1 S.B.CIVIL WRIT PETITION NO.4535/2007 (Mohd. Fahim Rizvi Vs. State of Rajasthan & ors.) DATED : 20th August 2007 HON'BLE MR.JUSTICE DINESH MAHESHWARI Mr.Vinit Sanadhya for Mr.Manish Shishodia for the petitioner The petitioner has preferred this writ petition being aggrieved of the communication dated 13.04.2006 (Annex.11) whereby the respondent Rajasthan State Road Transport Corporation ('RSRTC') has refused to entertain the application seeking compassionate appointment in place of his deceased father on the ground that the application was made belatedly after about 7 years and 10 months whereas such application is required to be made within 90 days from the date of demise of the employee; and that there is no provision under the Rules to keep the matter pending till the son of the deceased employee would attain majority. The petitioner has averred in the writ petition that his father Mohammed Rafiq Chhipa remained in service of the respondent RSRTC from the year 1976 till the year 1998 when he died due to the injuries sustained in a road accident while travelling in a Roadways bus on or about 10.03.1998; that mother of the petitioner applied on 23.03.1998 (application Annexure-7) for grant of compassionate appointment in the name of her children and stated that 'till her children namely 2 petitioner attains majority one post for compassionate appointment may be kept reserved'; that the petitioner's mother filed another affidavit on 31.05.1999 requesting to keep the right for compassionate appointment reserved for her children in her place; that the petitioner's mother was the only person supporting him and other siblings, seven in number, by undertaking minor household jobs; that the petitioner attained majority only in the year 2004 and an application was filed alongwith affidavits by the petitioner's mother and major siblings conveying no objection for appointment of the petitioner (the petitioner has stated that copy of the application was not readily available and has filed copies of affidavits dated 17.01.2006, collectively marked as Annexure 8); that the petitioner has completed Senior Secondary in the year 2004 and has also completed second year TDC in the year 2006 and is, thus, eligible to be granted compassionate appointment in place of his father. According to the petitioner, it was to his shock and surprise that by the impugned communication dated 13.04.2006 (Annex.11) the respondents declined to grant him appointment on the ground that the application for employment on compassionate basis had been filed after 7 years 10 months and 20 days from the death of the employee and under the Rajasthan Compassionate Appointment of Dependants of Deceased Government Servants Rules, 1996, 3 the limitation for filing of the application was 90 days; and there was no rule for keeping the case pending until the person attains majority. Questioning the validity of the communication dated 13.04.2006, the petitioner has contended that the respondents have failed to consider that even if there was a limitation for filing of the application within 90 days, indisputably, such application was filed on 23.03.1998 but the same has neither been referred to nor considered; and that there is no legal basis for denying appointment to the petitioner especially when the respondents have not stated that there is no vacancy or that the petitioner does not fulfill the requisite qualification. Having heard learned counsel for the petitioner and having examined the material placed on record, this Court is satisfied that this writ petition remains absolutely bereft of substance and does not merit admission. Compassionate appointment, an exception to the general rule of open recruitment, is intended to meet the immediate financial problems, if so faced, by the bereaved family of the deceased employee. The very object of providing compassionate appointment to a dependent of deceased employee who dies in harness is to relieve the family of hardship and distress caused due to sudden demise of the bread-earner of the family. Such provisions for compassionate appointments, by their very nature, are in exception to the 4 general procedure prescribed for making appointments; and are required to be construed and applied keeping in view the fact that by making such appointment other eligible persons are deprived of their chance to seek employment. The Hon'ble Supreme Court in the case of Director of Education (Secondary) Vs. Pushpendra Kumar : (1998) 5 SCC 192 has pointed out thus: “The object underlying a provision for grant of compassionate employment is to enable the family of deceased employee to tide over the sudden crisis resulting due to death of the bread-earner which has left the family in penury and without any means of livelihood. Out of pure humanitarian consideration and having regard to 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 for giving gainful appointment to one of the dependent of the deceased who may be eligible for such appointment. Such a provision makes a departure from the general provisions of making appointment by following a particular procedure. Since such a provision enables appointment being made without following the said procedure, it is in the nature of an exception to the general provisions. An exception cannot subsume the main provision to which it is an exception and thereby nullify the main provision by taking away completely the right conferred by the main provision. Care has, therefore, to be taken that provision for grant of compassionate employment, which is in the nature of an exception to the general provisions, does not unduly interfere with the right of other persons who are eligible for appointment to seek employment against the post which would have been available to them, but for the provision enabling appointment being made on compassionate grounds of the dependent of a deceased employee.” The fact situation of the present case does not even remotely make out any case for according compassionate appointment. 5 The application made by the petitioner's mother on 23.03.1998, sought to be relied upon as the basis of the claim in this petition, could hardly be treated to be a valid and bona fide application for compassionate appointment. By way of such application, mother of the petitioner informed the respondent RSRTC that she was legally wedded wife of the deceased employee and was entitled to claim all the legal benefits; and while giving out the names of her seven children stated that except her son Mohammed Mehshar and daughter Obeda, other children were minors and that her children were completing their education and, therefore, she would request the department to reserve the right for service in place of her late husband as per rules as and when her children would be in position to work; and to settle all the claims and benefits as early as possible. In the supporting affidavit, age of the children has been stated showing that Mohammed Mehshar, the elder son of the deceased employee, was 24 years of age whereas Obeda, elder daughter of the deceased employee, was 19 years of age at the time of making of the application. Significantly, not a single word has been stated about employment status of those major children. One of the essential ingredient for any such bona fide application that none of the relevant dependents of the deceased employee was in regular employment, is conspicuously missing. Financial status of the family has also not been stated. 6 Even if it be assumed that wife of the deceased government servant was not in a position to take up any job herself, there is nothing on record to show as to what was the hitch in relation to the major son of the deceased employee, if at all the family was in need of compassionate appointment while looking for a source of livelihood. The petitioner is not correct in his assertion that in the said application, his mother proposed that until the petitioner attains majority, one post for compassionate appointment be kept reserved. As noticed above, while complete and relevant facts were not stated in the said application, the applicant put forward the request that a right of service in the department may be reserved; and such alleged ‘right of service’ was proposed to the used as and when her children would be in a position to work. Apart that the application has not been made in relation to the petitioner only, as incorrectly suggested in this writ petition; and yet apart that the application is lacking in material particulars, the proposition stated therein, to reserve the right of appointment, is not countenanced by law. The application as made on 23/24.03.1998 cannot be treated to be a valid application for compassionate appointment nor could the petitioner or his family be acceded a right that for the purpose of such compassionate appointment, the department would be obliged to keep a post vacant till they would choose to take up such engagement at their sweet will. 7 The petitioner has averred about his mother filing another affidavit on 31.05.1999 but no such affidavit has been placed on record. The petitioner has placed as Annexure-8 certain affidavits dated 17.01.2006 including the affidavits of the aforesaid Mohammed Mehshar and Ms. Obeda Bano, respectively 32 and 28 years of age, but again, nothing has been stated about their job and working. Mohammed Mehshar, the elder son of the deceased employee, has strangely stated in his affidavit as if his brother is being appointed in place of his father and as if such appointment was a fait accompli; however, the said son of the deceased employee has conveniently avoided to state anything regarding his own job and earnings. In the fact situation of the present case, this court is clearly of opinion that it shall be unjust for the other eligible unemployed persons if a post is permitted to be taken over by the petitioner only because he is son of the deceased employee irrespective of the fact that the application seeking compassionate appointment was made by him more than 7 ½ years after death of the employee concerned. Secondary School Certificate of the petitioner (Annex.9) gives out his date of birth as 27.01.1986 whereas the affidavits filed in support of the application (Annexure-8) were sworn only on 17.01.2006. Thus, it is clear that the petitioner made the application nearly two years even after his attaining majority. 8 It is obvious that the petitioner is labouring under the fundamental misconception as if compassionate appointment is akin to the rights of succession and as if the employer is bound to provide compassionate appointment whenever a member of the family of the deceased employee would choose to ask for the same. As noticed above, the very purpose of providing compassionate appointment is to help a family in distress and else, is not intended to be a superior mode of recruitment over and above the rules nor invests the dependants of the deceased employee with any such right as of succession. There appears no reason to issue any writ, order, or direction at the instance of the petitioner. The petition fails and is, therefore, rejected. (DINESH MAHESHWARI),J. MK