Chattisgarh High Court
State Of Chhattisgarh vs Smt. Muniya Mukharjee on 18 February, 2022
Author: Arup Kumar Goswami
Bench: Arup Kumar Goswami
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AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WA No. 33 of 2022
1. State of Chhattisgarh Through Its Secretary, Department of Public Heath
and Engineering, New Mantralaya, Raipur, Police Station Mandir Hasaud
(wrongly mentioned as Kewli), Tahsil and District Raipur, Chhattisgarh.
2. Superintending Engineer (E and M Board), Public Health Engineering
Department, Civil Lines, Neer Bhawan, Raipur, Tahsil and District Raipur
Chhattisgarh.
3. Executive Engineer (E and M Division), Public Health Engineering
Department, Jagdalpur, District Bastar Chhattisgarh.
---- Appellant
Versus
Smt. Muniya Mukharjee W/o Late Udipto Mukharjee, Aged About 26 Years
R/o. Kumharpara, Jagdalpur, Police Station, Tahsil Jagdalpur, District
Bastar Chhattisgarh Mo. No. 6266962188.
---- Respondent
(Cause Title taken from Case Information System) For Appellants : Mr. H.S.Ahluwalia, Deputy Advocate General. For Respondent : Mr. Ratnesh Kumar Agrawal, Advocate.
Hon'ble Mr. Arup Kumar Goswami, Chief Justice Hon'ble Mr. N.K.Chandravanshi, Judge Judgment on Board Per Arup Kumar Goswami, Chief Justice 18/02/2022 Heard Mr. H.S.Ahluwalia, learned Deputy Advocate General, appearing for the appellant. Also heard Mr. Ratnesh Kumar Agrawal, learned counsel, appearing for the respondent.
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2. This appeal is presented against an order dated 22.09.2021 passed by the learned Single Judge in Writ Petition (S) No. 5066 of 2021, whereby the learned Single Judge set aside the order dated 07.11.2020, by which the appellants had rejected the claim of the writ petitioner for compassionate appointment on the death of her husband, namely, Udipto Mukharjee, who died in harness while working as Assistant Grade-III under the respondent No. 3, on 03.08.2020, on the ground that the mother-in-law of the writ petitioner was in government employment.
3. The wife of the deceased government employee, who is a writ petitioner, is only 27 years of age and her husband died at the young age of 31 years.
4. Mr. Ahluwalia submits that the reason assigned by the learned Single Judge that the mother-in-law of the writ petitioner cannot be brought within the ambit of family for the purpose of grant of compassionate appointment cannot be sustained in view of the provisions contained in the Consolidated Revised Instructions on Compassionate Appointment, 2013 (for short, 'Scheme'), which is the scheme of compassionate appointment holding the field. Mr. Ahluwalia contends that it is manifestly clear that clause 6A of the Scheme disentitles a member of the family of the deceased married government servant, if any other member of the family is already in government service. Adverting to the explanation to clause 6A, it is submitted that the mother of the married government servant is considered to be a member of the family of the deceased, and therefore, the view taken while rejecting the application for compassionate appointment submitted by 3 the writ petitioner, cannot be faulted with.
5. Mr. Ahluwalia submits that as family is not defined under the Scheme, the definition of family as provided in Rule 44 (5) of the Chhattisgarh Civil Services (Pension) Rules, 1976 (for short, Pension Rules), which provides that family in relation to a government servant means, amongst others, mother, whose personal law permits adoption may be considered. Mr. Ahluwalia also submits that Rule 2(c) of the Madhya Pradesh Civil Services (Conduct) Rules, 1965 (for short, Conduct Rules) provides, amongst others, that any person related by blood or marriage is a member of the family in relation to a government servant, and in that view, mother of the diseased married government servant would come within the ambit of family.
6. Mr. Agrawal, learned counsel for the respondent/writ petitioner relies on the impugned order to contend that no case is made out for interference with the order of the learned Single Judge in this appeal.
7. We have considered the submissions of the learned counsel for the parties and have perused the materials on record.
8. A perusal of the order of the learned Single Judge would go to show that the learned Single Judge did not advert to the provisions of Scheme of compassionate appointment. However, the learned Single Judge opined that family would consist of the husband, wife and their children and on that premise, it was observed at paragraph 5 as follows:
"5. By no stretch of imagination the mother-in-law of petitioner 4 or for that matter the mother of the deceased can be brought within the ambit of family for the purpose of determining the dependency part neither does the policy for compassionate appointment framed by the State Govt. envisage that mother and father of the deceased would also be considered for the purpose of determining the dependency. In the absence of which it has to be implied that by the term family, it would be the deceased, his wife and children. Within the said family there is nobody in government employment and therefore the interpretation given by the respondents in rejecting the application for compassionate appointment does not seem to be justified."
9. The Hon'ble Supreme Court, in State Bank of India & Another v. Raj Kumar, reported in 2010 (11) SCC 661, 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 an open invitation providing equal opportunity to all eligible persons to participate in the selection process. The dependents 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 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. An appointment 5 under the scheme can be made only if the scheme is in force and not after the same is abolished or withdrawn.
10. In view of the law laid down in Raj Kumar (supra), it will be appropriate to consider the relevant provisions of the Scheme for compassionate appointment, which came into effect from 14.06.2013.
11. Who are the eligible candidates for compassionate appointment is laid down in clause 5. For better appreciation, it will be appropriate to extract clause 5 in its entirety. The same reads as under:
"5. Eligible candidates for compassionate appointment: -
One of the dependent family member of the deceased Government servant in the order shown below, i.e. (a) on rejection or not being eligible (b) and afterwards in the same sequence (c). (d) and (e) will be considered for compassionate appointment respectively:
(a) Spouse of deceased government employee,
(b) Son/adopted son,
(c) (Unmarried)* daughter/unmarried adopted daughter,
(d) Dependent widow daughter/dependent adopted widow daughter
(e) Dependent divorced daughter/dependent divorced adopted daughter and,
(f) Daughter-in-law**"
12. Clause 6 deals with compassionate appointment on the death of 6 unmarried government servant. As in the present case, the deceased government servant was married, it is not necessary for us to dilate on the scope of clause 6.
13. Clause 6A of the Scheme reads as follows:
"6A. In the family of the deceased married government servant, if any other member of the family is already in government service, then the other member of the family will not be eligible for compassionate appointment.
** Explanation. Dependents of the family of deceased married and unmarried government servant shall include the following members:
A) In case of married government servant - Dependent mother, dependent parents, widow/widower, son and daughter (including adopted son/daughter, widow/ divorced daughter) and daughter in law.
B) In case of unmarried government servant (or widower having no son/daughter) - dependent father, mother, brother and sister."
14. The argument advanced by Mr. Ahluwalia relying on the Pension Rules and the Conduct Rules deserves to be rejected outright. Rule 44(5) of the Pension Rules makes it clear that members of the family as indicated therein is only for the purpose of Rules 44, 45 and 46. While Rule 44 of the Pension Rules deals with death-cum-retirement gratuity, Rule 45 deals with persons to whom gratuity is payable. Rule 46 of the Pension Rules deals 7 with the nominations, and therefore, who are the members of the family for the purpose of the aforesaid Rules, cannot be taken into consideration while considering an application for compassionate appointment. On the same analogy, reliance placed on the Pension Rules is also misconceived. That apart, the emphasis placed by Mr. Ahluwalia that mother will be a member of the family because she is related by blood to the married government servant, is also misconceived inasmuch as Rule 2 (c) (iii) provides that any other person related, whether by blood or marriage, to the government servant or to the government servant's wife or husband and wholly dependent on the government servant, shall be a member of the family in relation to a government servant. In the instant case, mother of the deceased government servant herself is a government employee and thus, not dependent on the deceased government employee. It is to be remembered that on the ground that the mother of the deceased government employee is in government employment, the application of the writ petitioner, who is the wife of the deceased employee, was rejected.
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 8 deceased government employee as mentioned in clause 5 would constitute the family of the deceased government employee. If any of the family members as 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.
17. In view of the above discussion, we find no merit in this appeal and consequently, the same is dismissed.
Sd/- Sd/-
(Arup Kumar Goswami) (N.K.Chandravanshi)
CHIEF JUSTICE JUDGE
Amit