1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR ORDER Rajendra Singh & Anr. vs. State of Rajasthan & Ors. (S.B.C.WRIT PETITION NO.52250/94) Dated: 15.2.2008. HON'BLE MR.JUSTICE SANGEET LODHA Mr.Rameshwar Hedau, for the petitioners. Mr. Deepak Choudhary, Dy. Government Counsel. BY THE COURT: 1. In this writ petition, directions are sought against the respondents to appoint petitioner no.1 on the post of Driver in Department of Animal Husbandry , Government of Rajasthan, on compassionate ground as dependent of deceased government servant late Shri Jasraj, who died while in service on 30.8.65. 2. Briefly stated the facts of the case are that Shri Jasraj was employed as veterinary compounder in the Department of Animal Husbandry. He died while in service on 30.8.65. He was survived by his widow Smt. Punni Devi- the petitioner no.2 ,and daughters Smt. Bhanwari Devi, Khambha Devi and Shanti Devi. It is stated that late Shri Jasraj had no male issue but, during his lifetime he had expressed his desire to adopt any of his close relatives as his son, therefore, after the death of Shri Jasraj, his widow Smt. Punni Devi-petitioner no.2 has adopted the petitioner no.1 as her son. 2 On 25.2.92, the petitioner no.2 Smt. Punni Devi made an application nominating her adopted son petitioner no.1, for his appointment on the post of Driver on compassionate ground under the provisions of Rajasthan (Recruitment of Dependants of Government Servants Dying While in Service )Rules, 1975(in short "the Rules of 1975" hereinafter). It is stated that on 28.5.93, the respondents no.2 conveyed the refusal to accord appointment to the petitioner no.2 in terms of Rules of 1975. In these circumstances, petitioners preferred a writ petition before this Court which was partly allowed and the respondents were directed to forward the application preferred by the petitioner no.2 alongwith the letter of nomination for consideration and necessary orders to the Department of Personnel, Government of Rajasthan. It was further observed by this Court that if application is rejected , then, the petitioner will be free to avail the remedy available to him under the law. It is stated that despite directions of this Court, the respondents have again refused to accord appointment to the petitioner no.1. 3. It is contended that the petitioner no.1 falls within the definition of "family" of the deceased government servant as set out in Rule 2(f) of the Rules of 1975, therefore, in terms of Rule 5 of the Rules of 1975 being the member of family of the deceased government servant,he was entitled to be given a suitable appointment in government service.Thus,it is claimed 3 that the denial of appointment to the petitioner no.1 is illegal, arbitrary and discriminatory so as to violative of Article 14 and 16 of the Constitution of India. 4. A reply to the writ petition has been filed on behalf of the respondents, wherein it is stated that Shri Jasraj, husband of petitioner no.2 had died while in service on 30.8.65. The daughters of late Shri Jasraj have entered into marriage thereafter and admittedly, the petitioner no.1 was born on 17.5.72. It is submitted that as stated in the earlier writ petition, the petitioner no.1 has been adopted by petitioner no.2,widow of late Shri Jasraj on 2.6.92, therefore, he cannot be considered to be a dependent of deceased government servant entitle to claim appointment under the provisions of the Rules of 1975. It is submitted that the petitioner no.1 neither comes within the definition of the dependent of the deceased government servant nor he can be treated to be a family member of the deceased government servant, therefore, the application preferred seeking appointment on compassionate ground under the Rules of 1975 has rightly been rejected by the respondents. 5. It is contended by the learned counsel for the petitioners that being an adopted son and close relative of late Shri Jasraj, the deceased government servant , the petitioner no.1 is entitle to be considered for appointment on the post of Driver under the provisions of the Rules of 1975. It is stated that the adopted son 4 of the deceased government servant is specifically included within the definition of "family" set out in Rule 2(f) of the Rules of 1975. That apart, by virtue of proviso to Rule 2(f), if no member of family of a deceased government servant is eligible for getting benefit under the Rules of 1975 then, the benefit available may be extended to any other close relative of the deceased to be named by the widow, therefore, the appointment cannot be denied to the petitioner no.1 inasmuch as admittedly, he is grand son of deceased government servant being his dauther's son. 6. Per contra, learned Dy.Government Counsel while reiterating the stand taken in the reply to the writ petition contended that the petitioner was not even born as on the date , the government servant Shri Jasraj had died while in service, therefore, he does not fall within the definition of "family" of the deceased government servant set out in Clause 2(f) of the Rules of 1975 and for the parity of reasons, he cannot claim appointment as close relative of the deceased government servant who can be nominated for appointment by the widow by virtue of the proviso to Rule 2(f) of the Rules of 1975. 7. I have heard the learned counsels for the parties, considered the rival submissions and perused the record. 8. It is to be noticed that the Rules of 1975 have been framed so as to extend an immediate succor to the bereaved family of 5 deceased government servant who has died in harness. The appointment on compassionate ground, an exception carved out to the relevant recruitment Rules governing the public employment, to meet the particular contingency, cannot be claimed as a matter of right. 9. In the matter of State of Haryana vs. Rani Devi, [1996(5) SCC,308], the Hon'ble Supreme Court has observed that "it need not be pointed out that the claim of the person concerned for appointment on compassionate ground is based on premises that he was dependent on deceased employee. Strictly, this claim cannot be upheld on the touchstone of Articles 14 or 16 of the Constitution. However, such claim is considered as reasonable and permissible on the basis of certain crisis occurring in the family of such employee who has served the State and dies while in service." 10. In the matter of "Umesh Kumar Nagpal vs. State of Haryana,[1994(4)SCC138], Hon'ble Supreme Court has observed that "The whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post much less a post for post held by the deceased. What is further, mere death of an employee in harness 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 6 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." The Hon'ble Court further observed "the compassionate employment cannot be granted after a lapse of a reasonable period which must be specified in the rules. The consideration for such employment is not a vested right which can be exercised at any time in future. The object being to enable the family to get over the financial crisis which it faces at the time of the death of the sole breadwinner, the compassionate employment cannot be claimed and offered whatever the lapse of time and after the crisis is over." Thus, appointment on compassionate ground as dependent of deceased government servant cannot be claimed, coming out of the slumber at any point of time. The right, if any flowing from the relevant Rules, has to be exercised within reasonable time. 11. As noticed above, the petitioner no.1 was not even born as on the date the government servant died while in service. He has been adopted by the widow after a lapse of about 20 years from the death of the deceased government servant, therefore, he cannot be treated to be a member of the family of the deceased government servant entitle for appointment within the meaning of Rule 2(f) of the Rules of 1975. It is true that Rule 5 of the Rules of 1975 provides that in the event of non availability of 7 any of the members of the family being unqualified or minor is found suitable or eligible for immediate employment then, such case may be considered immediately when he becomes qualified or eligible for such employment. But then, it pre supposes the existence of a person entitle to claim appointment being a dependent of the deceased government servant as on the date of his death. Any person who has come into existence after the death of the government servant cannot claim appointment under the Rules of 1975 either as dependent of the deceased government servant or as his close relative nominated by the widow of deceased government servant . There is yet another aspect of the matter, the appointment on compassionate ground are offered to the dependent of the deceased government servant so as to extend immediate financial help to the bereaved family,but, in the instance case, the family of the deceased government servant has survived for all these years without any such help, therefore, the crisis period is already over and after lapse of about 42 years since the death of the government servant, granting any appointment on compassionate ground to the person who had come into existence after lapse of about 7 years from the death of the government servant is against the very object and spirit of the provisions incorporated in the Rules of 1975. It is further important to note that even under the Rules of 1975 in absence 8 of any member of family being eligible for getting benefit , the appointment to a close relative could have been granted only with the specific approval of the Department of Personnel. Thus, appointment to a close relative in terms of proviso to Rule 2(f) is an exception carved out, therefore, a person falling in such category is not entitle to claim an appointment as a matter of right. That apart, now the Rules of 1975 stand repealed and substituted by the Rajasthan (Compassionate Appointment of Dependent of Deceased Government Servant) Rules, 1996 which do not envisage any appointment to the close relative of the deceased government servant in any circumstances. Thus, viewed from any angle, the petitioner no.1 is not entitle to claim appointment on compassionate ground either under the Rules of 1975 or the Rules of 1996. 11. In the result, the writ petition fails, the same is hereby dismissed .No order as to costs. (SANGEET LODHA),J.