Madhya Pradesh High Court
Rakesh Shrivastava vs The State Of Madhya Pradesh on 24 August, 2018
1 W.P. No.17005/2017
HIGH COURT OF MADHYA PRADESH, PRINCIPAL
SEAT AT JABALPUR
Case No. W.P No.17005/2017
Parties Name Rakesh Shrivastava
Vs.
State of Madhya Pradesh and others
Date of Judgment 24/08/2018
Bench Constituted Single Bench.
Judgment delivered by Justice Sujoy Paul
Whether approved for No
reporting
Name of counsels for For petitioner: Shri Jayant Patel,
parties Advocate.
For Respondents: Shri Ravi
Sharma, Advocate.
Law laid down
Significant paragraph
numbers
ORDER
24/08/2018 The parties are at loggerheads on the question of legality and validity of the orders dated 19.12.2016 and 18.04.2017 (Annexure-P/3 and Annexure-P/7) whereby the claim of the petitioner for grant of compassionate appointment was rejected on the ground that his brother - Deepak Shrivastava is already working in Government service.
2. The petitioner assailed this order on the strength of Single Bench judgments passed in W.P. No.10227/2011 (Ajay Nangwade Vs. State of M.P.), W.P. No.8694/2013 (Prakash Chandra Nagalkar Vs. State of M.P.) & W.P. No.18273/2011 (Sohan Joshi Vs. State of M.P.). It is argued that the 2 W.P. No.17005/2017 petitioner's elder brother is residing separately and, therefore, the petitioner may be appointed.
3. Per contra, Shri Ravi Sharma, learned counsel for respondent No.3 opposed the same on the strength of the relevant clause of the Policy (Clause 3.3). He placed reliance on two judgments of this Court.
4. I have heard learned counsel for the parties at length and perused the record.
5. As noticed, the petitioner has placed reliance on the Single Bench Judgments of this Court whereas the respondents have relied on a Division Bench judgment passed in Writ Appeal No.373/2015 (Prajesh Shrivastava Vs. State of M.P. and others). The Division Bench has taken into account various earlier orders passed on the issued and opined as under:
"12. We are presently concerned with Clause 4.1 and 4.7.
13. Evidently, clause 4.1 stipulates **fnoaxr 'kkldh; lsod ds ifjokj dks dksbZ Hkh vuqdaik fu;qfDr dk ik= lnL; ;fn iwoZ ls 'kkldh; lsok vFkok fuxe eaMy] ifj"kn] vk;ksx vkfn esa fu;kftr gS A*. Whereas, Clause 4.7 envisages **fnoaxr 'kkldh; lsod ds ifjokj ds fcUnq dzekad 2-1 ls 2-4 esa n'kkZ;s iw.kZr% vkfJr lnL; dks NksMdj vU; dks vuqdaik fu;qfDr dh ik=rk ugha gksxh A**
14. Case of Ku. Priyanka Dixit (supra) was that she was appointed on compassionate ground in lieu of death of her father Gyan Babu Dixit employed as Health Educator who died in harness on 12.5.2003. Later on, on a complaint received that member of the family of Gyan Babu Dixit i.e. his son Devendra Dixit was already in employment, led to passing of an order of withdrawing the compassionate appointment granted to her. On challenge, the Writ Court set aside the order of removal, holding :-
"6. After hearing the learned counsel for the parties and on perusal of the original record, which was submitted by the Government Advocate, it is apparent that at the time of submission of the application form, petitioner has mentioned in her application that her brother Devendra Dixit is working as Shiksha Karmi and receiving Rs.4,500/- per month, but he is residing separately. Similary, her another brother Sandeep Dixit was in the priviate service and receiving Rs.2000/- and who is also living separately. It further reveals from the record that Sandeep Dixit and Devendra 3 W.P. No.17005/2017 Dixit both were submitted their affidavits indicating the said fact and thereafter, the order of compassionate appointment dated 9.6.2003 Annexure P/1 was issued in her favour. It is further seen from the record that some complaint was received by the Collector District Rajgarh and on the basis of the said complaint without asking any explanation from the petitioner a report was prepared by him on 21.2.2006 wherein he has recorded the finding of concealment of material fact of the employment of her brother Devendra Dixit while applying for compassionate appointment. Although, the said finding as recorded by the Collector with regard to aforesaid fact is contrary to the record as discussed hereinabove. At the same time, in terms of the GAD Policy dated 20.8.2001, the brother who is living separately does not come within the meaning of expression 'family'. Once the brother who was in the employment, is not residing along with the deceased and residing separately then it cannot be construed that one of the members of the family of the deceased was in the employment. The guidance may be taken in this respect from the judgment of this Court in the case of Kamal Singh Bamne v. State of M.P. : W.P. (S) No.6667/2006 and Haryana Public Service Commission v. Harinder Singh AIR 1999 SC 551."
15. Apparent it is from paragraph 6 of the aforesaid decision that the Court was not called upon to interpret the expression 'family', but an observation was made that the brother who is living separately does not come within the meaning of expression 'family'. The nuances to such an interpretation in the background of the Policy being of compassionate appointment, was not gone into. Yet, the Writ Court went on to make an affirmative observation to the effect that once the brother who was in the employment, is not residing along with the deceased and residing separately then it cannot be construed that one of the members of the family of the deceased was in the employment. Trite it is, as held in Mst. Jagir Kaur v. Jaswant Singh AIR 1963 SC 1521 that "6. . the meaning of the word would, in the ultimate analysis, depend upon the context and the purpose of a particular statute." What is true for a statute would be equally true for the Policy of the State Government, having force of law. Therefore, the expression "member of the family"
has to be considered in the context of the Policy as a whole in question.
16. Further, the Writ Court also relied on the decision rendered by the Supreme Court in Haryana Public Service Commission v. Harinder Singh AIR 1999 SC 551. A bare perusal of this decision reveals that, the issue raised before the Supreme Court was - as to whether Respondent, whose claim for appointment on compassionate ground was rejected by Haryana Public Service Commission, was dependent upon his ex-serviceman father or his mother. Taking note of the fact as it appears in paragraph 3 of the said decision that there is a reservation in regard to recruitment for the State Government for dependents of service personnel killed or disabled. Dependents are defined to include, besides the wife and widow, "dependents 4 W.P. No.17005/2017 sons/daughters". The said categorization which was observed by their Lordships was stated in the reservation policy. Be it noted that the issue before the Supreme Court was - as to the reservation policy and not the policy of compassionate appointment; it was these facts in the background, their Lordships were pleased to observe :
"7. The whole idea of the reservation is that those who are dependent for their survival on men who have lost their lives or become disabled in the service of the nation should not suffer. The public purpose of such reservation would be totally lost if it were to be made available to those who are gainfully employed. There is no justification for construing the words "dependents of ex-serviceman" in any manner other than that in which the appellant has construed them. This is in accord with the reservation policy itself, as shown by the quotation therefrom aforestated."
17. It was thus clear that the expression 'member of family', as it appear in the Policy of compassionate appointment, which we are concerned with, was not under consideration before the Supreme Court. Therefore, the support drawn therefrom to interpret the expression "member of family", in our humble opinion, is misplaced.
18. In Prakash Parmar (supra), the Writ Court though was dwelling upon Clause 4.1 of the Policy; however, borrowed the definition of 'family' from M.P. Fundamental Rules and M.P. Civil Services (Medical Attendance) Rules, 1958 (for brevity '1958 Rules).
19. Under M.P. Fundamental Rules, -
(8) Family means a Government servant's wife or husband, as the case may be, residing with the Government servant and legitimate children and step children residing with and wholly dependent upon the Government servant. Except for purposes of Section XVI- A of the Supplementary Rules in Appendix V, it includes, in addition, parents, sisters and minor brothers, if residing with and wholly dependent upon the Government servant.
(b) For the purpose of Section XI, it includes in addition unmarried and widowed sisters and minor brothers if residing with and wholly dependent upon the Government servant. Note.- Government servant's wife or husband, as the case may be, legitimate children, step children, father, mother, step mother, unmarried and widowed sisters, minor brothers who reside with the Government servant and whose income from all sources including pension (inclusive of temporary increase/relief in pension and pension equivalent to death-cum-retirement gratuity benefits) does not exceed Rs.1275 p.m. may be deemed to be wholly dependent upon the Government servant.
Notes. -(1) Not more than one wife is included in the term 'family' for the purposes of these rules.
(2) An adopted child shall be considered to be a legitimate child if, under the personal law of the Government servant, adoption 5 W.P. No.17005/2017 is legally recognised as conferring on it the status of a natural child.
[Please see. Chapter II F.R.9]
20. So far as definition of 'family' under 1958 Rules is concerned, it means -
"(i) The wife or husband of a Government servant,
(ii) The parents, legitimate children including children adopted legally and step children of such Government servant residing with and wholly dependent on the Government servant."
21. However, clarification was issued by the Public Health Department vide its Circular No.2273/1697/XVII/Med.(iii) dated 5.5.1960, clarifying the expression 'residing with' stating
- "a question has been under consideration of Government whether the term 'residing with' occurring in Rule 2(d)(ii) of 1958 Rules should be held to mean physical residence to the family members of Government servant at his headquarters. Government have now decided that the members of Government servant's family who are kept by the Government servant concerned at a place other than his own residence for education or treatment or for the sake of convenience to himself should be deemed to be residing with him. The said clarification issued by the Government thus leaves no iota of doubt that under 1958 Rules, if members of the family is kept away from the residence of Government servant or for the sake of convenience to himself is treated to be a member of family.
22. This aspect seems to have escaped from the consideration in the case of Prakash Parmar (supra).
23. Furthermore, in Ku. Priyanka Dixit (supra) and Prakash Parmar (supra), the emphasis is on the fact that though an incumbent is a member of the family but cannot be treated as such because living separately and not residing with the Government servant.
24. The word 'reside' came to be considered in Mst. Jagir Kaur (supra) in the context of the jurisdiction of the Magistrate under Section 488 of the Code of Criminal Procedure, 1898 for entertaining the petition of a wife for maintenance, wherein their Lordships were pleased to hold -
"6. .... The said meaning, therefore, takes in both a permanent dwelling as well as a temporary living in a place. It is, therefore, capable of different meanings, including domicile in the strictest and the most technical sense .."
25. Similarly, in Union of India v. Dudh Nath Prasad (2000) 2 SCC 20, it is held -
"14. The word '"reside" has been defined in the Oxford Dictionary as "dwell permanently or for a considerable time; to have one's settled or usual abode; to live in or at a particular place." The meaning, therefore, covers not only the place where the person has a permanent residence but also the place where the person has resided for a "considerable time"."
26. Therefore, merely because a member of the family of Government servant, who is in the employment in government service, or corporation, board, council, commission etc., has 6 W.P. No.17005/2017 started residing separately, he cannot be excluded from the class under Clause 4.1 of the Policy.
27. There are other reasons why we are of the opinion that the family member in employment but living separately has to be treated as a member of family of deceased Government servant.
28. Trite it is that appointment to public service is to be on merit in accordance with the Rules furthering the principle enunciated in Article 16 of the Constitution of India, which mandates that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. Exception, however, has been carved out in favour of dependents of employees who die in harness and leaving their family in penury and without any means of livelihood. For that, State Government has evolved a policy for appointment on compassionate ground with an object to provide immediate relief to such bereaved family.
29. While dwelling upon this aspect, it has been held by the Supreme Court in Haryana State Electricity Board v. Hakim Singh (1997) 8 SCC 85 -
"8. The rule of appointments to public service is that they should be on merits and through open invitation. It is the normal route through which one can get into a public employment. However, as every rule can have exceptions, there are a few exceptions to the said rule also which have been evolved to meet certain contingencies. As per one such exception belief is provided to the bereaved family of a deceased employee by accommodating one of his dependents in a vacancy. The object is to give succor to the family which has been suddenly plunged into penury due to the untimely death of its sole bread-winner. This Court has observed time and again that the object of providing such ameliorating relief should not be taken as opening an alternative mode of recruitment to public employment."
30. Thus, while acknowledging the exception carved out for appointment on compassionate ground, it has been categorically observed that "object of providing such an ameliorating relief should not be taken as opening an alternative mode of recruitment to public employment". Similarly, in Mumtaz Yunus Mulani v. State of Maharashtra (2008) 11 SCC 384, it is held -
"11. However, it is now a well settled principle of law that appointment on compassionate ground is not a source of recruitment. The reason for making such a benevolent scheme by the State or the Public Sector Undertaking is to see that the dependents of the deceased are not deprived of the means of livelihood. It only enables the family of the deceased to get over the sudden financial crisis."
31. The foremost factor for consideration for appointment on compassionate ground, therefore, is to protect the family in question from penury on the death of sole bread earner. It is in the light of this aspect Clause 4.1 is to be understood. It states that in case any eligible member of the deceased family 7 W.P. No.17005/2017 is in Government service, he will not be entitled for appointment on compassionate ground. Apparently, the Clause is loosely drafted. If a family member at best residing separately is already in employment in Government service, there is no need for him to file an application for appointment on compassionate ground in lieu of death of father, mother or brother, as the case may be. The need arises only when "no one in the family" is in employment of the State or instrumentality of the State and there is sudden death of the sole bread earner.
32. We, therefore, respectfully disagree with the interpretation given to Clause 4.1 of the Policy for compassionate appointment in Ku. Priyanka Dixit (supra) and Prakash Parmar (supra) and hold that where in a family of deceased Government servant, any of the member eligible for compassionate apportionment is in the employment in government service or corporation, board, council, commission etc., any other member of the family, though eligible, will not be entitled for appointment on compassionate ground.
33. Accordingly, we decline to interfere with the order passed in passed in Writ Petition No.8843/2015.
34. Consequently, Appeal fails and is dismissed. No costs."
6. A plain reading of the judgment of Division Bench in Prajesh Shrivastava (supra) makes it clear that similar clause 4.1 of the policy was considered by this Court. After taking stock of earlier judgments on this point and judgment of Supreme Court, it was poignantly held that where in a family of deceased employee, any of the member is in employment of the Government, Corporation, Board, Council or Commission etc., any other member of the family, despite eligibility, is not entitled for appointment on compassionate ground. I am bound by this detailed judgment of Division Bench. Thus, interference in the impugned orders is declined.
7. Petition is dismissed.
(Sujoy Paul) Judge Biswal Digitally signed by SHIBA NARAYAN BISWAL Date: 2018.08.24 17:34:05 +05'30'