JUDGMENT
N.L. Tibrewal, J.
1. This petition raises a question of importance which relates to giving appointment in public services on compassionate ground on death of a Government servant while in service. The question has assumed importance as instances of obtaining employment on the basis of fake claims are increasing.
2. In order to appreciate the question involved in the petition, requisite facts may be given. One Champa Lal, a Male Compounder in Government Amrit Kaur Hospital, Beawar, died on September 15, 1971 while he was in service. After more than 20 years of his death, his widow Smt. Rameshwari Devi applied to provide employment to the petitioner under the Rajasthan Recruitment of Dependents of Government Servant (Dying while in Service) Rules, 1975 (for short the Rules of 1975). The entitlement of the petitioner to get appointment was based on the ground of his being adopted by Smt. Rameshwari Devi in the year 1980 as disclosed in the adoption deed executed on March 13, 1992. Subsequently, the claim was also based on the ground of his being a close relative of the deceased Champa Lal, though the relationship was not disclosed. The entitlement of the petitioner to get employment was examined by the State Government and ultimately the prayer was rejected mainly on the ground of delay, vide communication dated June 21, 1993 (Annex. 7).
3. The learned counsel appearing for the petitioner, seriously contended that petitioner’s entitlement to get appointment has been wrongly denied on the ground of delay. For this, the learned counsel stressed that no limitation is prescribed under the Rules of 1975 and the provision contained in the Rules about its non applicability in the case of Government servant dying prior to September 2, 1972 was deleted in the year 1991 after judgment of this Court in Shashi Kant’s case RLW 1989 1 709. It was also contended that petitioner’s claim has been declined without application of mind as disclosed by the order rejecting the claim in which it has been mentioned that appointment was being sought by the petitioner for being the son-in-law of the deceased. On the other hand, learned Addl. Government Advocate contended that in addition to inordinate delay in moving the application for appointment the petitioner’s entitlement is not sustainable on merit also, as he is not entitled to get employment under the Rules of 1975.
4. I have given my careful consideration to the rival submissions. It is true that the Rules of 1975 have an object to provide employment to one of the dependents of the deceased Government servant on humanitarian and compassionate grounds in order to enable the family to face financial crisis occuring due to demise of the bread earner of the family. The Rules of 1975 are in exception to the general Rules for appointment in public services, which require appointments to be made strictly on merit after giving opportunity to all the persons, in order to meet the contingencies created by death of the bread earner of the family. However, it cannot be lost sight of the fact that vacancies in public services are limited and unemployment-appointment to atleast one member of the family in order to meet the two ends in a day. Hence, a favourable treatment under the Rules of 1975 should not be allowed to be misused by any person. The appointments under the Rules are given in relaxation to the normal Recruitment Rules, which if followed, one would not get appointment
5. Family has been defined under Clause (2) (f) of the Rules as under :-
“Family” means the family of the deceased Government servant and shall include wife or husband, sons and unmarried or “widow daughter and son/daughter adopted according to the provisions of law by the deceased Government servant”, who were dependent on the deceased Government servant :
Provided that if no such member of the family is eligible for getting benefit available under these Rules, the benefit available under these Rules may be extended to any other close relative of the deceased to be named by the widow or the Guardian of the Children of the deceased with the specific approval of the Deptt. of Personnel”.
A look to the above definition of the word “family” reveals that an adopted son or daughter by the deceased Government servant is included in the family and he/she is entitled to get employment provided : (i) the adoption is valid in law ; (ii) the adoption is made by the deceased Government servant; (iii) the adopted son/daughter was dependent on the deceased Government servant.
6. In order to check fake claim based on adoption by the deceased Government servant, it is necessary that the concerned authority should minutely examine the above three conditions before providing employment. It is more so as appointments under the Rules of 1975 are provided in relaxation to normal recruitment Rules at the cost of others. In the instant case, it is not the case of the petitioner that he was adopted by the deceased Government servant or that he was dependent on him at the time of his death. It is no doubt true that a Hindu married female has a right to adopt a son or daughter after death of her husband or her marriage is dissolved, but in that situation it cannot be said that adoption was made by her deceased husband.
7. Further, the petitioner has come with a case that he was adopted by Smt. Rameshwari Devi, widow of the deceased Champa Lal, much after his death in the year 1980. The petitioner has given his date of birth as April 15, 1963 meaning thereby, he was 17 years of age at the time of his alleged adoption. Section-10 of Hindu Adoption and Maintenance Act, 1956 (78 of 1956) provides that the child to be adopted must be below 15 years. Admittedly, the petitioner’s age was above 15 years at the time of his alleged adoption by Smt. Rameshwari Devi. On this ground his adoption was not valid as per the provisions of law. Thus none of the above mentioned conditions is fulfilled in the petitioner’s case for his entitlement to get appointment. Consequently, it is held that the petitioner was not entitled to get appointment under the Rules of 1975. The petition, therefore, deserves to be dismissed.
8. Before parting with, I would like to say few words about the Rules of 1975. A reading of the Rules would show that they have been made more liberal than the requirements to fulfil the object. The object is to grant employment to one member of the family of the deceased Government servant to enable the family to tide over the sudden crisis created on death of the bread-earner of the family. After examining the Rules minutely and anxiously, I feel that the entire scheme needs re-examination by the State Government on the following points :
1. No period of limitation has been specified in the Rules for applying for theemployment. The consideration for compassionate employment is not a vested right which can be exercised at any time in future. The objection being to enable the family to get over the financial crisis which it faces at the time of the death of the sole bread-earner of the family, the compassionate employment should not be allowed to be claimed and offered after the crisis is over by passing of the time. The Rules, therefore, should provide a reasonable time for entertaining a claim for employment.
2. The benefit under the Rules can be extended even to any close relative of the deceased, to be named by the widow or the guardian of the children of the deceased. This provision has no nexus to the object for which the Rules are meant. On the other hand, this can be a source of great misuse for taking employment under the Rules Under the Rules, the employment in Public Services is provided at the cost of the rights of others. In case there is none in the family of the deceased Government servant eligible to get employment, ex-gratia grant in terms of cash per month may be provided to the widow and other dependents, till a member of the family becomes qualified or eligible to get employment under the Rules.
3. Under the Rules of 1975 employment is provided as a matter of course irrespective of the financial condition of the family of the deceased. Further, compassionate employment can be claimed in Class II posts or even above, except the posts in major State Services i.e. Rajasthan Administrative Services, Rajasthan Police Services, Rajasthan Forest Services, Rajasthan Judicial Service and Rajasthan Accounts Service. In Umesh Kumar Nagpal v. State of Haryana and Ors. (1995-I-LLJ-798) the Apex Court of the country has not favoured in granting compassionate employment is posts above Classes III and IV. The Court was of the view that the post is not offered to cater dependent’s status but to see the family through the economic calamity. The Court observed thus :-
“…. The posts in Class III and IV are the lowest posts in non manual and manual categories and hence they alone can be offered on compassionate grounds, the object being to relieve the family, of the financial destitution and to help it get over the emergency. The provisions of employment in such lowest posts by making an exception to the Rule is justifiable and valid since it is not discriminatory. The favourable treatment given to such dependent of the deceased employee in such posts has a rational nexus with the object sought to be achieved, viz., relief against destitution. No other posts are expected or required to be given by the public authorities for the purpose. It must be remembered in this connection that as against the destitute family of the deceased there are millions of other families which are equally, if not more destitute. The exception to the Rule made in favour of the family of the deceased employee is in consideration of the services rendered by him and the legitimate expectations, and the change in the status and affairs, of the family engendered by the erstwhile employment which are suddenly upturned.
3. Unmindful of this legal position, some Governments and public authorities have been offering compassionate employment sometimes as a matter of course irrespective of the financial condition of the family of the deceased and sometimes even in posts above Classes III and IV. That is legally impermissible:”.
9. For the reasons given above, while dismissing this writ petition, I direct the Registry to send a copy of this Judgment to the Chief Secretary, and Law Secretary to the Government of Rajasthan, Jaipur for taking necessary steps for amendments in the Rules of 1975 in the light of the observations made in the Judgment.