Digendra Patel vs State Of Chhattisgarh
2021 Latest Caselaw 1437 Chatt

                                            1


                                                                                  NAFR

                  HIGH COURT OF CHHATTISGARH AT BILASPUR

                                 WPS No. 3931 of 2021
     Digendra Patel S/o Late Ashok Kumar Patel Aged About 28 Years Caste
     Marar, R/o Budhwari Bazar, Narayanpur, Post And Tahsil Narayanpur,
     District Narayanpur Chhattisgarh.
                                                                        ---- Petitioner
                                         Versus
     1.      State Of Chhattisgarh Through The Secretary, Public Health
             Engineering Department, Mantralaya, Mahanadi Bhawan, Atal
             Nagar, Nawa Raipur, District Raipur Chhattisgarh.
     2.      Superintendent Engineer Public Health Engineering Department,
             Kondagaon Region, Kondagaon, District Kondagaon Chhattisgarh.
     3.      Executive Engineer Public           Health   Engineering     Department,
             Narayanpur Chhattisgarh.
                                                                  ----Respondents

     For Petitioner                          :       Mr. D.N. Prajapati, Advocate
     For State                               :       Mr. Ayaz Naved, G.A.


                         Hon'ble Shri Justice P. Sam Koshy
                                  Order on Board
29/07/2021

1. Aggrieved by the orders dated 02.12.2019 & 05.11.2019 collectively

marked as Annexure P/1, the present writ petition has been filed.

Vide the impugned orders the claim of the petitioner has been

rejected on the ground that the elder brothers of the petitioner are

found to be in government employment.

2. The facts of the case in brief is that the father of the petitioner was

working on the post of Peon under the respondents and he died in

harness on 05.08.2018. According to the petitioner, on the date of

death it was the petitioner and his widowed mother, who were

directly depending upon the deceased and they were the only

dependents to the deceased on the date of death. It is the further

contention of the petitioner that the deceased was survived by his

widow and three sons i.e. the petitioner and two of his elder

brothers. It is the further contention of the petitioner that both his

elder brothers are in government employment and both of them are

also married. According to the petitioner, both the elder brothers got

their employment and also got married much before the deceased

had expired and they were living separately with their respective

families. That the fact that they were not dependents to the

deceased could be established from the fact that both the elder

brothers had their own independent individual Ration Card

depicting their names and their family members name, wherein the

name of the petitioner has not been reflected. This according to the

petitioner would also establish the fact that they are no longer the

dependents and it was the petitioner alone who was the dependent.

According to the petitioner, the respondents ought to have

conducted some short of an enquiry to ascertain the dependency

part before rejecting the application.

3. It is the contention of the petitioner that since two brothers got their

employment long back and they have already married and they

have their 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 two brothers who have

already married and have their own family depending upon them,

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

petitioner 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.

4. 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.

5. 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 18.2.2020 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 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 hypertechnical ground

specifically disentitling the Petitioner for claiming compassionate

appointment in the event of family members of deceased employee

being in government employment.

6. 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.

7. 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."

8. 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.

9. 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.

10. 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. 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.

11. Thus, for all the aforesaid reasons, the impugned orders, Annexure

P-1 dated 02.12.2019 & 05.11.2019 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.

12. Writ Petition is allowed and disposed of accordingly.

Sd/-

(P. Sam Koshy) Judge Ved