Rajasthan High Court - Jodhpur
Ajmer Vidhyut Vitaran Nigam Ltd. And Ors vs Mukesh Kumar Berwa on 28 February, 2025
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
[2025:RJ-JD:5275-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Spl. Appl. Writ No. 1422/2014
1. Ajmer Vidyut Vitran Nigam Limited, Ajmer through its
Managing Director, Ajmer.
2. The Secretary, Ajmer Vidyut Vitran Nigam Limited,
Shahapura, District Bhilwara.
3. Assistant Engineer (O&M), Ajmer Vidyut Vitran Nigam Limited,
Shahpura, District Bhilwara.
----Appellant
Versus
Mukesh Kumar Berwa s/o Shri Uma Shanker Berwa, r/o House
No.E-209, Asava Colony, V&P Shahapura, District Bhilwara,
Rajasthan.
----Respondent
For Appellant(s) : Mr. Vikram Choudhary
For Respondent(s) : Mr. Rajat Choudhary on behalf of
Mr. Tirth Raj Singh Sodha
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
HON'BLE MR. JUSTICE MUNNURI LAXMAN
Judgment
Reportable
Reserved on 15/01/2025
Pronounced on 28/02/2025
Per Dr. Pushpendra Singh Bhati, J:
1. The present Special Appeal has been preferred by the
appellants (respondents in the writ petition) laying a challenge to
the order dated 03.07.2014 passed by learned Single Judge of this
Hon'ble Court in S.B. Civil Writ Petition No.4539/2014 (Mukesh
Kumar Berwa vs Ajmer Vidhyut Vitaran Nigam Ltd. & Ors.),
whereby the writ petition was disposed of, while giving liberty to
the respondent (writ petitioner) to file representation, and
directing the appellants to consider his case for compassionate
appointment, within one month from the date of receipt of such
representation, in terms of the orders, as referred in the
impugned order.
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2. The factual background, as presented by the learned Counsel
for the appellants, is that the respondent was the son of the Late
Shri Uma Shankar Berwa, who passed away on 17.02.2011, while
serving as Helper Grade II with the appellants, at Shahpura. The
respondent submitted an application before the Secretary, AVVN
Ltd., praying for according compassionate appointment in the
Department, in accordance with Rajasthan Compassionate
Appointments of Dependents of Deceased Government Servant
Rules, 1996 (in short, 'Rules of 1996'). However, the appellants
had considered and rejected the respondent's application for
compassionate appointment on 13.05.2014, citing the reason that
the respondent had more than two children after the cut-off date
of 01.06.2002, thus, violative of the eligibility criteria as
prescribed, for the purpose in question, in the notification
No.7(1)DOP/A-II/95/Pt.-II dated 24.02.2011 issued by the
Government of Rajasthan, which had been duly adopted by the
appellant-department vide Order no.AVVNL/CAO(R&C)/AAO
(Rule)/F-25/OO/D-2432 dated 05.09.2011.
2.1. Aggrieved thereby, the respondent filed the aforementioned
writ petition, which came to be disposed of vide the impugned
order dated 03.07.2014, as mentioned above.
3. Learned counsel for the appellants (respondents in the writ
petition) submitted that the impugned order was passed ex parte,
against the appellants, without even affording the appellants an
opportunity to show cause as to why the writ petition is not
maintainable.
[2025:RJ-JD:5275-DB] (3 of 11) [SAW-1422/2014]
3.1. It was further contended that the appellants, in support of
their stand, mainly relied on the notification dated 24.02.2011
issued by the Government of Rajasthan, which, as per them, duly
addresses the aspect of 'non-eligibility' of candidates with more
than two children born on or after 01.06.2002, for the purpose of
appointments as well as promotions. Consequently, the rejection
of the respondent's application for compassionate appointment by
the appellants was made, while making due adherence to the said
notification, and thus, does not suffer from any legal infirmity.
Furthermore, as per learned counsel, the said notification, as
reflected in the adoption order dated 05.09.2011, has been made
applicable prospectively.
3.2. It was also submitted that in the present case, the
respondent's application was submitted on 06.03.2012, which was
significantly after the adoption of the notification dated
24.02.2011, by the appellant-department vide order dated
05.09.2011. Thus, the respondent is not entitled for
compassionate appointment, as claimed by him.
3.3. It was further submitted by the learned counsel that the
validity of the notification dated 24.02.2011 has not been
questioned by the respondent in the writ petition, which was
disposed of vide the impugned order. Rather, it challenges the
rejection of the application seeking compassionate appointment on
the ground of the respondent having more than 2 children on or
after 01.06.2002. Furthermore, the action of the appellant-
department in rejecting the respondent's application for
compassionate appointment was in full compliance with the
[2025:RJ-JD:5275-DB] (4 of 11) [SAW-1422/2014]
notification of the Government of Rajasthan and the right of the
employer to modify its scheme of employment with respect to
appointment, including compassionate appointment.
3.4. In support of such submissions, learned counsel relied upon
the following judgments:
(i) Chagan Lal Nenama vs State of Rajasthan & Ors. (D.B. Civil
Writ Petition No. 7061/2017, decided on 06.04.2022)
(ii) Ramdev vs State of Rajasthan (D.B. Spl. Appl. Writ No.
261/2020, decided on 30.07.2020)
(iii) N.C. Santhosh vs State of Karnataka & Ors. (Civil Appeal
Nos. 9280-9281 of 2014, decided on 04.03.2020)
(iv) Bank of Baroda & Ors. Vs Baljit Singh (Civil Appeal No. 624
of 2017, decided on 21.06.2023)
(v) Shankar Lal Meena vs State of Rajasthan & Ors. (S.B. Civil
Writ Petition No. 7256/2021, decided on 20.07.2021).
4. Per contra, learned counsel appearing for the respondent
(writ petitioner) vehemently opposed the aforementioned
submissions made on behalf of the appellants and emphatically
supported the impugned order.
4.1. It was submitted that the respondent has been unjustly
denied the compassionate appointment in question, on the count
of his having more than two children on or after 01.06.2002. It
was further contended that neither the rules governing
compassionate appointments in the appellant department nor
Rules of 1996 impose any such restriction, and therefore, the
respondent's application could not have been rejected on this
ground.
[2025:RJ-JD:5275-DB] (5 of 11) [SAW-1422/2014]
4.2. It was further argued that the notification relied upon by the
appellant-department was issued by the State Government and
adopted by the appellant-department after the death of the
respondent's father's i.e. on 17.02.2011. Thus, at the time of the
employee's death, no such prescription was in existence. In this
context, applying the prescriptions of the notification
retrospectively to deny the respondent's case for compassionate
appointment, runs contrary to the legal principles, as retrospective
application of laws or rules is generally not permitted, especially
when it negatively impacts rights or claims that arose prior to
their coming into force.
4.3. It was further submitted that despite the respondent making
multiple requests to the appellant department, including a written
request dated 29.04.2013 for the grant of compassionate
appointment, the department has failed to respond to such
legitimate requests. The only communication received from the
appellants was a letter dated 13.05.2014, which merely assigned
the reason for such rejection on count of the respondent having
more than two children on or after 01.06.2002.
4.4. In support of such submissions, learned counsel relied upon
the following judgments:
(i) Mukesh Kumar vs Union of Indian General Manager (SLP©
No. 18571/2018, decided on 24.02.2022)
(ii) Smt. Durga Devi Mairda vs State of Rajasthan & Ors. (D.B.
Spl. Appl. Writ No. 1119/2022, decided on 02.01.2024)
5. Heard learned counsel for the parties as well as perused the
record of the case, alongwith the judgments cited at the Bar.
[2025:RJ-JD:5275-DB] (6 of 11) [SAW-1422/2014]
6. This Court observes that the appellants have contested the
relief awarded to the respondent in S.B. Civil Writ Petition No.
4539/2014, wherein the respondent (writ petitioner) sought
compassionate appointment in the appellant-department following
the demise of his father on 17.02.2011, who was an employee of
the appellant-department at the time of his death.
6.1. Upon reviewing the record, the Court further observes that
the respondent (writ petitioner) submitted an application for
compassionate appointment in the appellant-department on
06.03.2012. This application was considered and subsequently
rejected on 13.05.2014. The rejection was made in pursuance
with the notification dated 24.02.2011 issued by the Government
of Rajasthan, which was adopted by the appellant-department on
05.09.2011. The basis for the rejection was that the respondent
had more than two children born after the cut-off date of
01.06.2002.
7. This Court is conscious that the concept of compassionate
appointment to tide over the immediate crisis as derived from the
Right to Livelihood under Article 21, read in conjunction with
Article 39(a) of the Constitution of India.
7.1. This Court is also conscious of the legal precedents indicating
that the concept of compassionate appointment emerged in 1970s
and gained significant traction in the subsequent decade. The
Hon'ble Supreme Court has, over time, laid down guidelines for
the grant of compassionate appointment to one of the dependent
family members of the government servants who either died while
in service or have become permanently incapacitated, thus
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rendering them unable to continue in their employment, leaving
their families in a state of destitution.
7.2. At this juncture, this Court considers it appropriate to
reproduce the relevant portion of the judgment rendered by the
Hon'ble Supreme Court in the case of Haryana State Electricity
Board v. Hakim Singh (1997) 8 SCC 85, as hereunder:
"8. The rule of appointments to public service is that they
should be on merits and through open invitation. It is the
normal route through which one can get into a public
employment. However, as every rule can have exceptions,
there are a few exceptions to the said rule also which have
been evolved to meet certain contingencies. As per one such
exception relief is provided to the bereaved family of a
deceased employee by accommodating one of his dependants
in a vacancy. The object is to give succour to the family which
has been suddenly plunged into penury due to the untimely
death of its sole breadwinner. This Court has observed time
and again that the object of providing such ameliorating relief
should not be taken as opening an alternative mode of
recruitment to public employment."
8. This Court is also conscious of the judgment rendered by a
three-Judge Bench of the Hon'ble Supreme Court, in the case of
N.C. Santhosh vs. State of Karnataka & Ors. (2020) 7 SCC
617, and as relied upon by the appellants, which encapsulates the
governing principles for the grant of compassionate appointments
as follows:
"(i) Compassionate appointment constitutes an exception to
the general rule of recruitment.
(ii) There exists no inherent entitlement or right for any
individual to secure a compassionate appointment.
[2025:RJ-JD:5275-DB] (8 of 11) [SAW-1422/2014]
(iii) Appointments to public posts within the service of the State
must adhere to the principles of equality and equal opportunity,
as enshrined in Articles 14 and 16 of the Constitution of India.
(iv) A compassionate appointment can only be granted if the
applicant satisfies the criteria outlined in the relevant State policy
and meets the eligibility requirements prescribed therein.
(v) The norms applicable at the time of the consideration of
the application shall be the governing criteria for evaluating
claims for compassionate appointment."
9. This Court further notes that, within six months of the
ruling in N.C. Santhosh (supra), came another decision of
another three-Judge Bench in State of Madhya Pradesh v.
Amit Shrivas (2020) 10 SCC 496 wherein it was held that:
"16. It is trite to say that there cannot be any inherent
right to compassionate appointment but rather, it is a right
based on certain criteria, especially to provide succour to a
needy family. This has to be in terms of the applicable
policy as existing on the date of demise, unless a
subsequent policy is made applicable retrospectively.
..."
10. This Court is also conscious of the latest judgment of the
Hon'ble Supreme Court in the case of Canara Bank vs
Ajithkumar G.K. (Civil Appeal No. 255 of 2025, decided on
11.02.2025), wherein the concept and judicial precedents
relating to compassionate appointment have been discussed in
detail.
11. In light of the aforementioned judgments and the
chronology of the present case, this Court observes that the
policy of the Government of Rajasthan (dated 24.02.2011)
disabling the candidates with more than two children born on or
[2025:RJ-JD:5275-DB] (9 of 11) [SAW-1422/2014]
after the cut-off date of 01.06.2002, for appointment on
compassionate grounds, was adopted by the appellant-
department on 05.09.2011, long time after the death of the
respondent's father, the deceased- employee on 17.02.2011.
11.1.This Court adheres to the view of the Hon'ble Apex Court
in the case of Bhawani Prasad Sonkar v. Union of India
((2011) 4 SCC 209) and also in Ajithkumar G.K. (supra),
wherein it was held that the scheme/policy has to be strictly
construed and confined only to the purpose it seeks to achieve.
11.2.This Court further observes that in the present case,
neither the policy was in existence on the date of death of
the employee nor anything in the scheme/policy in
question was mentioned which bars the candidature of
the respondent on the aforesaid ground, so also nothing
has been mentioned therein with regard to its
retrospective applicability. In absence of the same, this
Court considers it appropriate to strictly apply the law
prevailing on the date of death of the employee, and not
apply the said notification retrospectively, more particularly, in
absence of any express stipulation with regard to its
retrospective application.
12. This Court thus observes that the rejection of the
candidature for the appointment on compassionate grounds in
such circumstance, would violate the objective of the law
intended to enable the family members in distress, of a
[2025:RJ-JD:5275-DB] (10 of 11) [SAW-1422/2014]
deceased or an incapacitated employee to tide over the sudden
financial crisis.
13. This Court further notes that the aforementioned
notification, which forms the basis of the present controversy
and imposes "non-eligibility" on the ground of having more than
two children on or after the specified cut-off date, has not been
contested in the instant appeal. There was no necessity to
challenge the said notification as the cause of action which arose
on the date of death of employee, i.e., on 17.02.2011, whereas
the notification regarding two children was issued thereafter on
24.02.2011 and thus, the same cannot be applied
retrospectively. Therefore, the issue of assessing the validity of
such notification remains unexamined.
13.1.It is also kept in consideration by this Court that the Right
of Compassionate Appointment in the present case is backed by
statutory rights arising out of the Rajasthan Compassionate
Appointments of Dependents of Deceased Government Servant
Rules, 1996, which being a state law has been duly adopted by
the appellant-department.
14. In view of the above, this Court does not find it a fit case
so as to warrant any interference in the impugned judgment
dated 03.07.2014 of the learned Single Judge in S.B. Civil Writ
Petition No. 4539/2014 (Mukesh Kumar Berwa vs Ajmer Vidhyut
Vitaran Nigam Ltd. & Ors.), which was passed while relying on
the judgment of Gyan Chand vs State of Rajasthan (S.B.
Civil Writ Petition No. 1697/2013, decided on 03.02.2014).
[2025:RJ-JD:5275-DB] (11 of 11) [SAW-1422/2014]
15. This Court further observes that the cases relied upon by
the appellant-department do not render any assistance to their
case in the present factual matrix.
16. In the present case, the denial of compassionate
appointment by the appellant-department without any just
cause, coupled with the fact that litigation has been going on for
over a decade, shows the that on the one hand, the family has
been under bereavement due to sad demise of the family
member, who was rather the sole breadwinner of the family,
while on the other hand, the inaction on the part of the
appellant-department, while declining the compassionate
appointment in question, deprived the family of the means of
coming out of the penurious state.
17. For the foregoing observations, this Court does not find it a
fit case so as to grant any relief to the appellants in the instant
appeal.
18. Consequently, the present special appeal is dismissed.
(MUNNURI LAXMAN),J (DR. PUSHPENDRA SINGH BHATI),J
SKant/-
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