Ku. Jaishree vs State Of Chhattisgarh
2021 Latest Caselaw 1993 Chatt

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                                                                                 NAFR
             HIGH COURT OF CHHATTISGARH AT BILASPUR

                             WPS No. 4438 of 2021
     Ku. Jaishree D/o Late Budhar Lal, Aged About 29 Years R/o. Sharda Para,
     J.P. Chowk Camp-2, Ward No. 22, Behind Shrawan Kirana Stores, Bhilai
     Power House, District Durg Chhattisgarh
                                                                     ---- Petitioner
                                      Versus
  1. State Of Chhattisgarh Through Secretay, Home Department, Mantralaya,
     Mahanadi Bhawan, Atal Nagar, Nawa Raipur, District Raipur Chhattisgarh
  2. Director General Of Police, Police Head Quarter, Atal Nagar, Nawa Raipur,
     District Raipur Chhattisgarh
  3. Deputy Inspector General Of Police And Senior Superintendent Of Police,
     Raipur, District Raipur (Chhattisgarh)
                                                                  ---- Respondents

     For Petitioner               :      Mr. T. K. Jha, Advocate.
     For State                    :      Ms. Binu Sharma, PL

                      Hon'ble Shri Justice P. Sam Koshy
                               Order on Board

25/08/2021

1. Aggrieved by the order Annexure P-2 dated 02.06.2021 the present writ

petition has been filed. Vide the impugned order the respondents have

rejected the claim of the petitioner for grant of compassionate appointment

on the ground that the elder brother of the petitioner is found to be in

government employment.

2. Brief facts relevant for the adjudication of the present writ petition is that

the father of the petitioner was working in the Police Department under the

respondents as a Constable and who died in harness on 25.03.2021.

Subsequent to the death of the deceased the petitioner had moved an

application for compassionate appointment which now vide the impugned

order stands rejected leading to the filing of the present writ petition.

3. Contention of the petitioner is that on the date of death of the deceased he

was survived by his wife, the widow and the five children. Further

contention of the petitioner is that three of the siblings are already married

and staying separately and on the date of death i.e. 25.03.2021, it was the

widow namely Amrika Bai along with the petitioner and another sister who

were the three dependents upon the deceased and were totally depending

upon the income of the deceased.

4. Further contention of the petitioner is that her elder brother Jitendra Kumar

was already married and has his own family to take care of and he lives

separtely at a different place. He got is employment and he also got

married much before the death of the deceased. Similarly, the two elder

sisters of the petitioenr namely Jyoti and another namely Jaya both of

them also are married and staying at their respective matrimonial homes.

It is the further contention of the petitioner that even the ration card that

the deceased employee had on the date of death of the deceased it was

the widow and two childrens name which were reflected and not of any

other family members which would establish the fact that the petitioner and

the mother and one sister are the only three persons who were depending

upon the deceased. However, without conducting any sort of enquiry only

on hyper technical ground of the clause in the policy for compassionate

appointment the claim of the petitioner stands rejected without verification

of the dependency aspect. The rejection has been only on the ground that

the brother of the petitioner was found to be in government employment

whereas according to the petitioner the said brother had already got

married and was in employment long before the death of the deceased

and he was staying separately. Therefore he was not any longer the

dependent in the family who could sustain the petitioner and other

dependents of the deceased.

5. It is the contention of the petitioner that since brother got his employment

long back and he has already married and he has his own family and

children and also living separately and not supporting financially, they do

not fall within the definition of dependents of the deceased. Moreover, the

brother who has already married and has his own family depending upon

him, cannot be considered to be a permanent source of income for the

petitioners and her widowed mother for sustaining themselves. To that

extent the authorities ought to have conducted an enquiry and thereafter

should have taken a decision.

6. The State counsel on the other hand opposing the petition submits that

since the brother of the petitioner is already in government employment, in

terms of the policy for compassionate appointment the candidature of the

applicant has been rejected and in the absence of any challenge to the

policy, the decision of the respondent cannot be said to be bad.

7. At this juncture, it would be relevant to take note of a recent judgment

passed by this Court in WPS No. 1025/2020 (Nandini Pradhan &another

Vs. State of Chhattisgarh & Others). The said Writ Petition was allowed

on 18.2.2020 wherein the Court has relied upon the judgment passed on

an earlier occasion in the case of Smt.Sulochana Netam Vs. State of

Chhattisgarh & Others in WPS No.2728/2017 decided on 23.11.2017

wherein this Court had allowed the said Writ Petition and set-aside the

earlier order passed by the authorities and had remitted the matter back

for a fresh consideration of the claim of Petitioner after due verification of

dependency aspect,firstly upon the deceased employee and secondly

whether the brother of Petitioner who is in government employment is

providing any assistance to Petitioner or not and also whether that brother

has married and has his own family or not and whether he is staying along

with petitioner or not. These are the facts which ought to have been

verified while rejecting the claim of Petitioner in the present Writ Petition

and which does not seem to have been considered by the authorities and

they simply passed an order on hyper technical ground relying upon the

policy for compassionate appointment, specifically disentitling the

Petitioner for claiming compassionate appointment in the event of other

family members of deceased employee being in government employment.

8. This Court is of the firm view that the intention by which the said clause

inserted by the State Government in the policy of compassionate

appointment was to ensure that the compassionate appointment can be

given to a person who is more needy. It never meant that in the event of

there being somebody in the government employment in the family of

deceased employee, the claim for compassionate appointment would

stand rejected only on that ground. Moreover, in the opinion of this Court

the possibility cannot be ruled out of the so called earning members and

the so called persons who are in government employment from among the

family members of deceased employee having their own family liabilities

and in some cases are far away from the place of deceased employee and

staying along with their own family. The rejection of the claim for

compassionate appointment to a person who was directly dependant upon

the earnings of deceased employee would be arbitrary and would also be

in contravention of the intentions of framing the scheme for compassionate

appointment.

9. In the case of Sulochana (supra), in paragraph 9, this Court dealing with

the said issue has held as under:-

"9. In the considered opinion of this Court, in a case, where

claim of compassionate appointment is made on the ground that

the other member of the family had started living separately and

not providing any financial help to the remaining dependent

members of the family, who are at lurch,factual enquiry ought to

be made by the competent authority to arrive at its own

conclusion of facts as to whether this assertion of other earning

member living separately is factually correct or not. If it is found,

as a matter of fact, that the other earning member of the family at

the time of death had already started living separately and not

providing financial assistance to the remaining dependents of

the family, compassionate appointment must follow to eligible

dependent of the family. However, in the enquiry, if it is found

that the claim is only to get employment without there being any

need because other earning member of the family is not living

separately and providing financial support compassionate

appointment may not follow. The aforesaid enquiry is required to

be done even though the policy does not categorically state so.

The State should consider by incorporating amendments in the

policy to deal with this such contingency where it is found that

on the date of death of government servant, the other earning

member was living separately and not providing any financial

help."

10. The aforesaid principles of law laid down in the case of Sulochana(supra)

have been followed by this Court in a large number of cases and that is the

consistent stand of the various branches of this Court in the past many

years now. This Court is also in the given circumstances inclined to hold

that the rejection of the application of Petitioner No.2 for compassionate

appointment by a single line order only on the basis of the clause

mentioned in the scheme or policy of compassionate appointment of the

State Government would not be sustainable. There ought to have been

some sort of preliminary enquiry so far as dependency part is concerned

conducted by the Respondents prior to reaching to a conclusion.

11. Considering the fact that elder brother is in government employment,what

needs to be verified is whether the said person can be brought within the

ambit of dependent. Whether the said person can be compelled to take care

of the petitioner and his widowed mother particularly when he has his own

family and children to take care of and he has been living separately

altogether.

12. In the absence of any such situation, the policy of the State Govt. to that

extent so far as compassionate appointment is concerned, has tobe read

down to be decided only after an enquiry which needs to be conducted by

the respondents, ascertaining the dependency part and also in respect of

any support which the petitioner is getting from the brother. For the

aforesaid reason, the impugned order needs to be reconsidered and the

rejection of the candidature of the petitioner by strict interpretation of the

policy would not be sustainable.

13. Thus, for all the aforesaid reasons, the impugned orders (Annexure P/2

dated 02.06.2021 deserves to be and is accordingly set-aside. The

authorities are directed to re-consider the claim of the Petitioner afresh

taking into consideration the observations made by this Court in the

preceding paragraphs and take a fresh decision at the earliest within an

outer limit of 90 days from the date of receipt of copy of this order.

14. Writ Petition is allowed and disposed of accordingly

Sd/-

(P. Sam Koshy) Judge Rohit