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2019 Supreme(Raj) 619
IN THE HIGH COURT OF RAJASTHAN BENCH AT JAIPUR
PUSHPENDRA SINGH BHATI, J.
Sharda Kanwar – Appellant
Versus
The State of Rajasthan and Ors. – Respondents
S.B. Civil Writ Petition No. 11445 of 2016
Decided On : 27-08-2019
Advocate Appeared:
For the Appellant : Ripu Daman Singh Naruka, Jitendra Singh Shekhawat and Virendra Kaushik
For the Respondents: Archana, for Anil Mehta, AAG
A widow of a deceased employee has a right to challenge the termination order of her husband as she is an affected party and has a cause of action to protect her rights to compassionate appointment, family pension, etc.
Headnote:
APPEAL - MAINTAINABILITY - RAJASTHAN CIVIL SERVICES (CLASSIFICATION, CONTROL & APPEAL) RULES 1958, RULE 23 - WIDOW OF DECEASED EMPLOYEE - RIGHT TO CHALLENGE TERMINATION ORDER - AFFECTED PARTY - INTEREST OF JUSTICE.
Fact of the Case:
Petitioner, widow of a deceased employee, challenged the dismissal order of her husband and the appellate order upholding the dismissal. The issue was whether the petitioner, not being a member of the service, could maintain the appeal.
Finding of the Court:
The court held that the petitioner, as the widow of the deceased employee, was an affected party and had a cause of action to challenge the termination order as it directly affected her rights to compassionate appointment, family pension, etc. The court also held that in the interest of justice, the petitioner should be permitted to agitate the appeal on merits.
Issues: 1. Whether the petitioner, as the widow of the deceased employee, had a right to challenge the termination order. 2. Whether the petitioner was an affected party.
Ratio Decidendi: The court relied on the principle that any person should have a remedy where he has a cause and held that the petitioner, as the widow of the deceased employee, was an affected party and had a cause of action to challenge the termination order. The court also held that in the interest of justice, the petitioner should be permitted to agitate the appeal on merits.
Final Decision: The court allowed the writ petition, quashed the appellate order, and directed the appellate authority to pass an appropriate order on merits in accordance with law within six months.
ORDER :
Dr. Pushpendra Singh Bhati, J.
1. The petitioner has filed this writ petition claiming the following prayers :-
"(I) Issue an appropriate, writ, order or direction, the order of dismissal from service of husband of petitioner dated 11.07.2012 issued by respondents No. 3 may kindly be quashed and set aside;
(II) Issue an appropriate writ, order or direction, the order in appeal dated 22.04.2016 passed by respondents No. 2 may kindly be quashed and set aside;
(III) Issue an appropriate writ, order or direction, while exonerating the husband of the petitioner from the charges, his service monitory benefits as well as pension may be ordered to be granted to the petitioner and she may be given appointment on compassionate ground;
(IV) Any other appropriate order or directions which this Hon'ble Court may deem fit just and proper in the facts and circumstances of the case may kindly be passed in favour of the petitioner;
(V) Cost of the writ petition may also be awarded in favour of the petitioner."
2. The only limited submission of Mr. Ripu Daman Singh Naruka, learned counsel appearing for the petitioner, is that the petitioner's husband served the respondent-Department on the post of Patwari for a period of twenty-two years and was terminated from service vide order dated 11.07.2012 against which the petitioner preferred an appeal, which is dismissed on ground that petitioner is not entitled to maintain the appeal.
3. Counsel appearing for the petitioner submits that such appeal preferred under Rule 23 of the Rajasthan Civil Services (Classification, Control & Appeal) Rules 1958 (herein after to be referred as Rules of 1958) has been dismissed only on the ground that the petitioner's husband, who was a member of the service, has already expired way back on 26.09.2012 and the petitioner did not have a right of appeal under Rule 23 of the Rules of 1958.
4. Ms. Archana, advocate appearing for Mr. Anil Mehta, ld. A.A.G. for the respondents, submits that the appellate order is perfectly correct in the light of law, as Rule 23 of the Rules of 1958 envisages that the appeal is to be preferred by the member of the service and not by a member of the family.
5. Counsel appearing for the petitioner, in rejoinder to the arguments, has relied upon the judgment passed by the Division Bench of this Court in the case of Narain Devi Vs. State of Rajasthan and Others (D.B. Civil Special Appeal (Writ) No. 141/2002), decided on 08.09.2008, whereby a widow of serving member has been entitled to challenge the punitive order against her late husband.
6. The aforesaid order reads as follows:
"1. Heard learned counsel for the parties.
2. Appellant is the wife of late Jai Ram, who was Constable in 3rd Battalion RAC Bikaner and died on February 19, 2000 after prolonged sickness. When the appellant approached the office of RAC for grant of family pension, she was informed that she was not entitled to family pension since her husband was dismissed from service vide order dated July 21, 1998. The appellant filed writ petition in the Court of learned Single Judge with the following prayer:
(i) to quash and set aside the order dated July 21, 1998 passed by the Commandant 3rd Battalion RAC Bikaner.
(ii) To convert the punishment of dismissal into compulsory retirement without consequential benefits including family pension to the petitioner.
3. Contextual facts depict as under:
(a) The allegation incorporated in the memo issued to Jai Ram by Commandant, 3rd Battalion were that he absented from his duty for 266 days w.e.f. December 14, 1996 to September 6, 1997.
(b) In reply to the memo Jai Ram stated that he was absent because of mental disease. He was sent for treatment by Assistant Commandant on December 8, 996 and his treatment continued upto January 9, 1997. Since the disease was not properly cured, Jai Ram switched over to Desi treatment. Jai Ram was admitted in Mental Hospital on May 10, 1997.
(c) Jai Ram was football player and while playing football he suffered head
