RAFIQ, J. - (1.) HEARD learned counsel for the parties.
(2.) THIS writ petition has been filed by the widow of employee of respondent who was serving them as Bastawardar, a class of employee. He while serving died in harness on 24/11/1997. The petitioner submitted an application to the respondents on 4/12/1997 claiming appointment for her son on the post of Class- IV employee on compassionate ground. The respondents vide letter dated 16/1/1998 required the petitioner to submit an application on prescribed proforma. Petitioner thereupon submitted the application on prescribed proforma on 26/2/1998 to respondent No. 1 namely-District & Sessions Judge, Bharatpur. Request of the petitioner for appointment to her son was declined by respondent No. 1 vide communication dated 3/3/1998 informing her that it was not possible to give appointment to her son on compassionate ground however if petitioner herself was willing to get the appointment, she could within three days of the receipt of the said letter, submit the application. The petitioner on 5/3/1998 itself submitted the application and it was on that basis that she was appointed by the District & Sessions Judge, Bharatpur on 1/4/1998 on compassionate ground. Though, this appointment was made on compassionate ground but she was given appointment for a period of six months on probation basis in the regular pay scale of 2550-55-2660-3200. It is the common case between the parties that appointment of the petitioner was extended from time to time and lastly vide order dated 18/7/2001 (Ann. 6) upto 30/9/2001. Thereafter, in September, 2001, services of the petitioner were terminated by the Court of learned Special Judge (Dacoity Affected Area), Bharatpur in purported compliance of the order dated 9/7/2001 passed by the Registrar General Rajasthan High Court, Jodhpur and order dated 17/8/2001 of the District & Sessions Judge, Bharatpur. Hence, this writ petition. Shri D. C. Gupta, learned counsel for the petitioner has argued that appointment of the petitioner was made on probation basis and also on compassionate ground. When the probation period expired, services of the petitioner being found satisfactory, were extended and, therefore, her services could not be brought to an end in the summary manner which has been done without providing any opportunity of being heard. Only reason that has been cited by the respondents is that her services have been terminated in compliance of the instructions issued by the Registrar General, Rajasthan High Court in his letter dated 9/7/2001 addressed to the District & Sessions Judge, Bharatpur and all the District Judges of the subordinate courts. It was argued that the aforesaid circular of the Registrar General refers to the judgment of the Division Bench of this Court in Board of Revenue vs. Rajendra : RLR 2001 (1) 500, on the strength of which, the Registrar General in his letter dated 9/7/2001 stated that if any appointment has already been made in contravention of the law laid down by Hon'ble High Court and the provisions contained in Rajasthan Compassionate Appointment of Dependants of Deceased Government Service Rules, 1996 (for short the "rules of 1996"), the term period of such appointees may not be further extended and a complete factual report of such appointments be sent to the High Court. Learned counsel submitted that the petitioner submitted the application for compassionate appointment on 4/12/1997 within ten days of the death of her husband. Learned counsel has relied on the judgment delivered at the Principal seat of this Court in SBCWP No. 4538/2001 (Manoj Kumar Goyal vs. State of Rajasthan & Ors.) in which case, petitioner who too was appointed on compassionate ground was removed in purported compliance of the said circular of the Registrar General dated 9/7/2001 and this Court quashed the order of termination with all consequential benefits. Shri A. K. Sharma, learned counsel appearing for respondents has opposed the writ petition and submitted that since appointment of the petitioner was made in violation of the provisions of the Rules of 1996, her services were not extended beyond 30/9/2001. She was initially appointed for only six months and thereafter that period was extended from time to time and as such, the appointment cannot be taken to be regular in any manner. The Division Bench in Rajendra Kumar supra as also in the case of Jayant Kumar Jain vs. State of Raj. & Ors. : RLR 2001 (1) 441 = (RLW 2001 (2) Raj. 808) interpreted Rule 10 (3) of the Rules of 1996 and held the same to be mandatory. At the relevant time, application for appointment on compassionate ground was made was required to be made within 90 days from the date of death of the government servant concerned. In the present case, application was made by the petitioner on 23/3/1998 and by that time, 68 days had already elapsed and, therefore, the application was time barred. Learned counsel for the respondents argued that since the appointment itself was made in contravention of the mandatory rule, there was no requirement of providing any opportunity of hearing to the petitioner. The writ petition therefore be dismissed. I have given my thoughtful consideration to the rival submissions advanced by the learned counsel for the parties and perused the material forming part of the petition as well as the case law cited on the subject-matter of controversy. This Court in Board of Revenue vs. Rajendra and Jayant Kumar Jain vs. State of Raj. & Ors. , supra, primarily dealt with the issue with regard to validity of Rule 10 (3) of the Rules of 1996 which required the dependant of a government servant dying while in service to apply for compassionate appointment within a period of 45 days which period subsequently vide amendment in the said rule extended to 90 days. In fact, Division Bench in Rajendra supra also considered the judgment delivered by the learned Single Bench of this Court in Mancha Ram vs. State of Raj. & Ors. : RLR 2001 (1) 433 = (RLW 2001 (1) Raj. 112) whereby, the amendment made in Rule 10 (3) of the Rules of 1996 was struck down being ultravires to the provisions of Articles 14 & 16 of the Constitution of India, which provided that as and when a dependant attained majority, he could apply for compassionate appointment. An argument before the Division Bench was made that the aforesaid judgment require re-consideration because in the first place, the learned Single Judge suo motu examined the validity of Rule 10 (3) of the Rules of 1996 and secondly, the provision was salutory in nature and did not call for interference. The Division Bench rejected both the arguments and at the same time, also rejected challenge to the validity of Rule 10 (3) of the Rules of 1996 which provided for time limit of 90 days within which application was required to be made by the dependant of the deceased government servant for appointment on compassionate ground. In Jayant Kumar Jain supra, an application submitted by the dependant of the government servant was rejected being time barred. At the time of death of his father, petitioner in that case was only 13 years & 2 months and he applied for compassionate appointment after attaining majority. In those facts, when the judgment of the learned Single Bench dismissing the writ petition was challenged, the special appeal was dismissed.
(3.) RELEVANT rule which is sought to be pressed into service by the respondents is Rule 10 (3) of the Rules of 1996 which requires the applicant to make application for appointment on compassionate ground within 90 days from the date of death of the Government Servant. In the present case, the petitioner made the application within 10 days of the date of death of her husband on 4/12/1997 therefore, merely because the subsequent applications which were submitted in continuation thereof on 26/2/1998 and 5/3/1998 in response to the communications sent to her by the District & Sessions Judge Judge, Bharatpur i. e. firstly on 16/1/1998 and, thereafter, on 3/3/1998, cannot be said to be barred by time. In any case, the Division Bench did not require the respondents to terminate services of such appointees whose appointments have already been made and became final. Appointments once made crystilising the right in favour of an appointee, thereafter, cannot be discontinued. Action of the respondents in terminating the services of the petitioner is, therefore, liable to be set-aside also being arbitrary and illegal as no show cause notice nor any opportunity of hearing was provided to the petitioner prior to terminating her services. The Co-ordinate Bench of this Court in Manoj Kumar Goyal supra, considering the judgment of the Division Bench in State of Rajasthan and another vs. Ajay Sharma : RLR 2002 (2) 5 = (RLW 2003 (2) Raj. 1070) observed that persons appointed on compassionate ground have to be treated as regularly recruited on the post. It was further held that recruitment on compassionate ground is regular recruitment and once appointed, such recruitee becomes members of service and, therefore, such compassionate appointments could not be dispensed with in a summary manner. It was held that once appointment was given, initially though on probation, even if services of the petitioner are not found satisfactory, his services cannot be abruptly terminated without following the principles of natural justice and the prescribed procedure. In my considered view, the action of the respondents in terminating the services of the petitioner was wholly illegal besides being arbitrary, unreasonable and violative of Articles 14 & 16 of the Constitution of India. ;