Pushpendra Singh Bhati, J. - (1.) Petitioner has preferred this writ petition under Article 226 of the Constitution of India praying for the following reliefs:- "1. By an appropriate writ, order or direction, the impugned order dated 28.04.2016 passed by the respondent Additional Director (Administration) may kindly be declared illegal, arbitrary and unjust and same may kindly be quashed and set aside. 2. By an appropriate writ, order or direction, the respondents may kindly be directed to consider the application of the petitioner and provide her appointment on compassionate ground on the post applied for with all consequential benefits. 3. By an appropriate writ order or direction, if felt necessary for aforesaid purpose, it may kindly be directed that the 'Consolidated Salaried Appointee" be declared as a 'Deceased Government Servant or Probationer Trainee' as defined under Rule 2(b) of the Rules of 1996, if deceased government servant was died without regularization of the services of more than three years. 4. Any other appropriate writ, order or direction which this Hon'ble Court may deem just and proper in the facts and circumstances of the case may kindly be passed in favour of the petitioner. 5. Costs of the writ petition may kindly be awarded to the petitioner."
(2.) Admittedly, the petitioner's late husband Shri Anil Goswami was employee of the respondent department. The respondent issued an advertisement on 04.05.2007 for appointment on the vacant posts of Nurse Grade-II /GNM and the petitioner's husband was appointed on the post of Nurse Grade- II/GNM in the respondent Medical and Health Department in the year 2007 on temporary basis. The appointment of the petitioner's husband was extended from time to time. The respondent department issued an advertisement 26.02.2013 whereby the applications were invited for the post of Nurse Grade-II on regular basis and the husband of the petitioner having the requisite experience of five and half years along with other qualifications applied for the same. The final select list was released by the respondent department on 10.02.2016 in which the name of the husband of the petitioner Late Shri Anil Goswami finds place at serial no.3511. The petitioner's husband however expired on 30.09.2015 of-course before his services could be regularized in pursuance of the order dated 10.02.2016. The petitioner is seeking compassionate appointment under the Rajasthan Compassionate Appointment of Dependents of Deceased Government Servant Rules 1996 by a filing appropriate application within time. The application for compassionate appointment was rejected on the ground that the petitioner's husband was not working on the post of Nurse Grade-II. Learned counsel for the petitioner has relied upon the judgment passed by Jaipur Bench of this Court in Sarita Kanwar v. State & Ors. (S.B. Civil Writ Petition No.8021/2006) decided on 11.09.2008. The judgment reads as follows:- "Husband of petitioner after facing process of selection was appointed as Sais at the first instance vide order dt.21/02/1997 in pursuance whereof, was allowed to continue till he met with an accident and died on 30/03/06 while in service. His widow claiming herself as one of dependents of deceased Government servant submitted application seeking compassionate appointment under Scheme of Rules, 1996, but was rejected vide order dt.31/08/06 (Ann.3). Counsel for petitioner submits that deceased Government servant was initially appointed as Sais for a period of six months on the recommendations of recruitment committee and was allowed to continue till his death. Counsel further submits that under Scheme of Rules, 1996, appointment can be made either on regular or urgent temporary or ad hoc basis; and giving nomenclature of appointment on contract basis and are allowed to continue for a sufficient long time is nonelse than urgent temporary appointment and persons while working on urgent temporary basis are covered U/r 2(b) of Rules, 1996 and in such circumstances, rejecting claim of petitioner for consideration of compassionate appointment vide order impugned is not sustainable. Respondents filed reply to writ petition and only objection raised therein is that deceased being appointed on contract basis, his widow is not entitled to seek compassionate appointment under Scheme of Rules, 1996. A bare perusal of order dt.21/02/97 (Ann.1) in pursuance whereof deceased employee was appointed as Sais, clearly shows that he was called for interview and on recommendations made by recruitment committee, he was appointed on monthly consolidated sum of Rs. 1800/- initially for six months and such appointment in fact was on an urgent temporary basis, and is covered U/r 2(b) of Rules, 1996; as such very premise on which respondents rejected claim of petitioner treating deceased as contractual employee, in the opinion of this Court is not legally sustainable and petitioner being widow and dependent upon deceased government servant is certainly entitled for consideration of compassionate appointment. Consequently, writ petition succeeds and is hereby allowed. Order dt. 21/04/06 (Ann.3) rejecting claim of petitioner is quashed and set aside. Respondents are directed to consider claim of petitioner seeking compassionate appointment under Rules, 1996 and appropriate orders be passed within two months. No order as to costs."
(3.) Learned counsel for the petitioner has also relied upon the judgment passed by a coordinate Bench of this Court in Smt. Paro v. Municipal Corporation and Anr., (S.B. Civil Writ Petition No.12032/2015) decided on 15.02.2017. The judgment reads as follows:- "The prayer in the present petition is to set aside the order dated 15.05.2015 vide which the respondents rejected the grant of compassionate appointment to the petitioner on any suitable post in the respondent Corporation on the ground that the husband of the petitioner was not working with the respondent Corporation. The facts in short are that the husband of the petitioner was working on the post of Loader Operator/Sever Cleaning Machine Operator since 25.11.1999. However, the services of the petitioner were not regularized. The case for regularization of the employees of the respondent Department was persuaded by the Union. The details of the persons mentioned in the said list being pursued by the Union for regularization has been placed on record as Annexure 2. The name of the husband of the petitioner figured at S.No.7 in the said list. The husband of the petitioner had also filed a Writ Petition bearing No.3585/2012 in the High Court which was disposed of with a direction to the respondents to decide the representation of the petitioner therein in the light of the judgment rendered in the case of State of Karnataka v. Uma Devi reported in 2006(4) SCC Page 1. Six employees along with the husband of the petitioner filed representation on 29.05.2012. Vide order dated 14.02.2013 the husband of the petitioner was communicated to submit certain documents so that his case may be proceeded for further action. In pursuance to the said communication, the husband of the petitioner submitted the required certificates/documents regarding fitness, Driving License, Transfer Certificate issued by School on 25.04.2013. However, before the order of his regularization could be passed, the husband of the petitioner who was the sole bread earner for the family died on 16.08.2013. Whereas, the services of five other employees were regularized vide order dated 06.08.2014. Accordingly, the petitioner submitted an application to the office of the Collector, Jodhpur for compassionate appointment but vide impugned order dated 15.05.2015, the case of the petitioner was rejected on the ground that the husband of the petitioner was not working with the respondent Department. Reply has been filed. In the reply, it is admitted that the husband of the petitioner had rendered the services with the respondent Department but through the placement agency/Contractor on contractual basis. It is also admitted that the husband of the petitioner died before the order of his regularization could be passed. It has not been denied that the husband of the petitioner was working with the respondent Department since 1999 and had put in almost 14 years of service. The Apex Court in the case of General Manager, Uttaranchal Jal Sansthan v. Laxmi Devi and Ors. reported in AIR 2009 SC 3121 , while dealing with the question as to whether dependent of a deceased who was not a permanent or temporary employee would be entitled to appointment on compassionate appointment had held in the negative after taking into consideration the fact that the daily wagers cannot be termed as government servant, therefore, the question of applicability of the Rules does not arise. The said order was passed taking into circumstances that the deceased was neither a permanent employee nor was appointed on temporary basis and infact was appointed when there was a complete ban on appointment of daily wagers and was a backward entry. The facts in hand are somewhat different to the extent that the present petitioner was admittedly one amongst the six who had applied for regularization. All other five employees were regularized and the case of the petitioner was kept pending only on account of certain documents. The said documents had also been supplied but before the final order of regularization could be passed, the husband of the petitioner died. The impugned order is passed without application of mind on the ground that he was not working with the Department, whereas, in the reply it is admitted that he was working but on contractual basis. As per Rule 2(3)(b) of the Rajasthan Compassionate Appointment of Dependents of Deceased Government Servant Rules, 1996, the Deceased Government Servant is : "Deceased Government Servant" means a person who was employed in connection with the affairs of the State including a member of All India Services of Rajasthan State Cadre and whose pay was debitable to the consolidated fund of the State and who died while in service and who was:- (i) Permanent, or (ii) holding a post temporarily after appointment on regular basis, and had put in at least three years continuous service including period of probation as probationer-trainee. In somewhat similar set of circumstances, the Single Bench of Allahabad High Court in the case of Smt. Rita Devi v. State of U.P. and Ors. reported in 2004(1) AWC 825 , wherein identical Rules were involved held in para 15 and 16 as under : "15. Similar view was also taken by this Court (Hon'ble R. B. Misra, J.) by the order dated 26.9.2003 passed in Writ Petition No. 18172 of 1994, Smt. Anju Mishra v. General Manager, Kanpur Jal Sansthan, Benajhawar Road, Kanpur, where while rendering 11 years of service as daily wager in Jal Sansthan, Kanpur the petitioner's husband died before his regularisation where as one other dependent of a daily wager who also died after serving a considerable number of years as a daily wager was given appointment then in reference to the provisions of Article 14 the writ petitioner was directed to be given similar treatment in respect of appointment as a dependent oh compassionate grounds in reference to 'Rules, 1974'. 16. I have heard learned counsel for the parties. I find that if the similarly situated persons while working along with the husband of the petitioner were regularised and the petitioner's husband had worked for more than 15 years died before regularisation leaving behind the petitioner/widow, the benefit of appointment on compassionate ground could be extended to her, provided the vacancy is available and petitioner is in possession of the minimum qualification and age as required for appointment to the post of Class IV category. However, the age shall not debar the petitioner for appointing provided the petitioner should not be below 18 years and should not be more than 58 years. There is not an iota of hint in the reply that the husband of the petitioner was otherwise not entitled to be regularized or that his case was in any manner different from the other six persons who were regularized. In these circumstances, this Court finds that the denial of compassionate appointment to the petitioner wife is regretful and harsh in the circumstances. Admittedly, the husband of the petitioner had put in almost 14 years of service before he died. Accordingly, the present writ petition is allowed and the impugned communication dated 15.05.2015 denying the appointment is set aside with a direction that the benefit of appointment on compassionate ground be extended to the petitioner provided there is availability of a suitable post as per her qualification and subject to the availability of the vacancy. The needful be done within two months of the production of the certified copy of this order.";