Chattisgarh High Court
State Of Chhattisgarh vs Kevra Bai Markandey on 23 February, 2022
Author: Arup Kumar Goswami
Bench: Arup Kumar Goswami
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AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WA No. 91 of 2022
1. State of Chhattisgarh Through Secretary, Department of Tribal
Development, Mahanadi Bhawan, Mantralaya, Police Station And
Post Rakhi, Atal Nagar, Nawa Raipur, District Raipur, Chhattisgarh.
2. Director Office of Director Department of Tribal Development,
Indravati Bhawan, Police Station And Post Rakhi, Atal Nagar, New
Raipur, District Raipur, Chhattisgarh.
3. Assistant Commissioner Department of Tribal Development, Office of
Collector, Baloda Bazar, District Baloda Bazar-Bhatapara,
Chhattisgarh.
---- Appellants
Versus
1. Kevra Bai Markandey W/o Late Shri Garjan Ram Markandey Aged
About 54 Years R/o Devarbood, Post Tahsil And P.S. Bilaigarh,
District Baloda Bazar Bhatapara, Chhattisgarh.
2. Devanand Markandey S/o Late Shri Garjan Ram Markandey Aged
About 27 Years R/o Dvarbood, Post Tahsil And P.S. Bilaigarh, District
Baloda Bazar Bhatapara, Chhattisgarh.
---- Respondents
(Cause-title taken from Case Information System) __________________________________________________________ For Appellants : Mr. Gagan Tiwari, Deputy Government Advocate. For Respondents : Mr. Abhishek Pandey, Advocate. __________________________________________________________ Hon'ble Shri Arup Kumar Goswami, Chief Justice Hon'ble Shri N.K. Chandravanshi, Judge Judgment on Board Per Arup Kumar Goswami, Chief Justice 23.02.2022 Heard Mr. Gagan Tiwari, learned Deputy Government Advocate for the appellants. Also heard Mr. Abhishek Pandey, learned counsel, appearing for the respondents.
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2. This writ appeal is presented against an order dated 22.07.2021 passed by the learned Single Judge in WPS No. 3750 of 2021.
3. The husband of the respondent No. 1 and father of the respondent No. 2, namely, late Garjan Ram Markandey, while working as Rasoiyya (Cook) in Tribal Development Department, Balodabazar-Bhatapara, died- in-harness on 17.10.2018. After his death, the respondent No.2 filed an application for grant of compassionate appointment. The appellant No.3 rejected the aforesaid application vide order dated 11.02.2021 on the ground that his elder brother, namely, Bhanu Markandey is already working in a government job and posted as Constable in Balodabazar-Bhatapara and therefore, as per the policy of compassionate appointment, he is not eligible to be considered for compassionate appointment.
4. The learned Single Judge, relying on the judgment of a Single Judge of this Court in Smt. Sulochana Netam Vs. State of Chhattisgarh & Others in WPS No. 2728 of 2017 decided on 23.11.2017 , opined as follows :
"10. Considering the fact that elder brother is in government employment, what needs to be verified is whether the said person can be brought within the ambit of dependent. Whether the said person can be compelled to take care of the petitioner and his widowed mother particularly when he has his own family and children to take care of and he has been living separately altogether.3
11. In the absence of any such situation, the policy of the State Govt. to that extent so far as compassionate appointment is concerned, has to be read down to be decided only after an enquiry which needs to be conducted by the respondents, ascertaining the dependency part and also in respect of any support which the petitioner No.2 is getting from the brother. For the aforesaid reason, the impugned order needs to be reconsidered and the rejection of the candidature of the petitioner No.2 by strict interpretation of the policy would not be sustainable.
12. Thus, for all the aforesaid reasons, the impugned orders (Annexure P/7 & P/8) dated 27.06.2019 & 11.02.2021 deserve to be and is accordingly set-aside. The authorities are directed to re-consider the claim of the Petitioner No.2 afresh taking into consideration the observations made by this Court in the preceding paragraphs and take a fresh decision at the earliest within an outer limit of 90 days from the date of receipt of copy of this order."
5. Mr. Tiwari submits that this case is squarely covered by the judgment in WA No.334 of 2021 decided on 10.12.2021 (Neeraj Kumar Uke Vs. State of Chhattisgarh & Others), wherein this Court, in categorical terms, held that no obligation is cast upon the government under the relevant scheme 4 to find out as to whether the family member of deceased employee, who is in government service, is providing any financial assistance to the other members of the family and therefore, the order of the learned Single Judge is required to be set aside and quashed.
6. Mr. Pandey fairly concedes that this case is squarely covered by the judgment dated 10.12.2021.
7. It will be relevant to extract paragraphs 9,10,11,12 and 16 of the judgment in Neeraj Kumar Uke (supra). The same read as follows :
9. In Umesh Kumar Nagpal v. State of Haryana, reported in (1994) 4 SCC 138, the Hon'ble Supreme Court, in paragraph 2, observed as follows:
"As a rule, appointments in the public services should be made strictly on the basis of open invitation of applications and merit. No other mode of appointment nor any other consideration is permissible. Neither the Governments nor the public authorities are at liberty to follow any other procedure or relax the qualifications laid down by the rules for the post. However, to this general rule which is to be followed strictly in every case, there are some exceptions carved out in the interest of justice and to meet certain contingencies. One such exception is in favour of the dependants of an employee dying in harness 5 and leaving his family in penury and without any means of livelihood. In such cases, out of pure humanitarian consideration taking into consideration the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made in the rules to provide gainful employment to one of the dependants of the deceased who may be eligible for such employment. The whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post much less a post for post held by the deceased." (emphasis added)."
10. In State Bank of India & Another v. Somvir Singh , reported in (2007) 4 SCC 778, the Hon'ble Supreme Court observed as under:
"7. Article 16(1) of the Constitution of India guarantees to all its citizens equality of opportunity in matters relating to employment or appointment to any office under the State. Article 16(2) protects citizens against discrimination in respect of any employment or office under the State on grounds only of religion, race, caste, sex, descent. It is so 6 well settled and needs no restatement at our ends that appointment on compassionate grounds is an exception carved out to the general rule that recruitment to public services is to be made in a transparent and accountable manner providing opportunity to all eligible persons to compete and participate in the selection process. Such appointments are required to be made on the basis of open invitation of applications and merit. Dependants of employees died in harness do not have any special or additional claim to public services other than the one conferred, if any, by the employer."
11. In State Bank of India v. Raj Kumar , reported in (2010) 11 SCC 661, the Hon'ble Supreme Court observed that it is well settled that appointment on compassionate grounds is not a source of recruitment and that it is an exception to the general rule that recruitment to public services should be on the basis of merit by open invitation providing equal opportunity to all eligible persons to participate in the selection process. The dependants of employees, who die in harness, do not have any special claim or right to employment, except by way of the concession that may be extended by the employer under the Rules or by a 7 separate scheme, to enable the family of the deceased to get over the sudden financial crisis. The claim for compassionate appointment is therefore traceable only to the scheme framed by the employer for such employment and there is no right whatsoever outside such scheme.
12. In State of Himachal Pradesh & Another v.
Parkash Chand, reported in (2019) 4 SCC 285, the Hon'ble Supreme Court reiterated that compassionate appointment is not a matter of right, but must be governed by the terms on which the State lays down the policy of offering employment assistance to a member of the family of a deceased government employee.
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16. It is no longer res integra that compassionate appointment cannot be claimed as a matter of right, as it is not a vested right. Compassionate appointment can be claimed only on the basis of scheme applicable for such appointment. When the scheme itself provides that no appointment shall be granted on compassionate ground, if any of the family members is in government service, no appointment can be claimed on the ground that the family member in government service is not giving any financial assistance. No obligation is cast 8 upon the government under the scheme to find out as to whether such employee is providing any financial assistance to the other members of the family."
8. The relevant scheme for compassionate appointment is contained in Consolidated Revised Instructions on Compassionate Appointment, 2013 (for short, 'Scheme'). In WA No. 33 of 2022 decided on 18.02.2022 (State of Chhattisgarh & Others Vs. Smt. Muniya Mukharjee) , this Court analyzed the provisions contained under Clauses 5 and 6A of the Scheme and recorded as follows at paragraphs 15 & 16 :
"15. A perusal of clause 5 of the Scheme would go to show that it does not envisage that on the death of a married government servant, the parents of the government servant would be entitled to compassionate appointment. It is the spouse of the deceased government employee who is given the first preference and then the son/adopted son, and so on and so forth in the sequence as laid down in clause 5. As only the dependent family members of the deceased government servant as indicated in clause 5 of the Scheme are eligible for compassionate appointment, in absence of definition of family in the Scheme, it will be reasonable to hold that the relations of the deceased government employee as mentioned in clause 5 would constitute the family of the deceased government employee. If any of the family members as 9 shown in clause 5 of the Scheme is already in government service, in terms of clause 6(A), the other members of the family as mentioned in clause 5 would not be eligible for compassionate appointment.
16. Explanation to clause 6A does not in any way relate to family of the deceased married government servant. What is the relevance of the explanation is also not discernible inasmuch as when the scheme had excluded dependent parents for being considered for compassionate appointment, there is no purpose in describing who are the dependents of the deceased married government servant."
9. Since another son of the deceased employee is already in government service, such son, who is in the government employment, would come within the meaning of a family of the deceased employee.
10. In view of the above discussion, the writ appeal is allowed. Order dated 22.07.2021 passed by the learned Single Judge in WPS No.3750 of 2021 is set aside. No cost.
Sd/- Sd/-
(Arup Kumar Goswami) (N.K Chandravanshi)
Chief Justice Judge
Chandra