CW 7719/06 [1] IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH S.B. Civil Writ Petition No.7719/06 Annu Mewara alias Anokhi Bai Versus The Secretary, Panchayati Raj Department & Ors. DATE OF ORDER : 10/02/2009 HON'BLE MR. JUSTICE AJAY RASTOGI Mr. Bharat Yadav, for petitioner Mr. Pradeep Kalwania, Addl. Govt. Counsel, for respondents *** Widow has approached this court with the grievance that despite being eligible for compassionate appointment on account of death of her husband, her application submitted way back on 23rd October, 2001 was arbitrarily rejected by respondents on 18th June, 2005 on the premise that there was no vacant post available in Zila Parishad, Bundi in the cadre of Class IV for consideration of her candidature for appointment Rajasthan Compassionate Appointment of Dependants of Deceased Government Servant Rules, 1996 (“Rules, 1996”). Husband of petitioner late Shri Ramswaroop Mewara, while in service holding post of Teacher Gr.III, died on 16th September, 2001 and immediately thereafter, she submitted application on 23rd October, 2001. However, without any CW 7719/06 [2] justification, application was kept pending by the respondents for almost four years and was rejected vide order Ann.2 dt.18th June, 2005 only on the premise that there is no post of Class IV available in Zila Parishad, Bundi, against which her candidature could be considered for appointment. Counsel for petitioner submits that her husband was employee of the Government of Rajasthan and was serving in the Department of Education and merely because at one point of time the Government for its administrative convenience transferred administrative control of Primary School Teacher to the Panchayati Raj institution that will not hold him to be employee of the department of Zila Parishad, Bundi and her application was to be considered against available vacant post in the department and not in Zila Parishad, Bundi who was holding administrative control and even under the scheme of Rules, 1996, every head of the department/head of the office has been casted with an obligation to consider candidature of dependent for appointment as far as possible in his own department and in such circumstances, manner in which application was rejected is totally CW 7719/06 [3] arbitrary and not in conformity with Rules, 1996. Respondents have filed reply to the writ petition and the only fact which has been averred is that since there was no post in Zila Parishad, Bundi, her candidature could not have been considered and the matter was sent to Kota Division also for consideration vide letter dt. 20th September, 2004 but there was no post in Kota Division also where matters for compassionate appointment are pending consideration. Before examining the controversy, this court directed the respondents vide order dt.6th January, 2009 to file affidavit specifying the cadre strength of Class IV and persons who were appointed on substantive basis in the cadre of Class IV, in response whereof affidavit has been filed by respondents, which is completely vague and evasive. But document has been placed for perusal which shows that persons were appointed in the cadre of Class IV, namely Mahaveer Meena in Zila Parishad, Bundi on 28th November, 2005, Mahaveer Prasad Sharma on 3rd April, 2002 in Panchayat Samiti, Nainwa, Mahaveer Prasad Bairagi on 26th July, 2006 in Panchayat Samiti, Nainwa, Mishri Bai on 14th July, 2008 in Panchayat Samiti, CW 7719/06 [4] Talera, Shyam Bihari Saini on 22nd March, 2002 in Panchayat Samiti Keshraipatan, Nandlal Bheel on 4th September, 2003 in Panchayat Samiti, Hindoli. All of them were appointed in the Cadre of Class IV after submission of her application on 23/10/01 seeking compassionate appointment. Under Scheme of Rules, 1996 the object is to provide financial assistance to the dependents of the deceased who died in harness; and on account of untimely death of their breadwinner, dependent family of the deceased needs social protection. In fact, the Rule making authority was more conscious that atleast the widow should not suffer despite the fact that under R.5 if any dependent is in service of State Government or Central Government or its organization, other dependents are not eligible for appointment, but at the same time, widow has been considered to be an exception and if other dependents covered U/r 2(c) of Rules, 1996 are in service, yet widow if inclined to seek appointment, she should not be denied of appointment. R.10(5) of Rules, 1996, casts an obligation upon the Head of Department to consider applications for appointment to the dependent of deceased government servant as far as possible in its own department and in either case, pending CW 7719/06 [5] application be sent to the State Govt for appointment in its other department. Since the deceased servant was employee of State Govt, and it is ultimately responsibility of the State Government to consider for employment under Scheme of Rules, 1996 in its true spirit. In instant case, immediately after death of her husband, the widow submitted application but after keeping it pending for almost four years, it was rejected on the premise of no posts being available in Zila Parishad vide order dt. 18/06/05 without looking to the fact that posts were available – against appointments, as pointed out herein above, were made even after submission of application by petitioner seeking appointment; hence denial of appointment to her in the facts & circumstances of the case cannot be appreciated by this Court. Government Counsel has tried to convince this court that vide Circular dt.27th December, 2001, distinction was made among two different Heads created by the department, under which applications seeking compassionate appointment could be considered. Suffice it to say that it may be their internal management for better administration but once posts in the cadre of Class IV were available in Zila Parishad, Bundi, CW 7719/06 [6] itself, its consideration should not have prevailed upon depriving of legitimate right of an incumbent seeking appointment. It is a case where the widow was eligible to be considered for compassionate appointment in the year 2001 but has been deprived whereof only because of lapses being committed by State functionaries for one reason or the other, which totally smacks of arbitrary action on their part in rejecting her application – details whereof are mentioned above, this Court considers it proper to impose costs of Rs.10,000/- recoverable from defaulting officer. Consequently, writ petition succeeds and is hereby allowed with costs of Rs.10,000/-. Order dt.18/06/05 (Ann.2) is hereby quashed & set aside. Respondents are directed to consider the petitioner for appointment against suitable post under Rules,1996 alongwith consequential notional benefits from the date of her application. Compliance be made within two months. [AJAY RASTOGI], J. FRBOHRA/K.Khatri/7719CW06-10-2FRB.doc