JUDGMENT
S.K. Keshote, J.
1. This special appeal under Section 18 of the Rajasthan High Court Ordinance, 1949 is directed against the Order dated 6.7.2001 of the learned Single Judge in S.B. Civil Writ Petition No. 4258/1994.
2. The learned Single Judge under the impugned Order Ordered if the petitioner (respondent herein) is qualified as B.E. (Computer) and if any vacancy was available or is available, he is entitled to be considered against such post under the provisions of Rajasthan (Recruitment of Dependents of Government Servants Dying While in Service) Rules, 1975 (hereinafter shall be referred to as ‘the Rules, 1975’), and in case no such vacancy is available befitting his qualifications, the petitioner respondent shall he considered whenever such vacancy is made available but in no case the stand of the respondents (appellants herein) can be justified to say that their duty is over if a post of LDC is offered to such dependent which is not commensurate with his qualifications. The learned Single Judge further observed that a candidate with higher specialized qualification, is normally to be adjusted as per circular of the State Government on vacancy as per Rules befitting such qualification for which direct recruitment is permissible to the lower cadre in service to the candidate possessing such specialized qualification.
3. With the aforesaid observations the learned Single Judge concluded that the respondents appellants including the Department of Personnel to consider the case for offering the appointment to petitioner respondent commensurate with his qualifications if any such vacancy is available or whenever it becomes available.
4. Briefly stated the facts of the case are that the father of the petitioner respondent died while in service of the State Government as Teacher, on 15.8.1991. The petitioner respondent qualified as Bachelor of Engineering (Computer) from Amravati University in the year 1990. The petitioner respondent applied for suitable post in accordance with his specialized qualification. The respondents appellants offered him the post of LDC or the Assistant Teacher which was not accepted by him and he filed S.B. Civil Writ Petition No. 4258/1994, out of which this special appeal arises, praying therein for a direction to the respondents appellants to appoint him on the post of Junior Engineer or Assistant Engineer (Computer).
5. The writ petition was contested by the respondents appellants. Affidavit in support of the reply has been filed by the Vikas Adhikari, Panchayat Samiti, Khanpur, District Jhalawar.
6. A pleading has been made in para No. 5 of the reply to the writ petition that there is no post of Assistant Engineer (Computer) with the Panchayat Samiti, therefore the petitioner respondent cannot be given such employment. Further the father of the petitioner respondent was a Teacher and in pursuance of which the petitioner respondent was offered the post of Teacher to him. The other appointment so claimed cannot be given to the petitioner respondent.
7. It is again reiterated in para No. 6 of the reply to the writ petition that the post of Assistant Engineer (Computer) cannot be given to the petitioner respondent as the same is not with the Panchayat Samiti.
8. In para No. 9 of the reply to the writ petition it is urged that the petitioner respondent is not entitled for any such post which is above in rank then the post held by the deceased Government servant.
9. Third time it is reiterated that no such post is available in the respondent appellants’ Department which is claimed by the petitioner respondent. As per his entitlement the post was offered which is with the respondent appellants’ department.
10. The petitioner respondent filed rejoinder to the reply.
11. In para No. 6 of the rejoinder to the reply to the writ petition the respondent has not disputed that the post of Assistant Engineer (Computer) is not there in the Panchayat Samiti. Not only this the petitioner respondent has nowhere stated that in Panchayat Samiti the post of Junior Engineer or Assistant Engineer (Computer) is there. Thus, it remained uncontroverted and undisputed that the post of Junior Engineer or Assistant Engineer (Computer) was not there in the Panchayat Samiti.
12. The learned counsel for the respondents appellants, relying on the various decisions of the Hon’ble Supreme Court contended that the respondents appellants could not have been directed to consider the case of the petitioner respondent for appointment on the post of Junior Engineer or Assistant Engineer (Computer) When the post is not available or in his submission the post is not there with the Panchayat Samiti wherein the deceased father of the petitioner respondent was in service, this direction tantamount to creation of a new post.
13. It has next been contended that the very object and purpose of compassion-ale appointment has not been appreciated in correct perspective by the learned Single Judge.
14. From the facts of this case, Mr. Manish Bhandari, the learned counsel for the respondents appellants, submitted that the petitioner respondent claimed the appointment on compassionate ground as of a Rule, right or course. It is not the case where any financial crisis has been resulted to the family of the deceased government servant on his death. Had there been any financial crisis resulted due to his death, the petitioner respondent would have accepted the appointment offered to him.
15. Lastly it is submitted that their Lordships of the Hon’ble Supreme Court in catena of decisions have held that the appointment on compassionate ground cannot be given to the dependent of the deceased government servant on a post above the Class III or Class IV. Both the posts i.e.. Junior Engineer and Assistant Teacher are to be filled in by selection. The latter post is of State service and the former is a subordinate service and the latter is much higher than the post of Assistant Teacher.
16. On the other hand, Mr. Pradeep Jain, the learned counsel for the petitioner respondent, supported the judgment of the learned Single Judge.
17. There cannot be two view that the appointment in the public service should be made strictly on the basis of open invitation of applications and merits. No other mode of appointment nor any consideration is permissible otherwise the whole procedure and the appointment would be violative of Article 16 of the Constitution of India. The Government as well as the public authorities are not at liberty to follow any other procedure or to relax the qualification laid down by the Rules for the post but to this general Rule which is to be followed strictly in every case there are some exceptions carved out in the interest of justice and to meet the certain contingencies. Their Lordships of the Hon’ble Supreme Court in the case of Umesh Kumar Nagpal v. State of Haryana, (1994) 4 SCC 138, held that one such exception is in favour of the dependents of an employee dying in harness and leaving his family in penury and without any means of livelihood. In such cases, out of pure humanitarian consideration taking into consideration the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made in the Rule to provide gainful employment to one of the dependents of the deceased who may be eligible for such employment. Thus the whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis.
18. Mere death of an employee in harness, it is no more in res integra, does not entitle his family to such source of livelihood. The Government or the public authority concerned has to examine the financial condition of the family of the deceased, and it is only if it is satisfied, that but for the provision of employment, the family will not be able to meet the crisis that a job is to be offered to the eligible member of the family. It is not gainsay 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 this general Rule of appointment on compassionate ground, 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.
19. In the case of Jagdish Prasad v. State of Bihar, (1996) 1 SCC 301, the Hon’ble Apex Court held that the very object of appointment of a dependent of the deceased employees who die in harness is to relieve unexpected immediate hardship and distress caused to the family by sudden demise of the earning member of the family.
20. The reference here fruitfully may have to the decision of Hon’ble the Apex Court in the case of Union of India v. Bhagwan Singh, (1995) 6 SCC 476. In that case their Lordships of the Hon’ble Supreme Court held,
“In the instant case, the plea for compassionate employment is not to enable the family to tide over the sudden crisis or distress which resulted long ago. At the time the railway servant died there were two major sons and the mother of the children who were apparently capable of meeting the needs in the family and so they did not apply for any job on compassionate grounds. For nearly 20 years, the family has pulled on, apparently without any difficulty. In this background, it must be held that the Central Administrative Tribunal acted illegally and wholly without jurisdiction in directing the Authorities to consider the case of the respondent for appointment on compassionate grounds and to provide him with an appointment, if he is found suitable.”
21. In the case of Hindustan, Aeronautics Limited v. A. Radhika Thirumalai, (1996) 6 SCC 394, their Lordships of the Hon’ble Supreme Court held that the Order of the High Court to consider the candidature of the dependent of deceased employee and to give the compassionate appointment to him/her by creating a supernumerary post is improper. The fact of the case was that the dependent of the deceased employee applied for the compassionate appointment at the time when there was no vacancy and a ban on fresh recruitment was in operation as there was surplus labour, the work force was being reduced and incentives were being offered for voluntary retirement. There is no right vested in the dependent of the deceased government servant for a particular appointment on compassionate ground. In the absence of a vacancy it is riot open to the Government to appoint a person to any post. It will be gross abuse of power of a government to appoint a person when vacancy is not available. If person is so appointed and paid salary it will be misuse of public funds which is totally unauthorized.
22. In the case of Himachal Road Transport Corporation v. Dinesh Kumar, (1996) 4 SCC 560, their Lordships of the Hon’ble Supreme Court held that it is not open to the Tribunal either to direct the authorities concerned to create a supernumerary post and then appoint a person to such a post.
23. The reference here may have to the decision of the Hon’ble Supreme Court in the case of Haryana State Electricity Board v. Naresh Tanwar, (1996) 8 SCC 23. In that case their Lordships of the Hon’ble Supreme Court held that belated claim for compassionate appointment of the dependent of deceased government servant cannot be accepted. It is held:-
“Compassionate appointment cannot be granted after a long lapse of reasonable period and the very purpose of compassionate appointment, as an exception to the general Rule of open recruitment, is intended to meet the immediate financial problem being suffered by the members of the family of the deceased employee. The very object of appointment of dependent of deceased employee who died in harness is to relieve immediate hardship and distress caused to the family by sudden demise of the earning member of the family and such consideration cannot be kept binding for years.”
24. In the case of Haryana State Electricity Board v. Naresh Tanwar (supra), their Lordships of the Hon’ble Supreme Court further held that in absence of a vacancy it is not open to the Corporation to appoint a person to any post.
25. In the case of Orissa State Electricity Board v. Raj Kumari Panda, 1999 SCC (L&S) 729, their Lordships of the Hon’ble Supreme Court held that the other conditions precedent for the compassionate appointment is that it can be given only when vacancies exist and not otherwise.
26. In the case of Andhra Pradesh State Road Transport Corporation v. Dannina Rajeswari, (1999) SCC (L&S) 1182, their Lordships of the Hon’ble Supreme Court held that relief for the compassionate appointment can be granted only if clear vacancy exists.
27. In the case of Director of Education (Secondary) v. Pushpendra Kumar, (1998) 5 SCC 192, their Lordships of the Hon’ble Supreme Court held that the compassionate appointment cannot be insisted upon for a particular post.
28. Where a son of the deceased employee was already in government service, their Lordships of the Hon’ble Supreme Court in the case of State of Himachal Pradesh v. Jafli Devi, (1997) 5 SCC 301, held that the denial of the compassionate appointment by the department to another son of the same deceased is not illegal or arbitrary.
29. In the case of Sanjay Kumar v. State of Bihar, AIR 2000 SC 2782, their Lordships of the Hon’ble Supreme Court held that the object and purpose of compassionate appointment are reiterated by their Lordships of the Hon’ble Supreme Court and held that it is intended to enable the family of the deceased employee to tide over sudden crisis resulting due to death of the bread earner who had left the family in penury and without any means of livelihood.
30. The Single Judge (one of us) in Kuldeep Kumar Kashyap v. State of Rajasthan and Ors. S.B. Civil Writ Petition No, 6253/1990, decided on 30th May, 2001, decided on 30th of May, 2001, after considering catena of decisions of the Hon’ble Supreme Court on appointment on compassionate ground in the services of Central/State Government or Statutory Board, Organisation/Corporation owned or controlled wholly or partially by the Central/State Government, gave out the necessary requirements for this claim, which are as under,
“(1) mere death of an employee does not entitle his family members to claim compassionate appointment;
(2) the dependent has to apply for appointment on compassionate ground within a reasonable period from the date of death of the government servant;
(3) the appointment on compassionate ground cannot be given or offered after a lapse of time;
(4) the appointment on compassionate ground is to be given only against Class III or Class IV post, in case the post of lowest pay scale is not vacant in Class III and the post of higher pay scale is available, the appointment may be given with the condition to down grade the post to the lowest pay scale in Class III and on availability of the post of lowest pay scale the employee is to be brought to that post.
(5) the appointment on compassionate ground can be given only against the vacant post meaning thereby the supernumerary or other post cannot be created;
(6) the appointment on compassionate ground may be given only after laying down a financial criteria;
(7) once an appointment on compassionate ground has been given on a vacant post, this claim shall stand fulfilled and cannot be made for other post in future;
(8) the consideration for appointment on compassionate ground should have been where as a result of death of the government employee there is a financial crisis in the family and unless it is provided with financial assistance it cannot come over the financial crisis. The appointment on compassionate ground is provided to tide over the sudden financial crisis on account of untimely demise of the sole bread winner of the family;
(9) no other dependent of the deceased employee should be in gainful employment either of the Central/State government or Statutory Board, Organisation/Corporation owned or controlled wholly or partially by the Central/State Government, as the appointment on compassionate ground is provided to meet the immediate financial problem being suffered by the members of the bereaved family.”
31. The father of the petitioner died on 15.8.1991. He left behind surviving him his heirs,
1. Mohani Devi, Wife of the deceased Government servant
2. Parmeshwar Dayal, Son of the deceased government servant
3. Mahesh Parth, Son of the deceased government servant
4. Chandra Shekhar Parth, Son of the deceased government servant
5. Dharmendra Parth, Son of the deceased government servant (petitioner respondent)
6. Manju Parth, Daughter of the deceased government servant
7. Kusum Lata Parth, Daughter-in-law of the deceased government servant
0
8. Om Lata Parth, Daughter-in-law of the deceased government servant
32. Two adult son of the deceased government servant, Parmeshwar Dayal and Mahesh Parth, at the relevant time were having the qualification of 11th and B.Com., and they were married.
33. It is not the case of the petitioner respondent that on the date of the death of their father deceased government servant, his two elder brothers Parmeshwar Dayal and Mahesh Parth, were not in employment or not engaged in any business or trade. The very fact that these two brothers were married, there cannot be gainsay that they were the earning members in the family. Mohini Devi, the widow of the deceased government servant, filed her affidavit (Annexure-4 on the record) and therein she nowhere stated that her two elder sons Parmeshwar Dayal and Mahesh Parth are not in gainful employment or doing their own trade or business. From the tenor of the affidavit of the lady we are satisfied that they were in the gainful employment either in the service or doing their own business or trade. Parmeshwar Dayal and Mahesh Parth have also filed their affidavits and they nowhere claimed the appointment on compassionate ground and further have given their no objection in case the appointment is given to the petitioner. They nowhere stated that they are not earning member of the family or further that the family is not dependent on them or they are not supporting the family.
34. From the document Annexure-8 we find that the petitioner obtained the Degree of Bachelor of Engineering (Computer) in the year 1990. Her mother submitted the application to the appellant Department for giving appointment to the petitioner on compassionate ground. The application is on the record as Annexure-2. This reads as under,
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35. This document clinches the issue and leaves no doubt whatsoever in our mind that two elder sons of the deceased government servant were in gainful employment and they are maintaining the family. The widow of the deceased as it transpires from the aforesaid application is claiming the appointment for his son on compassionate ground as a Rule or right or course and not on the ground that on account of the death of the deceased government servant, the only bread earner, the family is facing financial crisis.
36. It is not the case where the family is facing any financial crisis and the prayer is made to enable the family of the deceased government servant to tide over the sudden crisis resulted due to his death and the deceased government servant left the family in penury and without any means of livelihood. In case it would have been the case of the category aforestated and two elder brothers of the petitioner would not have been in gainful employment, immediately after the death of their father, the application would have been submitted by either of the elder sons of the deceased government servant. The application in this case was filed after more than two years and four months of the death of the deceased government servant. That apart, it has been filed after more than three years of passing of the Degree of BE (Computer) by the petitioner.
37. From the record of the writ petition we are satisfied that it is a clear case where the widow of the deceased government servant and the petitioner are claiming this appointment on compassionate ground as if it is their right. In case the appointment to the petitioner is given on compassionate ground on any of the post in the Panchayat Samiti, it will be abuse of the Rules made therefor for the dependent of the deceased died while in service. Not only this it will result in unjust enrichment, to a family of the deceased who has not left the family in penury and without any source of livelihood. We are of the considered opinion that even offer of the appointment on the post of LDC or Assistant Teacher to the petitioner, in the facts of this case and law as laid down by their Lordships of the Hon’ble Supreme Court in the catena of decisions, was uncalled for.
38. The matter yet can be examined from another aspect. The petitioner was offered the appointment on the post of LDC/Assistant Teacher on compassionate ground, but he has not accepted it, that means it is not the case where deceased has left the family in penury or without any means of livelihood. He insisted that he should be given appointment on the post of Assistant Engineer. These facts conclude the issue that the petitioner is claiming the appointment on compassionate ground as of right being the heir of the deceased government servant.
39. That apart the post of Assistant Engineer or Junior Engineer (Computer) undisputedly is not there in the appellants’ Department. Where the post on which the petitioner has claimed appointment on compassionate ground, is not there, his this claim otherwise also not justifiable. Thus, the claim made by the petitioner of appointment on compassionate ground on the post of Assistant Engineer/Junior Engineer (Computer), in view of the decision of the Hon’ble Supreme Court, the reference of which has been made in the preceding part of the judgment, is unsustainable. Even if the post claimed by the petitioner is there and vacancy does not exist in the appellants Department, in view of the decision of the Hon’ble Supreme Court in Orissa State Electricity Board v. Raj Kumari Panda (supra), and Andhra Pradesh State Road Transport Corporation v. Dannina Rajeswari (supra), no such relief could have been granted as what it has been done by the learned Single Judge under the impugned judgment. This claim of the petitioner for appointment on a particular post is also not sustainable in view of the decision of the Hon’ble Apex Court in the case of Director of Education (Secondary) vs. Pushpendra Kumar (supra).
40. In our considered opinion the learned Single Judge has not examined the facts of this case and has proceeded as the petitioner is possessing the qualification of Bachelor of Engineering (Computer Science) has right to claim appointment on the post commensurate with his qualifications. It is wholly an erroneous approach. If such a claim of the petitioner is accepted, it is against the very object and purpose of the Rules framed for giving appointment on compassionate ground to a dependent of the deceased employee died in harness.
41. The petitioner was offered the appointment on the post of LDC or Assistant Teacher and that offer he has not accepted. We are of the considered opinion that the offer given by the appellants’ Department to the petitioner for appointment on the post of Assistant Teacher/LDC on compassionate ground, was also against the Rules.
42. As a result of the aforesaid discussion, this appeal succeeds and the same is allowed. The judgment dated 6th of July, 2001 of the learned Single Judge in S.B. Civil Writ Petition No. 4258 of 1994 is quashed and set aside and the writ petition filed by the petitioner is dismissed in toto.
43. In view of this Order, the stay application, filed along with the special appeal, also accordingly stands disposed of.
44. However in the facts of this case, there shall be no Order as to costs.
