Sudhir Banjare vs State Of Chhattisgarh
2021 Latest Caselaw 2197 Chatt

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                                                                       NAFR
             HIGH COURT OF CHHATTISGARH AT BILASPUR

                            WPS No. 4702 of 2021

      Sudhir Banjare S/o Late Laxman Singh Banjare, Aged About 27
      Years, R/o Village Somni, Post Somni, District Rajnandgaon
      Chhattisgarh

                                                               ---- Petitioner
                                  Versus
   1. State Of Chhattisgarh Through The Secretary, Department Of
       Higher Education, Mahanadi Mantralaya, Naya Raipur, Post Office
       And Police Station Naya Raipur, Atal Nagar, District Raipur
       Chhattisgarh

   2. Commissioner, Directorate Of Higher Education, Block 2nd And 3rd
       Floor, Indrawati Bhawan, Naya Raipur, Atal Nagar, District Raipur
       Chhattisgarh

   3. District Education Officer, Rajnandgaon, Chhattisgarh,

   4. Block Education Officer, Rajnandgaon, District Rajnandgaon
       Chhattisgarh

                                                         ---- Respondents

For Petitioner          :       Mr. S. S. Baghel, Advocate.
For State               :       Ms. Sunita Jain, Govt. Advocate


                  Hon'ble Shri Justice P. Sam Koshy
                           Order on Board
07/09/2021

1. Aggrieved by the order dated 24.07.2021 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 brothers of

petitioner have been found in government employment.

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

father of petitioner working on the post of Head Master died in

harness on 31.03.2021. On the date of death of the employee, he

was survived by his widow and four children out of which three sons

and one daughter and the petitioner is the youngest son among

them.

3. The contention of the petitioner is that his two elder brothers and one

sister are already married and they have their own family and

children to take care of. Further contention of petitioner is that his

two elder brothers were staying at different places altogether and

they were no longer dependent upon the deceased neither were

they providing any financial assistance to the widow and the

petitioner for their sustenance. The contention of the counsel for

petitioner is that on the date of death of the employee on 31.03.2021

it was the widow and the petitioner who were directly dependent

upon the income of the deceased. As regards the elder brothers of

petitioner, they had also received employment much before the

death of the employee and as such, they were not dependent upon

the income of the deceased employee. Further contention of the

petitioner is that since there was no financial assistance provided by

the elder brothers, the question of dependency ought to have been

examined and verified by the department before the claim of the

petitioner was rejected on hyper-technical ground of the elder

brothers of the petitioner being in government employment. The

claim of petitioner is also on the basis of the resolution of the Gram

Panchayat dated 02.02.2021 whereby they have given a specific

finding that the two elder brothers are living separately and they

have their own ration cards in their name issued establishing the fact

that they were living separately and were not dependent upon the

income of the deceased employee. Thus, the impugned order to

that extent deserves to be set aside/quashed and the 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 brothers of 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

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 brothers of petitioner is in government

employment, what needs to be verified is whether the said persons

can be brought within the ambit of dependent. Whether the said

persons can be compelled to take care of the petitioner 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 elder brothers.

11.In view of the same, the rejection of the impugned order only on the

basis of elder sons 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 24.07.2021 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