Termination of service upheld due to lack of disciplinary proceedings; compassionate appointment denied due to delay and non-existent service at the time of death.

ORDER :

(Sameer Jain, J.)

With the consent of learned counsel for both the sides, the instant petition is taken up for final disposal.

2. The instant petition is filed assailing the impugned termination order dated 23.07.1994, with the following prayers:

"i) The termination order of the Vijay Singh dated 23.07.1994 may kindly be declared to be arbitrary, illegal, unreasonable, void ab-initio, contrary to the principles of natural justice and also the provisions of Rule 86(3) of the Rajasthan Service Rules and the same may kindly be quashed and set aside.

ii) The respondents may kindly further be directed to treat Shri. Vijay Singh to be in continuous service of the respondents without any break.

iii) The respondents may kindly be directed to give appointment to petitioner no. 2 on compassionate ground with effect from the date of submitting the application for appointment, with all consequential benefits to him.

iv) They may kindly further be directed to give the family pension and make the payment of State Insurance, GPF and other emoluments, which are due in favour of the petitioners, alongwith interest @ 12% p.a.

v) Any other appropriate order or direction which this Hon'ble Court may deem just and proper in the facts of the present case, may also be passed in favour of the petitioners."

3. The crux of the matter is that on 08.06.1976, Mr. Vijay Singh (Deceased), husband of petitioner no. 1 and father of petitioner no. 2 was appointed as 'Chowkidar' in the respondent department and subsequently his service was made permanent vide order dated 11.06.1976. But due to an unfortunate incident, Mr. Singh suffered from certain mental disease, due to which he was unable to be present/mark attendance and render the assigned service, in between the period of 1989-1994.

4. As a result of the above stated willful absentism, the respondent department issued his termination letter on 23.07.1994 (Annexure-2), without granting any opportunity of being heard. Subsequently, Mr. Singh died on 06.08.1994. Ergo, the petitioners applied for grant of compassionate appointment qua petitioner no.-2 and the payment of State Insurance/ GPF/ pensionary benefits and reimbursement of the medical bills of the deceased-Mr. Singh.

5. In this regard, a notice for demand of justice was served upon the respondents, but a deaf ear was paid to the same. Aggrieved of which, the petitioners preferred SBCWP No. 4583/2007 titled as Smt. Dholki Devi & Anr. v. State of Rajasthan and Ors. Vide order dated 10.07.2007, the said petition was disposed of, with the directions to the respondents to consider the said notice for demand of justice dated 05.09.2006, within an upper period of six months. (Annexure-4). The said representation and notice for demand of justice, claiming compassionate appointment and pensionary benefits was rejected by the respondent-department. (Annexure-7).

6. In this backdrop, learned counsel for the petitioners had submitted that the said action of the respondent-department, whereby, dodging the provisions of Rule 86(3) of the Rajasthan Service Rules, (hereafter referred as RSR) the termination letter issued qua the petitioner, was illegal and arbitrary, as it was de hors the settled position of law. It is a settled position of law, as per the provisions enshrined under Rule 86 of RSR, that the disciplinary authority may initiate the departmental proceedings against the State Government Employee, who had been absent from service for more than 30 days, under the CCA Rules. Moreover, only when the allegations of willful absentism are upheld by the disciplinary authority, then can the termination order be passed. However, in the instant matter no disciplinary proceedings were ever initiated against the petitioner.

7. It was submitted that by the said impugned actions of the respondents, the petitioners have faced grave mental agony and financial loss. Even the principles of natural justice and audi alteram partem were violated by the respondents.

8. Per