Ku. Kalpana Sahu vs State Of Chhattisgarh
2021 Latest Caselaw 875 Chatt

                                               1




                                                                                    NAFR

                    HIGH COURT OF CHHATTISGARH AT BILASPUR

                                   WPS No. 3285 of 2021

     Ku. Kalpana Sahu D/o Late Shri Ishwar Prasad Sahu Aged About 30 Years
     Resident Of Bhatheli Bhakra, Tahsil Kurud, District Dhamtari (Chhattisgarh)
                                                                    ---- Petitioner
                                           Versus
     1.      State Of Chhattisgarh Through The Secretary, Education Department,
             Mantralaya, Mahanadi Bhawan, Atal Nagar, Naya Raipur, District
             Raipur (Chhattisgarh)
     2.      District Education Officer Dhamtari, District : Dhamtari, Chhattisgarh

                                                                     ---- Respondents

For Petitioner : Mr. Ajay Shrivastava, Advocate For State : Mr. Jitendra Pali, Dy. A.G.

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

06/07/2021

1. The present writ petition has been filed aggrieved of the order

Annexure P/1 dated 26.10.2020, whereby the claim for compassionate

appointment has been rejected. The rejection is on the ground that the

brother of the petitioner is in government employment.

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

father of the petitioner late Ishwar Ram Sahu was working as a

Headmaster Middle School under the respondents. He died in harness

on 20.02.2019. On the date of the death of the deceased late Ishwar

Ram Sahu, he was survived by his widow Kesar Sahu and the present

petitioner Ku. Kalpana Sahu as his dependent. In addition, the

deceased also had another son and another daughter namely Dipesh

Sahu and Smt. Kiranmala Sahu, both Dipesh Sahu and Kiranmala

Sahu, the son and the eldest daughter of the deceased are already

married much before the death of the deceased and they have their

own family to take care of. The petitioner and the widow of the

deceased were the two persons who were totally dependent upon the

income of the deceased and after the death of the deceased, the

petitioner and the widow of the deceased are facing great hardship in

making both ends meet because of the financial constraints that arose

on account of the death of the deceased-the sole bread earner in the

family. After the death, the petitioner in the capacity of an unmarried

daughter had applied for compassionate appointment on 12.03.2019.

The same was after processing finally rejected vide order dated

26.10.2020 i.e. the impugned order under challenge in the present writ

petition.

3. The counsel for the petitioner submits that the ground on which the

rejection of the claim application is not sustainable for the reason that

on the date of death of the deceased, the petitioner and the widow of

the deceased were totally dependent upon the salary of the deceased

and they had no other source of income to sustain. It is the further

contention of the petitioner that the elder brother Dipesh Sahu always

was married as early as in the year 2015 and he had his own wife and

children to take care of and they were living separately at a different

place and as such were not sustaining the dependents of the

deceased i.e. the petitioner and her mother or providing financial

assistance. Similarly, the eldest daughter Kiranmala also was already

married and was staying at her matrimonial house and had her own

family and children.

4. According to the petitioner, the respondent authorities ought to have

conducted a minimum enquiry to that extent as to whether the

petitioner did have any sufficient source of income to sustain

themselves and only thereafter should the authorities have taken a

decision on the claim of the petitioner for compassionate appointment.

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

since the elder 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.

6. At this juncture, it would be relevant to take note of a recent judgement

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.

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 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 there is an elder brother 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. It would had been

a different case if the government employee i.e. the elder brother to

the petitioner could have been unmarried and was living along with the

petitioners which could have forced us to infer that he was there for

sustenance of the family.

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 petitioners are getting from

the elder 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.

12. Thus, for all the aforesaid reasons, the impugned order, Annexure P-1

dated 26.10.2020 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.

13. Writ Petition is allowed and disposed of accordingly.

Sd/-

(P. Sam Koshy) Judge Ved