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Madhya Pradesh High Court

Abdul Rahim vs Vikram University Ujjain on 16 November, 2018

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   HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE
           WRIT PETITION NO.25453 OF 2018
                (Abdul Rahim vs. Vikram University, Ujjain)


Indore, Dated 16.11.2018
       Mr. Vivek Dalal, learned counsel for the petitioner.
       None present for the respondent.
       Heard.
                                  ORDER

The petitioner before this Court filed the present petition being aggrieved by order dated 05.09.2018 by which the respondent No.1-University has rejected his claim for compassionate appointment on account of death of his father.

According to the petitioner, his father was appointed as Class-4 employee in the Respondent No.1-University vide order dated 10.10.1991. Thereafter, he was confirmed on the said post on 14.07.1994. Unfortunately, his father expired on 15.01.2011 while working in the services of respondent No.1-University. After his death, the petitioner being a qualified person had applied for compassionate appointment. The petitioner filed an affidavit of his mother and surviving brother, as they have no objection in grant of compassionate appointment to the petitioner. Thereafter, the petitioner submitted an application dated 08.02.2012 before the respondent No.3 and the same has been rejected vide letter dated 02.01.2013 due to the reason that the petitioner's brother- Shri Abdul Rashid Sheikh is already in employment as Peon in computer branch of Vikram University.

Being aggrieved by the aforesaid order, the petitioner filed the writ petition No.3684/2013 which was permitted to be withdrawn with liberty to submit the fresh representation. Now vide impugned order, the respondent has rejected the representation.

HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE WRIT PETITION NO.25453 OF 2018 (Abdul Rahim vs. Vikram University, Ujjain) Shri Dalal learned counsel for the petitioner submits that even if the brother of the petitioner is working in the University, but fact remains that he was not dependent on his father and he is living separately. The petitioner and his mother were dependent on the deceased (father) and after his death there is no one to look after them. His brother is having his own family, hence, he cannot support the petitioner and his mother. He submits that the respondents had wrongly rejected the representation without looking to the need of the petitioner. That the Division Bench judgment of this Court in the case of Prajesh vs. State of Madhya Pradesh reported in 2016(3) MPLJ Page 88 has dealt the similar controversy. The relevant paras of the judgment is as under:-

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 7 HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE WRIT PETITION NO.25453 OF 2018 (Abdul Rahim vs. Vikram University, Ujjain) 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 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 7 HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE WRIT PETITION NO.25453 OF 2018 (Abdul Rahim vs. Vikram University, Ujjain) 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 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 7 HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE WRIT PETITION NO.25453 OF 2018 (Abdul Rahim vs. Vikram University, Ujjain) 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 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 7 HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE WRIT PETITION NO.25453 OF 2018 (Abdul Rahim vs. Vikram University, Ujjain) 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 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.

HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE WRIT PETITION NO.25453 OF 2018 (Abdul Rahim vs. Vikram University, Ujjain) The aforesaid judgment states that even if any member of the family of the deceased is working though living separately, then also the applicant cannot claim for the compassionate appointment. Undisputedly, brother of the petitioner is already in employment of the respondent-University, the petitioner being dependent cannot claim compassionate appointment in view of law laid by this Court. Hence, the respondents have not committed any error or illegality in rejecting the representation of the petitioner. Accordingly, this petition is devoid of any substance and is hereby dismissed.

(VIVEK RUSIA) JUDGE Arun/-