SBCWP NO.607/2007. 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R S.B. CIVIL WRIT PETITION NO.607/2007. Naresh Kumar Yadav Vs. State of Rajasthan & Ors. Date of Order : 18/8/2008. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Mahendra Goyal for the petitioner. Shri G.S. Gill, Additional Advocate General with Shri Jagmeet Singh for the State. **** BY THE COURT:- Reportable This writ petition seeks to challenge the order of the government dated 10/3/2000 whereby the respondents refused to provide employment to the petitioner in terms of their Circular dated 29/10/1976. 2) Learned counsel for the petitioner has challenged the aforesaid order on the premise that government by the aforesaid policy circular decided to provide employment to atleast two persons of the dependants of the deceased/wounded army personnel subject to fulfilling eligibility criteria of educational qualification etc. 3) Shri Mahendra Goyal, learned counsel for the petitioner argued that the petitioner applied for appointment on the post of Teacher Grade-III. He was having qualification of B.A. & B.Ed. and even fulfilled the eligibility criteria for appointment on SBCWP NO.607/2007. 2 the post of Physical Teacher under Rajasthan Education Subordinate Service Rules, 1971. This Court vide its earlier order dated 4/5/1998 passed in his earlier writ petition directed the respondents to consider case of the petitioner and decide his representation within six months. But when nothing was done, petitioner filed contempt petition and it was thereafter that representation of the petitioner was dismissed by the impugned-order. Learned counsel argued that respondents have erred in law in rejecting representation of the petitioner on the premise that as against 12 adverstised vacancies for the year 1998-99, petitioner's merit was at Sr.No.50 and in O.B.C. Category his merit was at Sr.No.228. It was argued that Circular of the government dated 29/10/1976 was issued with an object to provide employment to the dependants of the deceased/wounded army personnel and the respondents have failed to apply their mind to the objectives aforesaid. Learned counsel therefore submitted that the respondents be directed to provide appointment to the petitioner. 4) Shri G.S. Gill, learned Additional Advocate General appearing for the State contested the writ petition and argued that the Circular dated 29/10/1976 was issued only with a view to providing relaxation to the dependants of the deceased/wounded army personnel of the requirement to get themselves enrolled with the Employment Exchange. When the petitioner applied pursuant to the advertisement, his case was required to be considered as per his merit position and in the relevant year when he applied, his name could not find SBCWP NO.607/2007. 3 place sufficiently high in the merit to entitle him for appointment. Learned Additional Advocate General submitted that though circular of the government dated 29/10/1976 still holds good but this Court in its earlier order dated 4/5/1998 required the respondents to consider the case of the petitioner as per latest instructions on the subject and there being none, representation of the petitioner was liable to be rejected because he could not otherwise secure merit. Shri G.S. Gill, learned Additional Advocate General submits that though the government has issued Circular dated 29/10/1976, but there is no corresponding amendment in the rules to entitle the petitioner for appointment in direct recruitment quota. Petitioner cannot therefore secure appointment on the strength of said circular. 5) I have given my earnest consideration to the rival submissions and perused the records. 6) Circular of the Government dated 29/10/1976 indicates that this was issued pursuant to the policy decision of the government to provide succur to the family of martyrs and those who are permanently incapaciated while in action in defence of the nation. It provided that the government shall give priority to the dependants, upto two in number, for appointment in Class-III and Class-IV service provided that they fulfill requisite eligibility criteria. What was required of the respondents was to examine whether case of the petitioner fell in either of the two categories and in this case, whether he was member of the family of a permanently incapaciated army SBCWP NO.607/2007. 4 personnel? Petitioner has placed on record the document Ann.2, which is disability certificate issued by the Assistant Record Officer for Officer Incharge Records of the concerned unit certifying the fact that Shri Subey Sing Yadav, father of the petitioner, was wounded in an action "operation Crust" in Sikkim on 9/4/1975 and the Gallantry award was given to him. His injury was diagnosed as "Gun Shot Wound Knee Right and Gun Shot Wound Right Leg I/C Communicated Fracture Tibia (Optel)". Disability was assessed for life and attributable to military service in operational area. In fact, Assistant Record Officer for Officer Incharge Records vide letter dated 15/10/1998 addressed to the Zila Sainik Welfare Office, Alwar recommending for giving reservation to the widow and dependants of deceased government servants as was being given to dependants of ex-servicemen by the State Government as well as Central Government for Group 'C' and 'D' post. It was therefore requested to take up the matter with the government. Facts of the case indicate that father of the petitioner was honoured with prestigious Shorya Chakra. 7) Petitioner in para 3 of the writ petition has given the particulars of following persons, who, pursuant to the aforesaid circular of the government have been provided employment:- i. Shri Thana Ram brother of late Shri Vishma Ram who died in "Operation Pawan" Sri Lanka, in Grade-III. ii. Shri Bhanwar S/o late Shri Jahar Mal (Indo-Pak War, 1971) in Grade-IV. iii. Shri Mahipal Singh S/o Shri Vidyadhar Singh (Indo- Pak War, 1971) on the post of Teacher Gr.III. 8) From the aforesaid cited case, which have not SBCWP NO.607/2007. 5 been denied by the respondents in their counter affidavit, it is evident that appointment has been granted to the dependant of a permanently incapaciated army personnel even in the Education Department. Mahipal Singh, one of the aforesaid persons, was appointed on the post of Teacher Grade-III. The contention of the learned Additional Advocate General that since there is no corresponding amendment in the rules, such appointment cannot be granted to the petitioner therefore is liable to be rejected. 9) The respondents, as is evident from the impugned-order as also from their counter affidavit have utterly failed to apply their mind to the laudable object for which, the Circular dated 29/10/1976 was issued. Government still persists with the aforesaid circular which is evident from the affidavit of D.E.O. (I) Secondary Education, Alwar filed before the court on 7/7/2008 wherein he stated that as per the information made available by Labour and Employment Department of the Government vide letter dated 18/5/2008, the circular dated 29/10/1976 issued by the State Government is still effective and in force. In the face of this, the contention that petitioner could not be appointed because he did not have merit, cannot be accepted. The government having come out with a policy to provide appointment to the dependant member of permanently incapaciated army personnel cannot deny such appointment. It is under an obligation to provide such appointment to the claimant otherwise makes out a case, whose claim stands on a somewhat higher footing than the depandants of SBCWP NO.607/2007. 6 civilian government servants dying while in service. What was therefore required of the government was to examine the case in the light of the circular aforesaid and not to reject the claim merely on the premise that merit of the petitioner was quite low because father of the petitioner was assessed disabled for life which was attributable to the military service in operational area. 10) The writ petition is therefore disposed of with the direction to the Secretary, Department of Education, Government of Rajasthan, Jaipur to consider case of the petitioner in the light of the observations aforesaid and determine whether father of the petitioner was permanently incapaciated in military service and if it is found established, grant appointment to the petitioner on the post of Teacher Grade-III in case he is found eligible from the date last candidate in the selection process in question for the year 1998-99 was appointed, though with notional benefits. In case, the petitioner is not able to establish that his father was permanently incapaciated, pass a speaking order in accordance with law. Compliance of the judgment shall be made within three months from the date copy of the same is produced before the respondents. (MOHAMMAD RAFIQ), J. anil/-