Madhya Pradesh High Court
Shailendra Sakle vs Higher Education Department on 20 November, 2017
W.P.No.18827/2017
INDORE
20.11.2017
Shri L.C. Patne, learned counsel for the
petitioner.
Shri Vibhor Khandelwal, learned GA for the
respondent/State.
The petitioner has filed the present petition being aggrieved by the order dated 20.09.2017, by which the respondents have rejected his claim for grant of compassionate appointment.
That the petitioner's father Late Dayaram Sakle was serving in the Department of Higher Education and he died in harness on 15.02.2017, leaving behind petitioner's mother, elder son Shri Sarath Sakle and one married daughter along with petitioner. The petitioner is having qualification of Higher Secondary with distinction, B.Sc in Computer Science, M.Sc in Computer Science in first division.
According to the petitioner, his elder brother Shri Sarath Sakle is living separately even before the death of his father and is working on the post of Samvida Shala Shikshak Grade II.
After the death of his father, the petitioner submitted an application for grant of compassionate appointment on 04.04.2017. The aforesaid application was forwarded by the Principal, Government College, Kasrawat to the respondent no. 2. Vide order dated 28.09.2017, the respondent has rejected the representation of the petitioner on the ground that his brother is already working in government service, therefore, in light of the policy dated 29.09.2014, he is not entitled for compassionate appointment. Hence, present petition before this court.
Shri Patne, learned counsel appearing for the petitioner submits that elder brother of the petitioner is in service of Gram Panchayat and living separately since his appointment, therefore, he cannot be treated as a family member, therefore, the respondents have wrongly rejected his claim for the compassionate appointment. Learned counsel for the petitioner has placed reliance over the judgment passed by this court in the case of Vitthal Patil Vs. State of M.P and another (W.P. NO. 9463/2010 decided on 14.12.2011), hence, prayed for issuance of notice.
At the time of death of the father of the petitioner, the policy dated 29.09.2014 was in vogue in respect of compassionate appointment. In the said policy, clause 4 deals with the eligibility for compassionate appointment. As per Clause 4.1, if any family member of the deceased is already in service of corporation, Mandal, Counsel, Commission etc, then no one in the family would be eligible for compassionate appointment.
Undisputedly, the brother of the petitioner is already working as Samvida Shala Shikshak in the service of Gram Panchayat. The similar controversy came up before this court in the case of in Prajesh Shrivastava Vs. State of M.P. and others, reported in 2016(3) MPLJ 88 and this court has held that even the elder brother living seperately would come within the expression "family". The Division Bench has considered the scope of Clause 4.1 of the Policy dated 18.08.2008 also. Relevant paragraphs of the aforesaid judgment is reproduced below:
"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 SinghAIR 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 SinghAIR 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 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 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' "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 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 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 orbrother, 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"
Since issue is no more res-integra as held above that despite earning elder brother of petitioner is living separately, he has to be treated as the member of the deceased's family, therefore, the respondents have not committed any error while rejecting the application of the petitioner.
Accordingly, the present petition is dismissed.
(VIVEK RUSIA)
jasleen Judge
Jasleen Singh Saluja
2017.11.23 12:32:59 +05'30'