Rajasthan High Court - Jodhpur

Surya Veer Singh vs State Of Rajasthan And Ors. ... on 15 September, 2023

Bench: Dinesh Mehta

[2023:RJ-JD:29963]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 2864/2018

Surya Veer Singh S/o Shri Gaj Singh Goyal And Late Smt. Sharda Goyal, Resident Of House No. 122, Gajsharda, Guljar Nagar- A, Near Palmart Bhadwasiya, Jodhpur Raj..

----Petitioner Versus

1. State Of Rajasthan, Secretary, Finance Department, Govt. Of Rajasthan, Secretariat, Jaipur.

2. Director, Local Fund Audit Department, Vikt Bhawan, A-

Block, Jyoti Nagar, Jaipur.

3. Joint Director (Administration), Directorate Of Local Fund Audit Department, Vikt Bhawan, A- Block, Jyoti Nagar, Jaipur.

4. Additional Director, Local Fund Audit Department, Opposite Paota Sabji Mandi, Jodhpur.

----Respondents

For Petitioner(s) : Mr. Manish Shishodia, Sr. Advocate assisted by Mr. J.S. Saluja For Respondent(s) : Mr. Abhimannyu Singh Rathore

JUSTICE DINESH MEHTA

Judgment

15/09/2023

1. The petitioner has called in question, the order dated

19.02.2018, whereby his appointment on compassionate ground

has been cancelled.

2. The facts appertain to the issue in hands are that petitioner's

mother Sharda Goyal (hereinafter referred to as 'the deceased

Government Servant') was working with the respondent -

Department while his father was serving the State Pollution

Control Board.

[2023:RJ-JD:29963] (2 of 6) [CW-2864/2018]

3. Petitioner's mother Sharda Goyal developed cancer for which

his father had to take leave for her treatment and care. On

account of frequent leaves he was under mental and physical

stress due to which, he submitted an application for voluntary

retirement under the relevant rules on 24.06.2017.

4. Petitioner's mother Sharda Goyal (deceased Govt. servant)

passed away on 01.07.2017. The application for voluntary

retirement so given by petitioner's father came to be accepted on

19.09.2017.

5. It is the case set up by the petitioner that in order to

maintain the family including himself, on 24.10.2017, he moved

an application for grant of compassionate appointment under the

Rajasthan Compassionate Appointment of dependents of

Deceased Government Servant Rules, 1996 (hereinafter referred

to as "the Rules of 1996").

6. Pursuant to application dated 24.10.2017, the respondents

accorded appointment to the petitioner per-viam order dated

08.01.2018.

7. Before the petitioner could settle in the employment, all of a

sudden, the order impugned dated 19.02.2018 came to be passed

and his appointment was cancelled.

8. Mr. Manish Shishodia, learned Senior Counsel assisted by

Mr. Jaideep Singh Saluja, learned counsel appearing for the

petitioner, argued that the action on the part of the respondents is

per se illegal, arbitrary and contrary to the law.

9. He firstly submitted that if the respondents were of the view

that the appointment given to the petitioner was in any manner

[2023:RJ-JD:29963] (3 of 6) [CW-2864/2018]

contrary to the Rules of 1996, it was incumbent upon the

respondents to have issued a notice to the petitioner.

10. On merit, learned counsel submitted that the respondents

have taken an absolutely incorrect interpretation of the Rule 5 of

the Rules of 1996 and have held petitioner's appointment to be

contrary to Rule 5 of the Rules of 1996, because, on the date of

death of petitioner's mother (01.07.2017), his father was still in

service.

11. While highlighting the fact that petitioner's father had

applied for voluntary retirement on 24.06.2017, Mr. Shishodia,

learned Senior Counsel submitted that the said application came

to be accepted by his employer (Rajasthan Pollution Control

Board) on 19.09.2017, whereafter there remained no earning

member in petitioner's family and hence, the petitioner was legally

entitled to claim and get the appointment on compassionate

grounds in terms of Rule 5 of the Rules of 1996, which uses an

expression "at the time of death of the Government servant or on

the date of appointment of the dependent".

12. Learned Senior Counsel submitted that in exactly identical

fact situation, this Court in the case of Deepak Singh Chouhan Vs.

State of Rajasthan & Anr.: S.B. Civil Writ Petition No.14551/2019,

decided on 04.07.2023, has held the petitioner therein to be

entitled for appointment.

13. Mr. Abhimanyu Singh, learned counsel appearing for the

respondent - State on the other hand submitted that non-

observance of principles of natural justice in the present set of

facts is not a serious error/lapse so as to warrant interference of

this Court, inasmuch as, the facts were clear on record and rather

[2023:RJ-JD:29963] (4 of 6) [CW-2864/2018]

admitted. He added that since facts and statutory provisions were

already known to the petitioner, even if notices were issued, the

same would have made no difference, when it comes to

interpreting Rule 5 of the Rules of 1996.

14. Mr. Singh submitted that if the interpretation being claimed

by the petitioner is accepted, it will frustrate the whole purpose of

the Rules of 1996, which have been introduced in order to tide

over the immediate financial constraints faced by the family of

deceased Government servant. He expressed a concern that such

interpretation would be misused by the families whose one or

more family members are already in Government job, as has been

sought to be done by the petitioner and his family.

15. Learned counsel further argued that true it is, that w.e.f. -

8.04.2015, Rule 5 of the Rules of 1996 has been amended and the

expression "or at the time of appointment of the dependent" has

been inserted, but the same has to be interpreted in consonance

with the spirit and scheme of the Rules of 1996 and the petitioner

cannot claim appointment dehors the provisions and true import

and purport of the Rules of 1996.

16. Heard learned counsel for the parties. Perused the material

available on record.

17. In the opinion of this Court, had the Rule 5 of the Rules of

1996 not been amended and the expression "or at time of the

appointment of the dependent" was not introduced, perhaps what

had been argued by the learned counsel for the State was the only

possible view or interpretation. But, when the State itself has

amended the Rules of 1996 in its own wisdom, it cannot be

contended that the part brought in by the amendment in the Rule

[2023:RJ-JD:29963] (5 of 6) [CW-2864/2018]

5 of the Rules of 1996 be not operated or given effect to simply on

apprehension of misuse.

18. In almost similar factual matrix, in the case of Deepak Singh

Chouhan (supra), this Court has allowed the writ petition by

observing thus:-

"14. It is noteworthy that before the death of the government servant (on 07.10.2017), petitioner's mother - Mithilesh Kumari had applied for voluntary retirement which came to be accepted on 29.11.2017. The petitioner has moved the application for appointment under the Rules of 1996 on 11.12.2017.

15. True it is, that on the date of death of the government servant, petitioner's mother - Mithilesh Kumari was in government service but when the petitioner moved the application for compassionate appointment, his mother had retired (w.e.f. 01.12.2017).

16. In view of the amended provision of Rule 5, this Court is of the considered opinion that since on the relevant date i.e. at the time of submitting the application by the petitioner, his mother was not in government service, condition mentioned in Rule 5 (1) of the Rules of 1996 does not pose any hurdle in petitioner's way of seeking appointment.

17. Since Rule making Authority has amended Rule 5 in order to make the date of appointment of the dependent a relevant date for considering right to compassionate appointment, in the opinion of this Court, the order impugned dated 26.07.2019 passed by the Commissioner of the respondent Corporation is clearly contrary to law.

[2023:RJ-JD:29963] (6 of 6) [CW-2864/2018]

18. The writ petition is, therefore, allowed. The order dated 26.07.2019 is hereby quashed"

19. Concededly, on the date of application under the Rules of

1996 (24.10.2017), petitioner's father Gaj Singh Goyal had retired

(19.09.2017).

20. In view of the discussion foregoing and following the view

taken in the case of Deepak Singh Chouhan (supra), the present

writ petition is also allowed.

21. The order dated 19.02.2018 so also consequential relieving

order dated 20.02.2018 is hereby quashed.

22. The petitioner has been continuing in service for last 5 years

per force interim order dated 26.02.2018, passed by this Court;

the petitioner shall, therefore, be treated to be in service for such

period and his case for regularization etc. shall be considered

accordingly. Consequence be follow.