1 SB Civil Writ Petition No.4777/2008 Smt. Premlata Acharya. vs. State of Raj. & Anr. S.B. Civil Writ Petition No.4777/2008 Smt. Premlata Acharya vs. State of Rajasthan and another. Date : 11.5.2009 HON'BLE MR. PRAKASH TATIA, J. Mr.Pradeep Choudhary, for the petitioner. Mr.VK Mathur, for the respondents - - - - - Heard learned counsel for the parties. The petitioner's husband was in service and died while in service and upon application submitted by the petitioner, she was given compassionate appointment under the Rajasthan Compassionate Appointment of Dependants of Deceased Government Servants Rules, 1996 (for short 'the Rules of 1996') vide order dated 27.10.1999 (Annex.P/1). It is alleged that in the proceedings for appointment of guardian for wards of deceased employee - husband of the petitioner, the Court of Additional District Judge, Barmer in 2 SB Civil Writ Petition No.4777/2008 Smt. Premlata Acharya. vs. State of Raj. & Anr. Civil Misc. Case NO.39/2003, appointed one Swaroop Chand as guardian of the wards of deceased employee who are five in number and who were of the age of 12, 10, 8, 6 and 5 years respectively, obviously in the year 2003 as the petition for appointment of guardian was filed in the year 2003. When this fact came to the notice of the employer, a show cause notice was issued to the petitioner on 7.5.2008 asking her to explain why her appointment given on compassionate appointment may not be terminated in view of the newly added Sub-rule (2) in Rule 5 of the Rajasthan Compassionate Appointment of Dependants of Deceased Government Servants (Amendment) Rules, 2001 (for short 'the Rules of 2001'). Then the petitioner submitted reply to said show cause notice, copy of which has been placed as Annex.8. After considering the petitioner's reply and relying upon the findings recorded by the civil court in civil misc. case no.39/2003, it has been held by order dated 4.6.2008 that since the petitioner failed to maintain and look after the wards of the deceased employee, therefore, her services are liable to be terminated in view of Rule 5(2) of the Rules of 2001. Hence, this writ 3 SB Civil Writ Petition No.4777/2008 Smt. Premlata Acharya. vs. State of Raj. & Anr. petition has been filed by the petitioner being aggrieved against the order dated 4.6.2008 (Annex.9). The respondents submitted reply to the writ petition and pointed out that though the petitioner was given appointment under the Rules of 1996 but then Rules of 2001 came into force and furthermore, the Rules of 2001 have been amended and sub-rule (2) under Rule 5 was added to see that the wards of deceased employees may not be neglected by the persons who get the appointment on compassionate ground. It is submitted that though the Sub-Rule (2) of Rule 5 was not in the Rules of 1996 or even in the Rules of 2001 as enacted but the Sub-Rule (2) of Rule 5 has been inserted in the Rules of 2001 and the petitioner being in government service and was appointed on compassionate ground, therefore, the petitioner can be removed from service for violation of Rule 5(2) of the Rules of 2001. Learned counsel for the respondents relied upon the judgment of the Division Bench of this Court delivered in the case of Board of Rajasthan & Anr. vs. Rajendra (D.B. Civil Special Appeal 4 SB Civil Writ Petition No.4777/2008 Smt. Premlata Acharya. vs. State of Raj. & Anr. No.635/2000) and connected appeals decided on 19.2.2001. I considered the submissions of learned counsel for the parties and perused the facts of the case and decision given by the Division Bench. I also perused the Rules of 2001 having saving and repealed clause which saved all actions taken or done under the Rules of 1996. It is not in dispute that the husband of the petitioner died before the Rules of 2001 came into force. The petitioner was given appointment under the Rules of 1996 and her appointment is saved by repealing and saving clause made under the Rules of 2001. Sub-Rule 2 was inserted in Rule 5 of the Rules of 2001 by notification dated 27.2.2001 published in Gazette on 28.2.2001. Sub-Rule 2 of Rule 5 provides that “Appointment under these Rules shall be given on the condition that the person appointed on compassionate ground shall maintain properly the other family members who were dependent on the deceased Government servant and on furnishing an undertaking in writing that he/she shall maintain properly the other family 5 SB Civil Writ Petition No.4777/2008 Smt. Premlata Acharya. vs. State of Raj. & Anr. members who were dependent on the deceased government servant.” It is clear from the said portion of Sub-Rule (2) that the appointment could have been given under the Rules of 2001 only on furnishing an undertaking in writing by the person seeking appointment under the Rules of 2001 that he/she shall maintain properly the other family members who were dependent on the deceased government servant. Admittedly, the petitioner was appointed prior to coming into force of the Rules of 2001 and much before Sub-Rule (2) was inserted in Rule 5 and was an appointment without there being any undertaking of the petitioner as required by sub- rule (2) of Rule 5 of the Rules of 2001. There is no force in the submission of learned counsel for the respondents that because of repeal and saving clause made under the Rules of 2001, the appointment be treated under the Rules of 2001 and, therefore, appointment given under the Rules of 1996 shall be subject to the conditions of appointment made in the Rules of 2001. Where the employee gets the appointment, may it be under the dependent Rules, he gets the employment with such 6 SB Civil Writ Petition No.4777/2008 Smt. Premlata Acharya. vs. State of Raj. & Anr. conditions which may dis-entitle him to continue on the post as were in existence when he/she were appointed. Such an employee can be removed from service after following procedure of law for removing from service on committing of any misconduct or wrong for which one can be removed. In the judgment of Rajendra (supra), the controversy was entirely different. There were two controversies one whether Section 5 of the Limitation Act applies in the matter for grant of appointment on compassionate ground. The Division Bench held that Section 5 of the Limitation Act has no application in such matters. The second question was whether the application filed by the applicant on account of death of employee prior to coming into force of the Rules of 1996 are required to be dealt with and decided in accordance with the Rules of 1996 or under the Rules of 1975. The Division Bench of this Court after taking into account the facts of the case, held that such applications are required to be decided under the Rules of 1996. The relevant facts in the said case were that the father of the applicant died on 17.2.1995 and on that day, the 7 SB Civil Writ Petition No.4777/2008 Smt. Premlata Acharya. vs. State of Raj. & Anr. Rules of 1975 were in force. However, the applicant applied for appointment on compassionate ground on 18.8.1998 and on that day, the Rules of 1996 already came into existence and the Rules of 1975 were repealed. The Division Bench of this Court after considering Rule 11 of the Rules of 1996 held that the Rules of 1996 shall have effect notwithstanding anything to the contrary contained in any rules, regulations or orders in force at the commencement of the Rules of 1996. After taking into account all these aspects of the matter, the Division Bench held that thus from all point of view, the case of the applicant shall be governed by the Rules of 1996 and it is wrong to hold that the right accrued in favour of the applicant under the Rules of 1975 obviously, on happening of the death of the applicant's father. In view of the above, it is clear that on the day when the application was submitted, the Rules of 1996 were in force, therefore, the Court held that said application shall be decided as per the Rules of 1996. The view expressed by the Division Bench deals with entirely different subject matter. But here in this case, Sub-Rule (2) was inserted in Rule 5 8 SB Civil Writ Petition No.4777/2008 Smt. Premlata Acharya. vs. State of Raj. & Anr. in the year 2001 and the petitioner has not been given appointment under the Rules of 2001 and particularly after obtaining any undertaking from the petitioner to comply with the condition that she is bound to maintain the wards of the deceased. Otherwise also, the petitioner in her reply to show cause notice has shown her ignorance about the order passed by the Court of Additional District Judge, Barmer under the Guardian and Wards Act which was passed ex-parte. In that view of the matter, even if the petitioner would have been governed by the amended Rule 5(2), then she should have been opportunity to prove that whether she is maintaining the wards of the deceased or not. In view of the above reasons, this writ petition is allowed and the order dated 4.6.2008 is quashed and set aside. The petitioner since is in service in view of the order of this Court dated 21.7.2008, therefore, no further order is needed. (PRAKASH TATIA), J. S.Phophaliya