Chattisgarh High Court
State Of Chhattisgarh vs Smt Madhuri Sharma on 6 April, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WA No. 181 of 2022
1. State of Chhattisgarh Through The Secretary, Department Higher
Education, Mahanadi Bhawan, Mantralay Police Station And Post
Rakhi, Atal Nagar, Nawa Raipur District Raipur Chhattisgarh.
2. The Deputy Director, Directorate Of Higher Education, Office of
Commissioner, Block 3-C, 2nd And 3rd Floor, Indravati Bhawan,
Atal Nagar, Police Station And Post Rakhi, Atal Nagar, Nawa
Raipur District Raipur Chhattisgarh.
3. Principal, Government Engineering P.G. College, Korba District -
Korba Chhattisgarh. Correct Name (Government Engineer Post
Graduate College Korba District - Korba Chhattisgarh)
---- Appellants
Versus
1. Smt Madhuri Sharma Smt. Madhuri Sharma Aged About 56 Years
R/o Quarter No. F/16, SECL Colony, 15 th Block Korba Police
Station - City Kotwali, Tahsil And District - Korba Chhattisgarh.
2. Rajan Sharma S/o Late Shri Shrinath Sharma Aged About 27
Years R/o Quarter No. F/16, SECL Colony, 15 th Block Korba,
Police Station -City Kotwali, Tahsil And District Korba,
Chhattisgarh.
---- Respondents
(Cause-title taken from Case Information System)
For Appellants : Mr. H.S. Ahluwalia, Deputy Advocate General.
For Respondents : Mr. Abhishek Pandey, Advocate.
Hon'ble Shri Arup Kumar Goswami, Chief Justice
Hon'ble Shri Gautam Chourdiya, Judge
Judgment on Board
Per Arup Kumar Goswami, Chief Justice
06.04.2022
Heard Mr. H.S. Ahluwalia, learned Deputy Advocate General,
appearing for the appellants. Also heard Mr. Abhishek Pandey, learned
counsel,appearing for the respondents/writ petitioners.
2. This appeal is presented against an order dated 16.09.2021
passed by the learned Single Judge in WPS No. 4948 of 2021.
3. The husband of respondent No. 1 and father of respondent No. 2,
while working as Laboratory Technician under the appellant No. 3
institution, died-in-harness on 16.03.2020.
4. The respondent No. 2 had filed an application for compassionate
appointment, which came to be rejected by an order dated 03.06.2021.
Challenging the same, the writ petition was filed. The learned Single
Judge, relying on the decision rendered in the case of Smt. Sulochana
Netam v. State of Chhattisgarh & Others (WPS No. 2728 of 2017,
decided on 23.11.2017), vide order dated 16.09.2021, set aside the
order dated 03.06.2021 and directed the appellants to re-consider the
claim of the respondent No. 2 (writ petitioner No.2), after taking into the
consideration the observations made in Smt. Sulochana Netam (supra)
within an outer period of 90 days.
5. Mr. Ahluwalia submits that the issue is covered by the judgments
of this Court in the cases of Neeraj Kumar Uke v. State of Chhattisgarh
and others (WA No. 334 of 2021) decided on 10.12.2021 and State of
Chhattisgarh and Others v. Kevra Bai Markandey and Another (WA No.
91 of 2022) decided on 23.02.2022.
6. Clause 6(A) of the Consolidated Revised Instructions regarding
compassionate appointment on the death of a government servant
during his service, 2013 (for short, the 'Consolidated Revised
Instructions, 2013'), as translated to English, reads as follows:
"6(A) In the family of the deceased married government
employee, if any other member of the family is already
in government service, then no other member of the
family will be eligible for compassionate appointment."
7. In the case of Smt. Sulochana Netam (supra), the husband of the
petitioner, who was working as a Constable, died in harness on
11.01.2017 leaving behind a 10 month old daughter and the petitioner.
They were dependent on the deceased government employee. Claim of
compassionate appointment of the petitioner was rejected on the ground
that the father-in-law of the petitioner was in government service. It was
in that background the learned Single Judge directed the authorities to
verify as to whether the father-in-law was living separately and was
providing financial help, and accordingly, remanded the matter for fresh
consideration.
8. A Division Bench of this Court, in Neeraj Kumar Uke (supra), at
paragraphs 9, 10, 11, 12, 14, 15 and 16, observed as follows:
9. In Umesh Kumar Nagpal v. State of Haryana,
reported in (1994) 4 SCC 138, the Hon'ble Supreme
Court, in paragraph 2, observed as follows:
"As a rule, appointments in the public services
should be made strictly on the basis of open
invitation of applications and merit. No other
mode of appointment nor any other
consideration is permissible. Neither the
Governments nor the public authorities are at
liberty to follow any other procedure or relax
the qualifications laid down by the rules for
the post. However, to this general rule which
is to be followed strictly in every case, there
are some exceptions carved out in the
interest of justice and to meet certain
contingencies. One such exception is in
favour of the dependants of an employee
dying in harness and leaving his family in
penury and without any means of livelihood.
In such cases, out of pure humanitarian
consideration taking into consideration the
fact that unless some source of livelihood is
provided, the family would not be able to
make both ends meet, a provision is made in
the rules to provide gainful employment to
one of the dependants of the deceased who
may be eligible for such employment. The
whole object of granting compassionate
employment is thus to enable the family to
tide over the sudden crisis. The object is not
to give a member of such family a post much
less a post for post held by the deceased."
(emphasis added)."
10. In State Bank of India & Another v. Somvir Singh ,
reported in (2007) 4 SCC 778, the Hon'ble Supreme Court
observed as under:
"7. Article 16(1) of the Constitution of India
guarantees to all its citizens equality of
opportunity in matters relating to employment or
appointment to any office under the State. Article
16(2) protects citizens against discrimination in
respect of any employment or office under the
State on grounds only of religion, race, caste,
sex, descent. It is so well settled and needs no
restatement at our ends that appointment on
compassionate grounds is an exception carved
out to the general rule that recruitment to public
services is to be made in a transparent and
accountable manner providing opportunity to all
eligible persons to compete and participate in the
selection process. Such appointments are
required to be made on the basis of open
invitation of applications and merit. Dependants
of employees died in harness do not have any
special or additional claim to public services
other than the one conferred, if any, by the
employer."
11. In State Bank of India v. Raj Kumar, reported in
(2010) 11 SCC 661, the Hon'ble Supreme Court observed
that it is well settled that appointment on compassionate
grounds is not a source of recruitment and that it is an
exception to the general rule that recruitment to public
services should be on the basis of merit by open invitation
providing equal opportunity to all eligible persons to
participate in the selection process. The dependants of
employees, who die in harness, do not have any special
claim or right to employment, except by way of the
concession that may be extended by the employer under
the Rules or by a separate scheme, to enable the family
of the deceased to get over the sudden financial crisis.
The claim for compassionate appointment is therefore
traceable only to the scheme framed by the employer for
such employment and there is no right whatsoever
outside such scheme.
12. In State of Himachal Pradesh & Another v. Parkash
Chand, reported in (2019) 4 SCC 285, the Hon'ble
Supreme Court reiterated that compassionate
appointment is not a matter of right, but must be
governed by the terms on which the State lays down the
policy of offering employment assistance to a member of
the family of a deceased government employee.
xxx xxx xxx
14. The factual matrix in the present case is not akin to
the case in Smt. Sulochana Netam (supra).
15. In the context of clause 6(A) of the Consolidated
Revised Instructions, 2013, a question also arises as to
whether the father-in-law can be construed to be a
member of the family for the purpose of depriving the
widow from securing appointment on the ground that her
father-in-law is in government service. This aspect was,
however, not considered in Smt. Sulochana Netam
(supra).
16. It is no longer res integra that compassionate
appointment cannot be claimed as a matter of right, as it
is not a vested right. Compassionate appointment can be
claimed only on the basis of scheme applicable for such
appointment. When the scheme itself provides that no
appointment shall be granted on compassionate ground,
if any of the family members is in government service, no
appointment can be claimed on the ground that the
family member in government service is not giving any
financial assistance. No obligation is cast upon the
government under the scheme to find out as to whether
such employee is providing any financial assistance to
the other members of the family."
(emphasis supplied)
9. In WA 33 of 2022 (State of Chhattisgarh and others v. Muniya
Mukharjee, decided on 18.02.2022), a Division Bench of this Court
analyzed the provisions contained under Clauses 5 and 6(A) of the
Consolidated Revised Instructions, 2013 and recorded as follows at
paragraphs 15 and 16:
"15. A perusal of clause 5 of the Scheme would go to show
that it does not envisage that on the death of a married
government servant, the parents of the government servant
would be entitled to compassionate appointment. It is the
spouse of the deceased government employee who is
given the first preference and then the son/adopted son,
and so on and so forth in the sequence as laid down in
clause 5. As only the dependent family members of the
deceased government servant as indicated in clause 5 of
the Scheme are eligible for compassionate appointment, in
absence of definition of family in the Scheme, it will be
reasonable to hold that the relations of the deceased
government employee as mentioned in clause 5 would
constitute the family of the deceased government
employee. If any of the family members as shown in clause
5 of the Scheme is already in government service, in terms
of clause 6(A), the other members of the family as
mentioned in clause 5 would not be eligible for
compassionate appointment.
16. Explanation to clause 6A does not in any way relate to
family of the deceased married government servant. What
is the relevance of the explanation is also not discernible
inasmuch as when the scheme had excluded dependent
parents for being considered for compassionate
appointment, there is no purpose in describing who are the
dependents of the deceased married government servant."
10. Accordingly, in Muniya Mukharjee (supra), this Court held that
since another son of the deceased employee was already in government
service, such son, who is the government employee would come within
the meaning of family of the deceased employee.
11. In Kevra Bai Markandey (supra), the facts, inter alia, were that the
husband of the petitioner No. 1 and father of the petitioner No. 2,
namely, late Garjan Ram Markandey, while working as Rasoiyya (Cook)
in Tribal Development Department, Balodabazar-Bhatapara, died-in-
harness on 17.10.2018. After his death, the petitioner No.2 filed an
application for grant of compassionate appointment. The appellant No.3
rejected the aforesaid application vide order dated 11.02.2021 on the
ground that his elder brother, namely, Bhanu Markandey is already
working in a government job and posted as Constable in Balodabazar-
Bhatapara and therefore, as per the policy of compassionate
appointment, he is not eligible to be considered for compassionate
appointment. The learned Single Judge had relied on the decision in the
case of Smt. Sulochana Netam (supra) and directed the authorities to
reconsider the case of the petitioner No. 2 afresh in light of the judgment
rendered in Smt. Sulochana Netam (supra). A Division Bench of this
Court, on an appeal being preferred, in view of the earlier decisions in
the cases of Neeraj Kumar Uke (supra) and Muniya Mukharjee (supra)
allowed the appeal.
12. Mr. Pandey had cited some judgments of Single Benches,
rendered following Smt. Sulochana Netam (supra). However, this issue
now squarely covered by the decisions rendered by Division Bench in
Neeraj Kumar Uke (supra) and Kevra Bai Markandey (supra).
13. In that view of the matter, the order of the learned Single Judge
cannot be sustained. Accordingly, the writ appeal is allowed. Order
dated 16.09.2021 of the learned Single Judge is set aside. No cost.
Sd/- Sd/-
(Arup Kumar Goswami) (Gautam Chourdiya)
Chief Justice Judge
Hem
