Honble MISRA, J.–The question that fails for consideration in this writ petition is whether the order of appointment which was granted on compassionate ground to the petitioner due to death of his father, could be subsequently cancelled on the premise that the eldest son of the deceased was already a government servant. To elaborate the controversy further, it may be stated that the petitioner had been granted appointment on the post of LDC on compassionate ground in place of his deceased father in view of the provisions of the Rajasthan Compassionate Appointment of Dependents of Deceased Government Servant Rules, 1996 (for short ``the Rules of 1996). However, the appointment granted to the petitioner was cancelled only after a period of three months on 1.07.2000 and hence the petitioner has filed this writ petition for quashing the same by holding it illegal, arbitrary as also contrary to the rule.

(2). While pressing the case of the petitioner the counsel for the petitioner Shri Manjhu submitted that although Rule 5 of the Rules of 1996 declares that a dependent of the Government Servant, who dies while in service, will be granted appointment only if one of the sons or daughters or any other dependents is not already employed on regular basis, the fact in the instant case is that the petitioners brother is living separately and hence the petitioner should be granted appointment on compassionate ground.

(3). In order to test the correctness of the argument advanced by the counsel for the petitioner, it is essential to peruse Rule 5 of the Rules of 1996 which lays down as under:-

5. Appointment subject to certain conditions-When a Government servant dies while in service one of his/her dependents may be considered for appointment in Government service subject to the condition that employment under these Rules shall not be admissible in cases where the spouse or at least one of the sons, unmarried daughters, adopted son/daughter of the deceased Government servant is already employed on regular basis under the Central/State Government or Statutory Board, Organisation/Corporation owned or controlled wholly partially by the Central/State Government at the time of death of the Government servant;

Provided that this condition shall not apply where the widow seeks employment for herself.

(4). A perusal of the aforesaid rule clearly indicates that if a son or sons, unmarried daughter, adopted son/daughter of the deceased Government Servant is already employed on regular basis under the Central or State Government or Statutory Board, Organisation Corporation owned or controlled wholly or partially by the Central or State Government at the time of death of the Government servant, the other dependents of the deceased Government shall not be eligible for such appointment. Relying on this Rule the counsel for the respondents submitted that the appointment of the petitioner was rightly cancelled as the petitioner was not eligible for compassionate appointment since the elder brother in the family was already a government servant.

(5). Countering this submission of the respondents advocate, it was urged by the petitioners counsel that if the brother of the petitioner was living separately then he should not be debarred from getting the appointment in view of the fact that he is living separately and would be under no obligation to look after the family of the deceased and hence the petitioner ought to be treated as the eldest dependent member of the deceased and should be held entitled for compassionate appointment. This argument perhaps could have been entertained for consideration by this Court but this question already has been adjudicated by a Division Bench of this Court in the matter of Board of Rajasthan and another vs. Rajendra and 3 Ors. (1), wherein the learned Judges of the Division Bench have held that a son/daughter who is already employed may not be dependent on the deceased government servant, but at the same time he continues to be

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