Narendra Singh Vs. State of Rajasthan and ors. - Court Judgment

B.S. Chauhan, J.

1. In view of the conflicting decisions rendered by the learned Single Judges regarding the ambit and scope of Rule 5 of the Rajasthan (Recruitment of Dependents of Government Servant Dying while in Service) Rules, 1975 (hereinafter as 'the Rules'), the learned Single Judge, vide order dated 25.7.1997, has referred the matter to the Larger Bench for resolving the controversy under proviso (c) to Rule 55 of the Rajasthan High Court Rules, 1952. The issue referred to reads as under:

Whether in a situation where both the spouses, i.e., husband and wife are in Government service and in the event of death of one, the other still remaining in Government service, whether the dependents as defined in the definition of 'family' under Rule 2(f) of the Rajasthan (Recruitment of Dependents of Government Servants Dying while in Service) Rules, 1975 is entitled to the employment on the ground that be the death of his father or mother, any one case may be, he be treated as a dependent of the deceased Government employment irrespective of the fact that his father or mother was an Government employee in service at the time of death of the other spouse and whether the Rajasthan (Recruitment of Dependents of Government Servants Dying while in Service) Rules, 1975 have been framed to give employment in such situation as well when one of the spouse remains and continues as Government servant at the time of the death of the other spouse and whether the family member of such deceased spouse is entitled to invoke the benefit of these Rules.

2. The petition reveals that the petitioner was having the requisite qualification for appointment to the post of Lower Division Clerk under the State Government and he applied for the benefit of the said Rules by giving him employment on compassionate ground because of the death of his mother late (Smt.) Damyanti Togar, who was working as the Assistant Teacher in the Education Department. The Department, vide order dated 13.10.1994 contained in Annexure. Rule 1, rejected the claim of the petitioner by stating that the petitioner was not entitled for the benefit under the Rules as he had been dependent on his father who is still in government service. The applicant is aggrieved of the said order and his submission has been that inspite of the fact that his father is still in the government service, he is entitled for the benefit of the said Rules. For the same, reliance has been placed on the judgment in: Gulshan Chopra v. State of Rajasthan and Ors. 1990 WLN (UC) 249, delivered by Hon'ble Miss Kanta Bhatnagar, J. (as she then was), wherein it has been observed as under:

5. The object of the framing the Rules was to give relief to the family of the deceased Government servants. For the purposes of the Rules, 'deceased Government servant' means a Government servant who dies while in service. The definition of 'family' reads as under:

Family means the family of the deceased Government Servant and shall include wife or husband, sons and unmarried or widow daughters and son/daughter adopted according to the provisions of law, by the deceased Government servant, who were dependant on the deceased Government servant.

6. There is force in the contention of the learned Counsel for the petitioner that the definition of the 'family' nowhere mentions complete dependency of the family member seeking an employment on the deceased Government Servant.

7. Rule 5 of the Rules deals with the recruitment of the Member of the family of the deceased is also relevant for the purpose. It provides that in case of 'deceased government servants' one member of his family, who is not already employed under the Central/State Government or Statutory Board/Organisations/Corporations owned or controlled by the Central/State Government, shall, on making an application for the purpose, be given a suitable employment in Government service without delay only against the existing vacancy, which is not within the purview of the State Public Service Commission, in realisation of the normal recruitment rules, provided such member fulfills the educational qualifications prescribed for the post and is also otherwise qualified for Government service.. ... .... ... ...

11. When father and mother of a person are in employment, it cannot be said that he is dependant only upon one of them. The relevant words are 'dependent on the deceased Government Servant'. It nowhere occurs that the family members seeking employment should be wholly dependant upon the Government Servant. If the interpretation of the word 'dependant' is taken to be in the way the respondents want it to be taken, then the family members of the deceased Government servant serving somewhere other than the places mentioned in Rule 5 of the Rules, shall not be entitled to any benefit under the Rules. There may be cases in which the husband and wife both are in Government service and the wife earns more than the husband and so much children would be more dependant on the mother than the father. If in such cases, the interpretation of the Rules is taken in the light as it has been done in Annexure. 2, the very purpose of framing the Rules would be frustrated.

3. The view taken in Gulshan Chopra's case was confirmed in D.B. Civil Special Appeal No. 100 of 1990, when the special appeal filed by the State was dismissed without issuing notice to the other party, i.e., the appeal was dismissed in limini. The order of the Division Bench is reproduced as under:

We have heard the learned Counsel for the parties and we find no force in the appeal. The judgment of the learned Single Judge is up-held. The appeal is dismissed.

4. However, the respondents have placed reliance on the judgment of the Hon'ble Mr. Justice B.J. Shethna dated 7.1.1997 passed in S.B. Civil Writ Petition No. 24/1996, wherein it has been categorically held that in case the father of the applicant is alive and capable to maintain his son, he may not be entitled for compassionate employment in case of death of his mother, who died while in service as it cannot be said that the son was dependant on his mother and not on his father.

5. Being confronted with these two divergent views expressed by the two Hon'ble Judges of this Court, the learned Single Judge has made this reference.

6. It is settled law that the rule of construction in such a case provides for purposive interpretation and the Apex Court has, time and again, held that a provision of a statute or rule should be interpreted in such a way as it serves the purpose for which the Rules have been framed. An interpretation for which may defeat the very purpose, is not permissible. (Vide: Employees State Insurance Corporation v. F. Fibre, Bangalore Ltd. : (1997)IILLJ739SC and Ichchapur Industrial Cooperative Society Ltd. v. Competent Authority, Oil and Natural Gas Commission and Anr. : (1997)2SCC42 .)

7. In: S. Gopal Reddy v. State of Andhra Pradesh : 1996CriLJ3237 , the Hon'ble Supreme Court has observed that while interpreting the statutory provisions, 'the text and the context of the entire Act must be looked-into.... The Court must look to the object which the statute seeks to achieve.... A purposive approach for interpreting the Act is necessary.

8. In: Gujarat State Tubes Ltd. v. Gujarat State Tubes Mazdoor Sabha and Ors. : (1980)ILLJ137SC , the Apex Court referred to the contents of: The philosophy and method of law: by Edgar Bodenhimier (page 474) wherein the learned Author has observed as under:

The Civil Law does not regard words as the sole basis of law but allows it to be modified by the purpose.

9. Similarly, in: Badeshwar Das v. State of Uttar Pradesh and Ors. : (1981)ILLJ140SC , the Supreme Court has observed as under:

We must re-interpret the Rules, to comport with Articles 14 and 16 by constitutionally acceptable construction,... We must strive to salvage the Rules. If need be by assigning a fresh sense, language permitting, which will fit the Rules into the 'fundamental rights' mould.... In short, while reading the rules, we must remember the Constitution.

10. Thus, while replying the quarry raised by the learned Single Judge, the aforesaid principles of interpretation are to be borne in mind and it becomes necessary to find out: what is the purpose and object of providing for the compassionate employment. This issue is no more res integra and has been considered by the Hon'ble Apex Court time and again. In: Sushma Gosain and Ors. v. Union of India and Ors. AIR 1989 SC 1976. the Hon'ble Supreme Court has observed as under:

The purpose of providing appointment on compassionate ground is to mitigate the hardship due to death of the bread-earner in the family. Such appointment should, therefore, be provided immediately to redeem the family in distress.

11. This view has further been reiterated and following in: Smt. Phoolwati v. Union of India and Ors. 1991 SC 469.

12. In: Umesh Kumar Nagpal v. State of Haryana and Ors. : [1994]3SCR893 , the Hon'ble Apex Court has considered the nature of the right which a dependant can claim while seeking employment on compassionate ground. The Court has observed as under:

It appears that there has been a good deal of obfuscation on the issue. As a rule, appointment in the public services should be made strictly on the basis of open invitation of applications and merit. No other mode of appointment nor any other consideration is permissible. Neither the Governments nor the public authorities are at liberty to follow any other procedure or relax the qualifications laid down by the rules for the post. However, to this general rule which is to be followed strictly in every case there are some exceptions carved out in the interests of justice and to meet certain contingencies. One such exception is in favour of the dependents of an employee dying in harness and leaving his family in penury and without any means of livelihood. In such cases, out of pure humanitarian consideration taking into consideration 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 in the rules to provide gainful employment to one of the dependents of the deceased who why be eligible for such employment. 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 concerned has to examine the financial condition of the 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 favorable treatment given to such dependant of the deceased employee in such posts has a rational nexus with the object sought to be achieved, viz., relief against destitution. No other posts are expected or required to be given by the public authorities for the purpose. It must be remembered in this connection that as against the destitute family of the deceased there are millions of other families which are equally, if not more destitute. The exception to the rule made in favour of the family of the deceased employee is in consideration of the services rendered by him and the legitimate exceptions, and the change in the status and affairs, of the remain engendered by the erstwhile employments which are suddenly upturned.... Unmindful of this legal position, some Governments and public authorities have been offering compassionate employment sometimes as a matter of course irrespective of the financial condition of the family of the deceased..The decision does not justify compassionate employment either as a matter of course.....The only ground which can justify compassionate employment is the penurious condition of the deceased's family.

The consideration for such employment is not a vested right.... The object being to enable the family to get over the financial crisis. (Emphasis added).

13. The same view has been reiterated in: Jagdish Prasad v. State of Bihar : (1996)ILLJ1105SC : Stole of Bihar v. Samsuz Zoha : (1996)IILLJ647SC ; Himachal Pradesh Road Transport Corporation v. Dinesh Kumar : (1996)IILLJ760SC ; and Hindustan Aeronautics Ltd. v. A. Radhiki Thirumalai : (1997)ILLJ492SC . It has categorically be held that compassionate employment cannot be claimed as a matter of course not being a vested right.

14. The concept of vested right has been explained by the Apex Court in: Bibi Sayeeda v. State of Bihar : AIR1996SC1936 ; wherein it has been described as under:

The word 'vested' is defined in Black's Law Dictionary (6th Edition) at page 1563, as 'vested', Fixed; accrued; settled; absolute; complete. Having the character or given in the rights of absolute ownership; not contingent; not subject to be defeated by a condition precedent.' Rights are 'vested' when right to enjoyment, present or prospective, has become property of some particular person or persons as present interest; mere expectancy of future benefits, or contingent interest alia property founded on anticipated continuance of existing laws, does not constitute vested rights. In Webster's Comprehensive Dictionary, (International Edition) at page 1397, 'vested' is defined as (L) aw held by a tenure subject to no contingency; complete; established by law as a permanent right; vested interests.

15. In: Haryana State Electricity Board and Anr. v. Hakim Singh : AIR1997SC3887 , the Hon'ble Apex Court placed reliance upon the judgments referred to above and observed that the object of providing for compassionate employment is only to relieve the family from financial hardship, therefore, an emeleorating relief should not be taken as opening an alternative mode of recruitment to public employment. (Emphasis added).

16. In: Haryana State Electricity Board v. Naresh Tanwar and Anr. 1996 (1) SCC 23, the Hon'ble Apex Court reiterated and followed the law laid down in Umesh Nagpal's case (supra) and directed the applicants involved therein to apply for employment on compassionate ground 'by giving full details of the family circumstances and the economic conditions.'

17. Thus, from the above referred cases, we reach to an inexcapable conclusion that the object and purpose of providing the employment on compassionate ground is to redeem the family which has lost its bread-earner and not to create any new mode of recruitment for dependents of the government servant and it cannot be claimed as a vested right.

18. Mr. G.K. Vyas has referred to and relied upon the judgment of this Court in: Smt. Usha Dwevedi v. State of Rajasthan RLR 1991 (2) 178. We fail to understand how the reference of the said case is relevant to determine the present controversy as the issue involved in such case was whether the rules are applicable in regard to the State Services falling within the purview of Rajasthan Public Service Commission and after considering the provisions of Rule 3 of the said Rules, it was held that the Rules are applicable except in the cases of five major State Services, i.e., Rajasthan Administrative Service, Rajasthan Police Service, Rajasthan Forest Service Rajasthan Judicial Service and Rajasthan Accounts Service. However, it requires some additional formalities, i.e., prior approval of the Rajasthan Public Service Commission etc.

19. Similarly, the judgment referred to by Mr. Vyas in the case of: Narendra Kumar Sharma v. State of Rajasthan and Ors. RLW 1991 (2) 182, has no bearing on the present controversy. The issue involved in that case had been: whether the employment under the said Rules can be denied to a person on the ground that his elder brother is already in the government service; and this was decided by holding that his case is to be considered for the reason that the person seeking employment is not dependant on his brother, rather he claims the service being dependant on the employee who died in harness and he, also, does not fall within the definition of 'family' as contained in the provisions of Rule 2(f) of the Rules.

20. In view of the aforesaid law, the issue referred has to be examined bearing in mind the factors of dependency and economic conditions of the family of the deceased. The 'dependency' may be tested by raising a hypothetical question as to whether the applicant, a seventeen years old person, not competent to maintain himself, could file a claim for maintenance under the provisions of Section 125 of the Code of Criminal Procedure, against his mother, who was in service and died in harness. The father, being natural guardian, could have been fastened with such a liability and not the mother at all. It is a case where the system of patriarchy is prevalent and father general is the 'Karta' of the family. Therefore, it cannot be said that an applicant can claim the benefit of the said Rules on the basis of the death of his mother who was in the government service if the father is still alive and in government service. There may be exceptional circumstances to this, where a case is pleaded and proved before the competent authority by placing substantial material to the effect that due to strained relationship, his parents had separated or they had taken the divorce by resorting to the legal proceedings and while living separately, the person claiming the benefit was solely dependant on the mother. Thus, as it is settled law that the purpose of giving compassionate employment under the Rules is only to give the financial aid to the family in grief and being not vested right, it cannot be claimed as a matter of course and if a person's financial condition is good, he can, also, be denied the benefit of these Rules. Public policy requires the recruitment in public offices by inviting applications and only in exceptional circumstances such a rule can be given a go bye. If the question is answered otherwise, it would mean to open the another mode of recruitment which is not only unwarranted but impermissible, also, as it could be violative of the mandate of Articles 14 and 16 of the Constitution of India. Moreover, the decision rendered by Hon'ble Miss Kanta Bhatnagar, J. in the aforesaid case, had been prior to the above referred decisions made by the Hon'ble Supreme Court wherein the purpose and object of such Rules has been described elaborately. In Nama Kishore v. State of Punjab : (1995)6SCC614 , the Hon'ble Apex Court has observed as under:

Under Article 141, the law declared by it is of a binding character and as commandful as the law made by a legislative body or an authorised delegatee of such body. The Court, as a wing of the State, is by itself a source of law.

21. The mandate of Articles 14 and 16 of the Constitution of India does not permit any kind of arbitrariness or discrimination except which falls within the ambit of the exceptions provided therein. The purpose of the Rules in question is only to provide the financial assistance to the family which has lost its bread-earner. Interpreting the said Rules for providing the employment to the dependant of the deceased-employee would be in flagrant violation with the said constitutional mandate.

22. Sub-rule (6) of Rule 6 of the said Rules provides that while making an application for compassionate employment, the applicant is bound to give the details of the financial condition of the family. Therefore, it cannot be said that such an employment can be claimed as a matter of right irrespective of the financial condition as not a single provision in the Rule can be treated as surplus.

23. In fact we are impressed by the submissions made by Mr. Singhvi-learned Counsel for the respondents-to the effect that the government has correctly understood how the provisions of the Act have created the confusion and the government took a decisions in proper perspective and issued the Circular. The State Government has issued a Circular dated 31.8.1994 contained in Annexure. Rule 2, according to which the father, being the head and 'Karta' of a family, shall be deemed to be responsible to maintain the children for the purpose of definition of 'family' as provided in Rule 2(f) of the Rules. Children would be dependant on him and unless unimpeachable circumstances are there to prove to the contrary, the children shall be dependant on the father. The Circular dated 31.8.1994 is in consonance with the spirit of the Rules and it cannot be said that it contravenes any of the provisions of the said Rules.

24. Thus, in view of the above, it is difficult to concur with the view taken by Hon'ble Justice Miss Kanta Bhatnagar. We are of the considered opinion that the view taken by Hon'ble Mr. Justice B.J. Shethna in the aforesaid case, laying down the law that in case the father is there to maintain the applicant, he is not entitled for the benefit at the moment of death of his mother, is sound and logical.

25. In this view of the matter, the Reference is answered in the negative by holding that where the father and mother both have been in the service, a person cannot claim the benefit of the Rules on the death of his mother unless he pleads and proves before the competent Authority that he had solely been dependant upon her and his father would not take the responsibility of his maintenance or his financial condition is such that he cannot afford to maintain him. We return the file of this case for being listed before the learned Single Judge for appropriate order.