Prena Jain vs State Of Chhattisgarh
2021 Latest Caselaw 2157 Chatt

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                                                                             AFR
              HIGH COURT OF CHHATTISGARH AT BILASPUR

                                 WPS No. 4795 of 2021

      Prena Jain D/o Jayanti Lal Jain, Aged About 25 Years, R/o
      Awaspara, Ward No. 5, Jaitakarra, Charama, District Kanker
      (Chhattisgarh)

                                                                   ---- Petitioner
                                        Versus
   1. State Of Chhattisgarh Through Secretary, Education Department,
      Mantralaya, Mahanadi Bhawan, Nava Raipur, Atal Nagar, District
      Raipur (Chhattisgarh)

   2. Director, Public Instructions, Indravati Bhawan, Nava Raipur, Atal
      Nagar, District Raipur (Chhattisgarh)

   3. District Education Officer, Kanker, District Kanker (Chhattisgarh)

   4. Block      Education       Officer,    Block   Charama,   District   Kanker
      (Chhattisgarh)

                                                                ---- Respondents

For Petitioner : Mr. C. Jayant K. Rao, Advocate. For State : Ms. Akanksha Jain, Dy. Govt. Advocate

Hon'ble Shri Justice P. Sam Koshy Order on Board 06/09/2021

1. Aggrieved by the order dated 06.08.2021 Annexure P-1 the present

writ petition has been filed. Vide the impugned order, the claim of

petitioner for grant of compassionate appointment has been

rejected. The rejection is on the ground that the elder brother of

petitioner has been found in government employment.

2. The facts of the case in brief are that the father of petitioner namely

Jayanti Lal Jain was working as a Head Master in Govt. Primary

School who died in harness on 06.04.2021. On the date of death of

the employee, he was survived by his widow, the petitioner and one

elder son.

3. The contention of the counsel for petitioner is that on the date of

death of the employee on 06.04.2021 it was the widow and the

petitioner who were directly dependent upon the income of the

deceased. As regards the elder brother of petitioner, he was married

long before the death of employee and had also received

employment much before the death of the employee and as such, he

was not dependent upon the income of the deceased employee.

Further contention of petitioner is that since the elder brother was

already married long before the death of employee and was staying

at a different place altogether, the said elder brother was no longer

dependent upon the deceased neither was he providing any

financial assistance to the widow and the petitioner for their

sustenance. The elder brother and his family were a separate unit

altogether and on account of the employment of the elder brother,

the claim for compassionate appointment to the petitioner cannot be

refused or rejected. The contention of the petitioner is that the

respondent authorities ought to have conducted an inquiry for

ascertaining the dependency part and only thereafter they should

have rejected the claim of petitioner. 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.

4. The State counsel, on the other hand, opposing the petition submits

that since the elder brother of 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

respondents 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 hyper technical ground specifically dis-entitling

the Petitioner for claiming compassionate appointment in the event

of family member 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 member and the so called

persons who are in government employment 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 the brother of petitioner 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 particularly

when he has his own family and children to take care of and he has

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 elder brother.

11.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 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 06.08.2021 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

preferably within an outer limit of 90 days from the date of receipt of a

copy of this order.

13.Writ Petition is allowed and disposed of accordingly.

Sd/-

(P. Sam Koshy) Judge

Khatai