Kevra Bai Markandey vs State Of Chhattisgarh
2021 Latest Caselaw 1279 Chatt

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                                                                                 NAFR

                    HIGH COURT OF CHHATTISGARH AT BILASPUR

                                  WPS No. 3750 of 2021
     1.      Kevra Bai Markandey W/o Late Shri Garjan Ram Markandey Aged
             About 54 Years R/o Devarbood, Post Tahsil And P. S. Bilaigarh,
             District Baloda Bazar-Bhatapara Chhattisgarh
     2.      Devanand Markandey S/o Late Shri Garjan Ram Markandey Aged
             About 27 Years R/o Devarbood, Post Tahsil And P. S. Bilaigarh,
             District Baloda Bazar-Bhatapara Chhattisgarh
                                                                     ---- Petitioners
                                           Versus
     1.      State Of Chhattisgarh Through The Secretary, Department Of Tribal
             Development Mahanadi Bhawan, Mantralaya, Police Station And Post
             Rakhi, Atal Nagar, Nawa Raipur District Raipur Chhattisgarh
     2.      Director Office Of Director, Department Of Tribal Development,
             Indravati Bhawan, Police Station And Post Rakhi, Atal Nagar, New
             Raipur District Raipur Chhattisgarh
     3.      Assistant Commissioner Department Of Tribal Development, Office Of
             Collector, Baloda Bazar District Baloda Bazar-Bhatapara Chhattisgarh
                                                                   ----Respondents

For Petitioners : Mr. Abhishek Pandey, Advocate along with Ms. Deepika Sannat, Advocate For State : Mr. Neeraj Pradhan, Panel Lawyer

Hon'ble Shri Justice P. Sam Koshy Order on Board 22/07/2021

1. Aggrieved by the orders (Annexure P/7 & P/8) dated 27.06.2019 &

11.02.2021, the present writ petition has been filed. Vide the said

impugned orders, the respondents have rejected the claim of the

petitioner No.2 for grant of compassionate appointment on the ground

that elder brother of the petitioner No.2 is already in government

employment.

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

that the father of the petitioner No.2 late Garjan Ram Markandey was

working as a Rasoiyya (Cook) under the respondents. He died in

harness on 17.10.2018. On the date of death of the deceased

employee was survived by wife and two sons. The elder son was

already married and was in employment, posted elsewhere, living

separately and not supporting the petitioners. On the date of death,

the petitioners were the persons totally dependent upon the

deceased.

3. On the death of the deceased namely Garjan Ram Markandey, the

petitioner No.2 had moved an application for compassionate

appointment, however, vide the impugned orders the application has

been rejected on the sole ground that the elder brother of the

petitioner No.2 is already in government employment.

4. It is the contention of the petitioners 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 his widowed

mother for sustaining themselves. To that extent the authorities ought

to have conducted an enquiry and thereafter should have taken a

decision.

5. The State counsel on the other hand opposing the petition submits

that since the brother of the petitioner No.2 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.

6. 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 hypertechnical ground

specifically disentitling the Petitioner for claiming compassionate

appointment in the event of family members of deceased employee

being in government employment.

7. 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 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.

8. 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."

9. 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.

10. 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.

11. 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 No.2 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

No.2 by strict interpretation of the policy would not be sustainable.

12. Thus, for all the aforesaid reasons, the impugned orders (Annexure

P/7 & P/8) dated 27.06.2019 & 11.02.2021 deserve to be and is

accordingly set-aside. The authorities are directed to re-consider the

claim of the Petitioner No.2 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.

13. Writ Petition is allowed and disposed of accordingly.

Sd/-

(P. Sam Koshy) Judge

Ved