Nilesh Sahu vs State Of Chhattisgarh
2021 Latest Caselaw 1121 Chatt

                                         -1-


                                                                                    NAFR
             HIGH COURT OF CHHATTISGARH AT BILASPUR

                             WPS No. 3580 of 2021

     Nilesh Sahu, S/o Late Shri Kumar Ram Sahu, Aged About 28 Years R/o
     Village Jangalpur, Vikas Block, Dongargaon District Rajnandgaon
     Chhattisgarh

                                                                          ---- Petitioner

                                       Versus

  1. State Of Chhattisgarh Through The Secretary, School Education
     Department,      Mahanadi   Bhawan,        Nawa   Raipur,      District   -   Raipur
     Chhattisgarh

  2. Director, Directorate Of Public Education, Indravati Bhavan, Atal Nagar,
     Nawa Raiour, Raipur Chhattisgarh

  3. District   Education   Officer,    Rajnandgaon,     District     -    Rajnandgaon
     Chhattisgarh

                                                                     ---- Respondents

     For Petitioner              :        Ms. Khushboo Dua, Advocate.
     For State                   :        Ms. Abhyunnati Singh, Panel Lawyer.

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

14/07/2021

1. Aggrieved by the order dated 17.06.2021, the present writ petition has

been filed. Vide the impugned order respondents have rejected the claim

of the petitioner for grant of compassionate appointment. The rejection of

the candidature of the petitioner is on the ground that elder brother to the

petitioner is already in government employment and therefore under the

policy for compassionate appointment the petitioner cannot be granted

appointment.

2. The brief facts relevant for disposal of the present writ petition is that the

father of the petitioner was working under the respondents as Lecturer,

Government Higher Secondary School and was posted at the School At

Karamtara Block Dongargaon District Rajnandgaon. The father of the

petitioner died in harness on 07.04.2020. ON the date of death of

deceased employee i.e. the father of the petitioner, he was survived by his

widow and two sons, the petitioner and one other elder son. On the date of

death of the deceased the widow and the petitioner who were totally

dependent upon the income of the deceased and that other son of the

deceased employee was already married long back during the lifetime of

the deceased employee itself and he has his own family and children to

take care of and the said son that is the elder brother of the petitioner was

also living separately as he was posted elsewhere.

3. According to the petitioner, since the elder son as his own family

responsibility and liabilities, he was not in a position to financially sustain

the petitioner and his mother after the death of the deceased employee

and that they were exclusively dependent upon the income of the

deceased alone.

4. Given the said facts, the petitioner had moved an application for

compassionate appointment which now stands rejected vide impugned

order only on the technical ground of elder brother to the petitioner being

in government employment. According to the petitioner, once when the

elder son already got married during the lifetime of the deceased

employee himself and he also got the employment and was posted

elsewhere, he was no longer dependent upon the deceased and he had

his own family set up to take care of. That only because the elder son in

the family was in employment cannot be a ground for rejecting the claim of

the petitioner from being considered for compassionate appointment.

According to the petitioner the authorities ought to have conducted

preliminary enquiry at least in this regard so far as ascertaining the

dependency part and only thereafter should authorities have taken a

decision on the claim of the petitioner for compassionate appointment.

According to the petitioner the rejection of the claim application of the

petitioner on the technical ground of someone in the family being in

employment is bad and is also arbitrary and would also defeat the very

purpose for which the policy for compassionate appointment is framed and

enacted. According to the petitioner the very purpose for which the State

has enacted the policy of compassionate appointment is to ensure that the

family of the deceased employee is not put to the stage of penury or

financial stringencies because of the death of sole bread earner of the

family. If somebody in the family is already in employment what needs to

be ascertained is to whether there is any dependent upon them of the

dependents and whether the said person is in a capacity to sustain the

widow and other dependents to the deceased.

5. All these need to be verified ascertaining after due scrutiny and only

thereafter should a decision have been taken by the respondents. Thus,

the impugned order to that extent deserves to be set aside/quashed and

matter needs to be remitted back to the authorities for a fresh

consideration after due scrutiny and ascertainment of the aforesaid facts.

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

since the two brothers of the petitioner are 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 Vs. State of

Chhattisgarh & Others). The said Writ Petition was allowed on

18.2.2020wherein 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 brothers of Petitioner who are in government employment are

providing any assistance to Petitioner or not and also whether those

brothers have married and have their own family or not and whether they

are 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

specifically disentitling the Petitioner for claiming compassionate

appointment in the event of 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 whose 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 dependent 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 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 two brothers in government employment, what

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

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

care of the petitioner and his widowed mother particularly when they have

their own family and children to take care of and they have 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 to be 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 two brothers. In view of

the same the rejection of the impugned order only on the basis of elder son

in the family being in government employment in terms of the policy of the

State Government would not be sustainable. 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 order, Annexure P-1

dated 17.06.2021 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