Madhya Pradesh High Court
Prajesh Shrivastava vs The State Of Madhya Pradesh on 10 May, 2016
Author: Sanjay Yadav
Bench: A.M. Khanwilkar, Sanjay Yadav
:: 1 ::
Writ Appeal No.373/2015
HIGH COURT OF MADHYA PRADESH :
JABALPUR
Writ Appeal No.373/2015
Prajesh Shrivastava ...Appellant
versus
State of M.P. and others ...Respondents
-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Shri Manikant Sharma, learned counsel for appellant.
Shri Samdarshi Tiwari, Deputy Advocate General for
respondents/State.
-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
CORAM :
Hon'ble Shri Justice A.M. Khanwilkar, Chief Justice
Hon'ble Shri Justice Sanjay Yadav
-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Reserved on : 05.04.2016 28.10.2015
Date of decision : 10.05.2016
ORDER
Per Sanjay Yadav, J.
This intra-Court appeal under Section 2(1) of the M.P. Uchcha Nyayalaya (Khand Nyay Peeth Ko Appeal) Adhiniyam, 2005, is directed against the order-dated 22.6.2015 passed in Writ Petition No.8843/2015; whereby, claim of the appellant for appointment on compassionate :: 2 ::
Writ Appeal No.373/2015
ground in lieu of the death of his mother, has been turned down, as one of the brother of the appellant was found to be working as Assistant Surgeon in the services of the State Government.
2. Mother of the appellant, employed as Lab Attendant in Higher Education Department, expired on 30.9.2010. He sought appointment on compassionate ground in lieu of the death of her mother. The claim was turned down vide communication dated 20.5.2011 on the ground that his elder brother is employed in Government service. Aggrieved, the appellant preferred a Writ Petition No.1637/2013. The petition was disposed of on 8.2.2013 by taking into consideration the contention that the petitioner may be given an opportunity for fresh representation raising the ground that if the brother, who is employed in Government service, is living separately, then petitioner is entitled for appointment on compassionate ground. On re-representation, the claim was reconsidered and rejected by order dated 2.4.2013 on the ground that the elder son of the Government servant (elder brother of the appellant) being employed as Doctor in :: 3 ::Writ Appeal No.373/2015
Government service, the appellant was not entitled for the appointment.
3. Aggrieved, appellant again filed a Writ Petition No.8520/2013, which was disposed of vide order-dated 29.1.2015 with the direction to the respondents to reconsider the claim. Whereon, by order-dated 4.4.2015, the claim for appointment on compassionate ground was turned down by holding :
**5- ekuuh; mPp U;k;ky;] tcyiqj }kjk ikfjr fu.kZ; fnukad 29@11@2015 ds vuqikyu esa Jh izt's k JhokLro fuoklh 'kgMksy }kjk izLrqr vH;kosnu fnukad 13@2@2015 dk vuqdEik fu;qfDr ds izpfyr fu;eksa ds vUrxZr iqu% ijh{k.k fd;k x;k] ;g ik;k x;k fd fnoaxr ds T;s"B iq= MkW iadt JhokLro tks fd fnoaxr ds ifjokj ds fufoZokn :i ls lnL; gS e/; izns'k flfoy lsok oxhZdj.k] fu;a=.k rFkk vihy fu;e] 1966 ds fu;e 02 esa ifjHkkf"kr 'kkldh; lsod gSA vr% fnoaxr 'kkldh; lsod ds T;s"B iq= MkW iadt JhokLro ds 'kkldh; lsok esa fpfdRld ds in ij fu;ksftr gksus ls fnoaxr ds iq= vkosnd Jh izt's k JhokLro dks vuqdEik fu;qfDr ds izpfyr fu;eksa ds vUrxZr vuqdEik fu;qfDr ik=rk ugha gS A**
4. Apparent it is from the impugned order-dated 22.6.2015 that the Writ Court relied on Clause 4.1 of the Policy for appointment on compassionate ground, brought in vogue by :: 4 ::Writ Appeal No.373/2015
the General Administration Department, vide letter No.C.3- 4/1/3/06 dated 18th August, 2008 (brought on record in Writ Petition as Annexure P/15) and opined that "if any one person of the family is already in Government service, then rest of the persons are not eligible to get compassionate appointment".
5. Contentions on behalf of the appellant is that though his brother is employed as Assistant Surgeon with the State Government but, since he is living separately, he cannot be construed as a "member of family" as contemplated in the Policy. Inference is drawn from two decisions rendered in Ku. Priyanka Dixit v. State of M.P. : Writ Petition No.3250/2006(s) decided on 17.7.2007 and Prakash Parmar v. Government of M.P. : 2012(4) MPLJ 539.
6. Counsel appearing on behalf of the State, however, submits that the Policy relates to compassionate appointment, it does not create any right in an incumbent for appointment, but only extend a privilege in favour of the wards of Government servant who die in harness and to retrieve the family from financial penury. It is urged that narrow :: 5 ::Writ Appeal No.373/2015
construction given to the expression 'member of family' as it appear in the Policy of 2008, that it will exclude such members of the family who are employed and live separately, would run contrary to the mandate of Article 16 of the Constitution of India, which guarantees equality of opportunity for all citizens in the matter of appointment to any office or of any employment under the State, inasmuch as, that even in case where in the family of Government servant, there are members who are in employment in Government service and are not residing with Government servant, but posted elsewhere, other member would claim employment that since the employed member does not live with family, which will frustrate the object of Policy. It is contended that the meaning given to family in these two judgments, therefore, needs reconsideration.
7. Considered the rival submissions.
8. The issue which crops up for consideration is whether Clause 4.1 of the Policy dated 18.8.2008 would entitle a member of the family of Government servant, who dies in harness, for appointment on compassionate ground, if :: 6 ::Writ Appeal No.373/2015
another member of deceased Government servant is in Government service, but not residing with the family.
9. Clause 2 of the Policy envisages class of person eligible for appointment on compassionate ground. Clause 2.2 which, we are concerned with, stipulates :
**2-2 fnoaxr 'kkldh; lsod dk iq= vFkok vfookfgr iq=h vFkok ,slh fookfgr iq=h ftlds ifr dh e`R;q gks pqdh gks vFkok tks rykd'kqnk gks] fdUrq 'krZ ;g gksxh fd ,slh vfookfgr] fookfgr vFkok rykd'kqnk iw=h fnoaxr 'kkldh; lsod dh e`R;q ds le; ml ij iw.kZr% vkfJr gksdj mlds lkFk jg jgh gks] vFkok mijksDr ik= lnL; u gksus dh fLFkfr esa fo/kok iw=o/kq tks 'kkldh; lsod dh e`R;q ds le; ml ij iw.kZr% vkfJr gksdj lkFk jg jgh gks A**
10. Careful reading of the Clause reveals that a son or unmarried daughter, or married daughter whose husband has died (widowed daughter) or divorcee daughter, subject to that such unmarried, married or divorcee daughter is wholly dependent on the deceased Government servant and is living with him/her. In case of non-availability of such persons, widowed daughter-in-law, wholly dependent and/or living with the Government servant at the time of death, are the persons eligible for appointment on compassionate ground.
:: 7 ::
Writ Appeal No.373/2015
11. Clause 4 lays down class of persons ineligible for appointment on compassionate ground. These are :
4- vuqdaik fu;qfDr ds fy;s vik=rk fuEufyf[kr fLFkfr esa vuqdia k fu;qfDr dh ik=rk ugha gksxh % 4-1 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] 4-2 ;fn fdlh 'kkldh; lsod dh e`R;q vf/kokf"kZdh vk;q iw.kZ djus ds ckn lsoko`f)@iqufuZ;qfDr@lafonk fu;qfDr ds nkSjku gksrh gS] 4-3 lkoZtkfud midez ds e`r dfeZ;ks ds ifjokj ds lnL;ksa dks 'kklu varxZr vuqdEik fu;qfDr dh ik=rk ugha gksxh A 4-4 dsUnz 'kklu ;k fdlh jkT; ljdkj }kjk vFkok mlds LoRok/khu ;k mlds }kjk fu;af=r fdlh lkoZtfud midze vFkok fuxe@eaMy@vk;ksx }kjk inP;qr O;fDr A 4-5 ;fn fnoaxr 'kkldh; lsod] izf'k{kq rnFkZ vFkok lafonk ds vk/kkj ij fu;qDr fd;k x;k gksA 4-6 fnukad 1-1-2007 ds iwoZ vLohd`r vFkok fujkfd`r izdj.kksa ij iwufoZpkj ugha fd;k tk;sxk A 4-7 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 gksxhA 4-8 dk;kZy; izeq[k@fu;qfDr izf/kdkjh bl ckr dks lqfuf'pr djus ds fy;s O;fDrxr :i ls ftEesnkj gkssaxs fd fnoxar 'kkldh; lsod ds ifjokj dks okLro esa rkRdkfyd lgk;rk ds :i esa vuqdaik fu;qfDr dh vko';drk gS A** :: 8 ::
Writ Appeal No.373/2015
English translation of these Clauses are : -
4. Ineligibility for compassionate appointment :
In the following circumstances, they are not eligible for compassionate appointment :-
4.1 If any eligible family member of the deceased government servant is already employed in government service, or corporation, board, council, commission etc. 4.2 If any government servant dies after completing the age of superannuation during extension of service/re-appointment/contractual appointment.
4.3 The family members of deceased employee of public sector shall not be eligible for compassionate appointment under the government.
4.4 Any person dismissed by the Central Government or any State Government or any Public Sector or Corporation/Board/Commission under its title or controlled by it.
4.5 If the deceased government servant has been appointed on the basis of apprentice, ad hoc or contract.
4.6 The cases rejected or disposed of before 1.1.2007 shall not be considered again.
:: 9 ::
Writ Appeal No.373/2015
4.7 No other member shall be eligible for compassionate appointment except those wholly dependent members, indicated at Serial No.2.1 to 2.4, of the family of deceased Government servant.
4.8 Office Head/Appointment Authority shall be personally responsible to ensure that the family of deceased government servant is really in need of compassionate appointment as an immediate aid.
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 vuqdia k 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 :: 10 ::
Writ Appeal No.373/2015
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 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 :: 11 ::Writ Appeal No.373/2015
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 :: 12 ::
Writ Appeal No.373/2015
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 :: 13 ::
Writ Appeal No.373/2015
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, :: 14 ::
Writ Appeal No.373/2015
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, :: 15 ::
Writ Appeal No.373/2015
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' :: 16 ::
Writ Appeal No.373/2015
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 :: 17 ::
Writ Appeal No.373/2015
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, :: 18 ::
Writ Appeal No.373/2015
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 -
:: 19 ::
Writ Appeal No.373/2015
"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 :: 20 ::Writ Appeal No.373/2015
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.
:: 21 ::
Writ Appeal No.373/2015
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.
(A.M. KHANWILKAR) (SANJAY YADAV)
CHIEF JUSTICE JUDGE
vinod