Umeshwar Prasad Choudhary vs State Of Chhattisgarh
2021 Latest Caselaw 642 Chatt

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                                                                         NAFR
             HIGH COURT OF CHHATTISGARH, BILASPUR

                      Writ Petition (S) No. 1952 of 2021

   1. Umeshwar Prasad Choudhary S/o Late Shri Samaliya Ram Choudhary, Aged
      About 30 Years R/o Village Gopalpur Post Bhobha Tahsil Chhuriya District
      Rajnandgaon Chhattisgarh                               ---- Petitioner

                                    Versus

   1. State Of Chhattisgarh Through The Secretary, Panchayat And Rural
      Development Department, Mahanadi Bhawan, Mantralay, Atal Nagar, District
      Raipur Chhattisgarh, District : Raipur, Chhattisgarh

   2. The Collector, Rajnandgaon, District Rajnandgaon Chhattisgarh, District :
      Rajnandgaon, Chhattisgarh

   3. The Chief Executive Officer, District Panchayat Rajnandgaon, District
      Rajnandgaon Chhattisgarh, District : Rajnandgaon, Chhattisgarh

   4. The  Chief Executive Officer, Janpad Panchayat Chhuriya            District
      Rajnandgaon Chhattisgarh, District : Rajnandgaon, Chhattisgarh
                                                          ----Respondents

For Petitioner                  :     Ms. Laxmin Kashyap, Advocate.
For State                       :     Ms. Akanksha Jain, Dy. G.A.


                    Hon'ble Shri Justice P. Sam Koshy
                              Order On Board
28.06.2021

1. Aggrieved by the action on the part of the respondents in rejecting the

claim of the petitioner for compassionate appointment vide Annexure

P/1 dated 16.09.2020, the present writ petition has been filed.

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

that the father of the petitioner was working as a Panchayat Secretary

under the respondents and he died in harness on 29.11.2017. On the

date of death of the deceased employee namely Lt. Shri Samaliya Ram

Choudhary, he was survived by the widow namely Smt. Maanvati

Choudhary, two sons and one daughter. There was yet another son of

the deceased whose name is not reflected in the list of dependent for

the reason that he, namely Dwivedi Prasad Choudhary, was already

married and has his own wife and children much before the deceased

has died. According to the Counsel for the petitioner is that infact the

said eldest brother had already taken its share in the family property

even by a way of a partition deed which was executed even before the

death of the deceased employee and thereafter he has been staying

separately along with his wife and children. The present petitioner

along with his sister, brother and the widow were directly and solely

dependent upon the source of income of the deceased. The sister of

the petitioner also stands married and stays along with her husband

and in-laws. Hence, the only three persons were left dependent upon

the earning of the deceased employee were the petitioner, his brother

Human Prasad Choudhar and his mother. When the petitioner moved

his application, the same was rejected on the technical note of another

member in the family being in government employment.

3. The Counsel for the petitioner submits that since the eldest brother is

already married and he is having his own family and children, thus he

would not fall within the amid of a dependent of the deceased, nor can

he be expected to take care of the dependent of the deceased when he

himself has his own responsibility and liability towards his family.

4. 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.

5. 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

hyper-technical ground specifically dis-entitling 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 dependant upon the earnings of deceased

employee would therefore 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. 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.

9. 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.

10. Thus, for all the aforesaid reasons, the impugned order,

Annexure P-1, deserves to be and is accordingly set aside. The

authorities are directed to re-consider the claim of 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.

11. The writ petition accordingly stands disposed of.

Sd/-

1. P. Sam Koshy Judge

Jyotijha