Chattisgarh High Court
State Of Chhattisgarh vs Kevra Bai Markandey on 23 February, 2022
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WA No. 91 of 2022
1. State of Chhattisgarh Through Secretary, Department of Tribal
Development, Mahanadi Bhawan, Mantralaya, Police Station And
Post Rakhi, Atal Nagar, Nawa Raipur, District Raipur, Chhattisgarh.
2. Director Office of Director Department of Tribal Development,
Indravati Bhawan, Police Station And Post Rakhi, Atal Nagar, New
Raipur, District Raipur, Chhattisgarh.
3. Assistant Commissioner Department of Tribal Development, Office of
Collector, Baloda Bazar, District Baloda Bazar-Bhatapara,
Chhattisgarh.
---- Appellants
Versus
1. Kevra Bai Markandey W/o Late Shri Garjan Ram Markandey Aged
About 54 Years R/o Devarbood, Post Tahsil And P.S. Bilaigarh,
District Baloda Bazar Bhatapara, Chhattisgarh.
2. Devanand Markandey S/o Late Shri Garjan Ram Markandey Aged
About 27 Years R/o Dvarbood, Post Tahsil And P.S. Bilaigarh, District
Baloda Bazar Bhatapara, Chhattisgarh.
---- Respondents
(Cause-title taken from Case Information System)
__________________________________________________________
For Appellants : Mr. Gagan Tiwari, Deputy Government Advocate.
For Respondents : Mr. Abhishek Pandey, Advocate.
__________________________________________________________
Hon'ble Shri Arup Kumar Goswami, Chief Justice
Hon'ble Shri N.K. Chandravanshi, Judge
Judgment on Board
Per Arup Kumar Goswami, Chief Justice
23.02.2022
Heard Mr. Gagan Tiwari, learned Deputy Government Advocate for
the appellants. Also heard Mr. Abhishek Pandey, learned counsel,
appearing for the respondents.
2. This writ appeal is presented against an order dated 22.07.2021
passed by the learned Single Judge in WPS No. 3750 of 2021.
3. The husband of the respondent No. 1 and father of the respondent
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 respondent 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.
4. The learned Single Judge, relying on the judgment of a Single Judge
of this Court in Smt. Sulochana Netam Vs. State of Chhattisgarh & Others
in WPS No. 2728 of 2017 decided on 23.11.2017 , opined as follows :
"10. Considering the fact that elder brother 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 and his
widowed mother particularly when he has his own
family and children to take care of and he has been
living separately altogether.
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 petitioner No.2 is getting
from the brother. For the aforesaid reason, the
impugned order needs to be reconsidered and the
rejection of the candidature of the petitioner No.2 by
strict interpretation of the policy would not be
sustainable.
12. Thus, for all the aforesaid reasons, the
impugned orders (Annexure P/7 & P/8) dated
27.06.2019 & 11.02.2021 deserve to be and is
accordingly set-aside. The authorities are directed to
re-consider the claim of the Petitioner No.2 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."
5. Mr. Tiwari submits that this case is squarely covered by the judgment
in WA No.334 of 2021 decided on 10.12.2021 (Neeraj Kumar Uke Vs. State
of Chhattisgarh & Others), wherein this Court, in categorical terms, held
that no obligation is cast upon the government under the relevant scheme
to find out as to whether the family member of deceased employee, who is
in government service, is providing any financial assistance to the other
members of the family and therefore, the order of the learned Single Judge
is required to be set aside and quashed.
6. Mr. Pandey fairly concedes that this case is squarely covered by the
judgment dated 10.12.2021.
7. It will be relevant to extract paragraphs 9,10,11,12 and 16 of the
judgment in Neeraj Kumar Uke (supra). The same read 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
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."
8. The relevant scheme for compassionate appointment is contained in
Consolidated Revised Instructions on Compassionate Appointment, 2013
(for short, 'Scheme'). In WA No. 33 of 2022 decided on 18.02.2022 (State
of Chhattisgarh & Others Vs. Smt. Muniya Mukharjee) , this Court analyzed
the provisions contained under Clauses 5 and 6A of the Scheme and
recorded as follows at paragraphs 15 & 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."
9. Since another son of the deceased employee is already in
government service, such son, who is in the government employment,
would come within the meaning of a family of the deceased employee.
10. In view of the above discussion, the writ appeal is allowed. Order
dated 22.07.2021 passed by the learned Single Judge in WPS No.3750 of
2021 is set aside. No cost.
Sd/- Sd/-
(Arup Kumar Goswami) (N.K Chandravanshi)
Chief Justice Judge
Chandra
