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. 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.
(3.) 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.;