CW 4774/07 //1// In the High Court of Judicature for Rajasthan Jaipur Bench ** Civil Writ Petition No.4774/2007 Kamla Versus State & (2) Ors. Date of Order ::: 02/12/08 Hon'ble Mr. Justice Ajay Rastogi Mr. Ajay Shukla, for petitioner Mr. JK Agrawal, Addl.Govt. Counsel, for State Mr. Jinesh Jain, for Municipality (respondent No.3) Death is a human tragedy besides a trauma to be lived with by those left behind. A widow has approached this Court by way of instant petition for seeking compassionate appointment as a dependent of deceased Government servant under Rajasthan Compassionate Appointment of Dependants of Deceased Government Servant Rules, 1996 (“Rules, 1996”). Petitioner's husband – Babulal was working as Safai Karamchari in Municipal Council Hindaun since 09/12/1966, died while in service on 01/12/2004 leaving behind three minor children (one daughter & two sons) besides petitioner being a widow – dependent U/r 2(c) of Rules, 1996. After death of her husband, petitioner submitted application seeking compassionate appointment under Rules, 1996, which was rejected vide order dt.29/01/07 (Ann.11) on the premise that deceased Babulal during subsistence CW 4774/07 //2// of his first marriage with Kanta Devi got married with petitioner (Kamla), which being void under law, petitioner cannot be considered to be a spouse & dependent upon deceased servant for seeking appointment under Rules, 1996. It is relevant to mention that first alleged wife (Kanta) died on 08/01/2001 (Ann.1) much before death of deceased servant (Ann.2). In reply to writ petition, respondents have inter-alia averred that petitioner claims herself to be widow of deceased servant (Babulal) since married during sustenance of first marriage with Kanta; so cannot be considered legally wedded wife and her alleged marriage being void under Hindu Law; her claim for compassionate appointment under Rules, 1996 has rightly been rejected by respondents vide order impugned. I have considered rival contentions of Counsel for both the parties and with their assistance, examined material on record. Rules, 1996 have been enacted for regulating recruitment of dependents of deceased Government servants on compassionate grounds. “Dependant” is defined in R.2(c) of Rules, 1996 being relevant for the purpose reads ad infra: “(c) “Dependant” means a spouse, son, unmarried or widowed daughter, adopted CW 4774/07 //3// son/adopted unmarried daughter legally adopted by deceased Government servant during his/her life time and who were wholly Dependant on the deceased Government servant at the time of his/her death. Thus, appointment can be offered under Rules, 1996 to a spouse who must be wholly Dependant on the deceased Government servant. Petitioner has alleged in her petition about first marriage of deceased servant with her elder sister Kanta Devi and since there was no issue from their wed-lock, looking to customs in their society apart from consultation with first wise (Kanta), Babulal (deceased servant) got married with present petitioner from whose wed-lock they have three children who were minor at the time of death – based whereon she applied for compassionate appointment under Rules, 1996 on account of death of her husband Babulal on 01/12/2004. As regards alleged first wife (Kanta), it has come on record that she (Kanta) also expired on 08/01/2001 (Ann.1)much before the death of deceased servant. There cannot be any dispute that U/s 11 of Hindu Marriage Act, 1955 (“the Act, 1995”), if any marriage solemnized after commencement of the Act shall be null & void in case it contravene any one of condition CW 4774/07 //4// specified in clauses (i), (iv) & (v) of S.5, which reads ad infra: “5. Conditions for a Hindu marriage. - A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely :- (i)neither party has a spouse living at the time of the marriage; (iv)the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two: (v)the parties are not Sapindas of each other, unless the customs or usage governing each of them permits of a marriage between the two.” S.5(i) of the Act, ibid, clearly postulates that marriage can be solemnized between any two Hindus only if neither party has a spouse living at the time of the marriage. But at the same time, S.29 of the Act lays down savings and repeal clause and as per sub-section (2) of S.29, it would not affect any right if recognised by custom or conferred by any special enactment to obtain dissolution of a Hindu marriage whether solemnized before or after commencement of the Act. Sub-section (2) of S.29 reads ad infra: “29. Savings. - (2) Nothing contained CW 4774/07 //5// in this Act shall be deemed to after any right recognized by custom or conferred by any special enactment to obtain the dissolution of a Hindu marriage, whether solemnized before or after commencement of this Act.” Thus, the Act does not disturb the position which a customary divorce occupied before or after the enactment of the Act. To find out as a fact for this exception to operate, is, whether there had been as a fact such a customary divorce or dissolution of a Hindu marriage in the matter of a divorce according to custom prevalent in their society. Though the Hindu marriage Act recognises a divorce by customs and if the pre-deceased alleged wife of deceased servant would have objected too the marriage certainly it had to be established that he had obtained divorce by customs. In the absence whereof, no adverse presumption about marriage of present petitioner can be inferred. Apart from what has been observed (supra), at least at the time of death of deceased employee on 01/12/04, indisputably petitioner alongwith three minor children were Dependant upon deceased employee for all practical purposes, as one of dependents in terms of R.2(c) of Rules, 1996 for seeking compassionate appointment. Object of Scheme of compassionate CW 4774/07 //6// appointment rules as considered by Apex Court in a plethora of decisions is to give succor to the family being suddenly plunged into penury due to the untimely death of its sole bread-winner. At the same time, it is also true that it is an exception to general rule to be strictly followed in every case seeking compassionate appointment couched with interest of justice and to meet with such contingency carved out in favour of dependents of an employee dying in harness and leave his family in penury and requiring any means of livelihood to be provided compassionate employment so to enable the family to tide over sudden crisis. In instant case, indisputably on account of sudden death of their bread winner, deceased servant left behind petitioner along with three minor children being wholly dependent, in penury and without means of livelihood, in the considered opinion of this Court, for the purposes of Scheme of Rules, 1996, petitioner can certainly be considered to be spouse of deceased employee and wholly dependent upon him as one of dependents in terms of R.2(c) of Rules, 1996 and compassionate appointment could not have been denied to her on the premise that her husband got married with petitioner during CW 4774/07 //7// subsistence of his first alleged marriage with late Kanta Devi. Consequently, writ petition succeeds and is hereby allowed. Order dt.29/01/07 is hereby quashed & set aside. Respondents are directed to consider candidature of petitioner being dependent spouse of deceased employee for compassionate appointment under Rules, 1996. Respondents shall ensure compliance within two months. No order as to costs. (Ajay Rastogi), J. K.Khatri/p.7/4774CW07-cmpsaptt.doc