled. Appropriate

action be taken within a period of four weeks from the date of the

receipt of the present order.