Chattisgarh High Court
Ku. Ranjana Patel vs State Of Chhattisgarh on 6 September, 2022
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AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WPS No. 6689 of 2018
Purendra Kumar Sinha S/o Late Chandrabhushan Sinha, Aged
About 31 Years R/o Village Jhalmala (Balod), Police Station, Tahsil,
Civil And Revenue District Balod Chhattisgarh. Mo. No. 9926208705.
---- Petitioner
Versus
1. State of Chhattisgarh Through Secretary Tribal Department
Mahanadi Bhawan, Mantralaya, Raipur, P.S. Kewli, Tahsil And
District Raipur, Civil And Revenue District Raipur Chhattisgarh.
2. Collector (Tribal Development Department) Balod, Police
Station, Tahsil, Civil And Revenue District Balod Chhattisgarh.
3. Assistant Commissioner, (Tribal Development Department)
Balod, Police Station, Tahsil, Civil And Revenue District Balod
Chhattisgarh.
---- Respondents
WPS No. 2887 of 2017
Ku. Khushanjali Sahu D/o Balram Sahu, Aged About 24 Years R/o
Village B- Jamgaon Tahsil And District Balod Chhattisgarh.
---- Petitioner
Versus
1. State of Chhattisgarh Through The Secretary, Department of
Health And Family Welfare Mahanadi Bhavan, Mantralaya,
Naya Raipur, District Raipur Chhattisgarh.
2. Chief Medical Officer, Balod, District Balod Chhattisgarh.
---- Respondents
WPS No. 169 of 2022
Narendra Ugre S/o Late Shyam Lal Ugre Aged About 20 Years
Qualification ITI Trained, R/o Qtr. No. 48/25, Block Number 48,
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Commandant Campus, 6th Battalion, Chhattisgarh Armed Forces,
Raigarh District Raigarh Chhattisgarh, Permanent Address Sant Ravi
Das Nagar, Ward No. 10, Sharda Chowk, Janjgir District Janjgir
Champa Chhattisgarh.
---- Petitioner
Versus
1. State of Chhattisgarh Through Secretary, Department of Home
Mahanadi Bhawan, Atal Nagar, Nawa Raipur, Raipur, District
Raipur Chhattisgarh.
2. Special Director General of Police Chhattisgarh Armed Force,
Police Head Quarter, Raipur, District Raipur Chhattisgarh.
3. Deputy Inspector General of Police Chhattisgarh Armed Force,
North Region Surguja District Surguja Chhattisgarh.
4. Commandant 6th Battalion, Chhattisgarh Armed Force Raigarh
District Raigarh Chhattisgarh.
---- Respondents
WPS No. 197 of 2022
Rishabh Kumar Arya S/o Late Shishupal Arya, Aged About 21 Years
R/o Block Colony, Dantewada, District South Bastar, Dantewada
Chhattisgarh.
---- Petitioner
Versus
1. State of Chhattisgarh Through The Secretary, Department of
Revenue And Disaster Management, Mantralaya, Mahanadi
Bhawan, Atal Nagar, Nawa Raipur Chhattisgarh.
2. Commissioner, Bastar Division, Jagdalpur, District Bastar
Chhattisgarh.
3. Collector, South Bastar, Dantewada Chhattisgarh.
---- Respondents
WPS No. 223 of 2022
Manish Kurre S/o Late Dhansay Kurre Aged About 30 Years R/o
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Ward No. 04, Mission Compound Takhatpur, District- Bilaspur (C.G.)
---- Petitioner
Versus
1. State of Chhattisgarh Through- The Secretary, Education
Department, Mantralaya, Mahanadi Bhawan, Atal Nagar, Naya
Raipur, District- Raipur (C.G.)
2. District Education Officer Bilaspur, District- Bilaspur (C.G.)
---- Respondents
WPS No. 270 of 2022
Khushboo Ahirpankh D/o Late Jagsai Ram, Aged About 22 Years
R/o - Kanjiyakusmi, Post - Kusmi, District - Balrampur Chhattisgarh.
---- Petitioner
Versus
1. State of Chhattisgarh, Through Its Secretary, Department of
Education Mantralaya, Mahanadi, Bhawan, Naya Raipur,
District Raipur Chhattisgarh.
2. Principal Government Mahali Bhagat Snatak College Post -
Kusmi, District - Balrampur, Ramanujganj, Chhattisgarh.
---- Respondents
WPS No. 561 of 2022
Rachana Darwade D/o Shri Suresh Darwade, Aged About 36 Years
Caste Mahar, R/o Cinema Line, Ward No. 07, Dongargarh, Tahsil
Dongargarh, District Rajnandgaon (Chhattisgarh).
---- Petitioner
Versus
1. State of Chhattisgarh Through The Secretary, Higher
Education Department, Mantralaya, Mahanadi Bhawan, Atal
Nagar, Naya Raipur, District Raipur Chhattisgarh.
2. Commissioner, Directorate of Higher Education Block 2nd And
3rd Floor, Indravati Bhawan, Raipur, Atal Nagar, Naya Raipur,
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District Raipur Chhattisgarh.
3. District Education Officer, Rajnandgaon, District Rajnandgaon
Chhattisgarh.
4. Block Education Officer, Dongargarh, District Rajnandgaon
Chhattisgarh.
5. Principal Govt. Girls Higher Secondary School Dongargarh,
District Rajnandgaon Chhattisgarh.
---- Respondents
WPS No. 592 of 2022
Sanjeev Verma S/o Brijendra Narayan Verma Aged About 26 Years
R/o Tripathi Gali, Brahampara, Ambikapur, District- Surguja,
Chhattisgarh.
---- Petitioner
Versus
1. State of Chhattisgarh Through Secretary, School Education
Department, Mahanadi Bhawan, Atal Nagar, Naya Raipur,
District- Raipur, Chhattisgarh.
2. Commissioner Higher Education Department, Block-C 03,
Second And Third Floor, Indravati Bhawan, Naya Raipur,
District- Raipur, Chhattisgarh.
3. Deputy Director Higher Education Department, Mahanadi
Bhawan, Atal Nagar, Naya Rapur, District- Raipur,
Chhattisgarh.
4. District Education Officer Ambikapur, District- Surguja,
Chhattisgarh.
---- Respondents
WPS No. 596 of 2022
Jitendra Singh Kumre S/o Late Shri Ghaneshwar Singh Kumre, Aged
About 28 Years R/o Mahurband Para Kanker District Kanker
Chhattisgarh.
---- Petitioner
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Versus
1. State of Chhattisgarh Through Its Secretary, Department of
Employment And Training, Ministry At Mahanadi Bhawan, New
Raipur, P.S. Rakhi, District Raipur Chhattisgarh.
2. Director, Department of Employment And Training, Ministry At
Indravati Bhawan, 1st Floor D Block New Raipur, P.S. Rakhi,
District Raipur Chhattisgarh.
3. Principal, Industrial Training Institute Antagarh, District Kanker
Chhattisgarh.
---- Respondents
WPS No. 652 of 2022
Tarni Deshmukh D/o Late Khilavan Singh Deshmukh Aged About 34
Years W/o Vedprakash Gautam, R/o Ward No. 19, Budhapara Talab
Road Balod, District- Balod (C.G.)
---- Petitioner
Versus
1. State of Chhattisgarh Through- Secretary, Department of
School Education, Indravati Bhavan, Atal Nagar, Naya Raipur,
District- Raipur (C.G.)
2. The Commissioner Directorate of Public Instructions,
Department of School Education, Indravati Bhavan, Atal Nagar,
Naya Raipur, District- Raipur (C.G.)
3. The Collector Balod (C.G.)
4. Joint Director Education Division Durg, District- Durg (C.G.)
5. District Education Officer Balod, District- Balod (C.G.)
6. Block Education Officer Block Doundi Lohara, District- Balod
(C.G.)
---- Respondents
WPS No. 823 of 2022
Ku. Ranjana Patel D/o Late Shri Gendram Patel, Aged About 26
6
Years R/o Village And Post Mandir Hasaud, Tahsil Arang, Civil And
Revenue, District Raipur Chhattisgarh.
---- Petitioner
Versus
1. State of Chhattisgarh Through Secretary Home, Mantralaya,
Mahanadi Bhawan, Atal Nagar, Nawa Raipur, Civil And
Revenue District Raipur Chhattisgarh.
2. Director General of Police, Police Head Quarter, Near
Mantralaya, Sector 19, Naya Raipur Chhattisgarh.
3. Senior Superintendent of Police, Raipur, Civil Lines, Raipur
Chhattisgarh.
---- Respondents
WPS No. 920 of 2022
Shishir Singh Thakur S/o Narendra Singh Thakur Aged About 31
Years R/o Nearby Holly Cross School, Pension Bada Raipur, District
Raipur Chhattisgarh.
---- Petitioner
Versus
1. State of Chhattisgarh Through The Secretary, Panchayat And
Rural Development Department, Mahanadi Bhawan,
Mantralaya, Atal Nagar, Naya Raipur, District Raipur,
Chhattisgarh.
2. Block Education Officer, Dharsiwa, District Raipur
Chhattisgarh.
3. Joint Director, Public Instructions, 1st Floor, C - Block Indrawati
Bhawan, Atal Nagar, Naya Raipur, District Raipur
Chhattisgarh.
4. District Education Officer,Raipur, District Raipur Chhattisgarh.
---- Respondents
WPS No. 931 of 2022
Jitendra Kumar Jaiswal S/o Late Ashok Jaiswal Aged About 29
7
Years R/o Takiya Road, Ambikapur, Ward No. 21, District Surguja
Chhattisgarh.
---- Petitioner
Versus
1. The State of C.G. Through The Principal Secretary, Home
Department, Mahanadi Bhawan, New Raipur, District Raipur
Chhattisgarh.
2. The Assistant Inspector General of Police (Welfare) Police
Headquarter Nava Raipur, Atal Nagar, District Raipur
Chhattisgarh.
3. The Inspector General of Police Surguja Range, District
Surguja Chhattisgarh.
4. The Superintendent of Police Surguja, District Surguja
Chhattisgarh.
---- Respondents
WPS No. 1136 of 2022
Ku. Lokeshwari Dhruw D/o Late Shri Radhelal Dhruw Aged About 28
Years R/o Police Colony Fafadih, Raipur, District Raipur (C.G.)
---- Petitioner
Versus
1. State of Chhattisgarh Through The Secretary, Department Of
Home, Mantralaya, Mahanadi Bhawan, Nawa Raipur, Atal
Nagar, Raipur District Raipur Chhattisgarh
2. The Director General of Police, Police Head Quarter, Raipur,
Raipur, District Raipur (C.G.)
3. Inspector General Of Police I.G. Office, Raipur, District Raipur
(C.G.)
4. Deputy Inspector General of Police D.I.G. Office Raipur District
Raipur (C.G.)
5. Superintendent of Police S.P. Office, Raipur, District Raipur
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Chhattisgarh
---- Respondents
WPS No. 1196 of 2022
Abhay Kumar Ekka S/o Late Mahaveer Ekka Aged About 30 Years
R/o Village Samaniya, Post Office Kamleswarpur, Tehsil
Narmadapur, District Sarguja Chhattisgarh.
---- Petitioner
Versus
1. State of Chhattisgarh Through Secretary, General
Administration Department, Mantralaya, Mahanadi Bhavan,
Nava Raipur, Atal Nagar, District Raipur Chhattisgarh.
2. District Education Officer District Sarguja Chhattisgarh.
3. Block Education Officer Udaypur, District Sarguja Chhattisgarh.
---- Respondents
WPS No. 1418 of 2022
Sudha Rani Yadav D/o Late Kaishru Ram Yadav Aged About 39
Years Caste Rout, R/o Village Girhola, Tahsil Charama, District
Kanker, Chhattisgarh.
---- Petitioner
Versus
1. State of Chhattisgarh Through The Secretary, Department of
School Education, Mahanadi Mantralaya, Naya Raipur, Post
Office And Police Station Naya Raipur, Atal Nagar, District
Raipur, Chhattisgarh.
2. Commissioner, Directorate Of School Education, Block 2nd
And 3rd Floor, Indrawati Bhawan, Naya Raipur, Post Office
And Police Station Naya Raipur, Atal Nagar, District Raipur,
Chhattisgarh.
3. District Education Officer, Balod, District Balod, Chhattisgarh.
4. Joint Director, Education Division, Durg, District Durg,
Chhattisgarh.
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5. Principal, Govt. Higher Secondary School, Suregaon, Block
Dondilohara, District Balod, Chhattisgarh.
---- Respondents
WA No. 110 of 2020
Ku. Deepa Shrivastav D/o Late Mahesh Shrivastav Aged About 26
Years Resident Of Basantpur, Ward No. 43, Rajnandgaon , District
Rajnandgaon Chhattisgarh.
---- Appellant
Versus
1. State of Chhattisgarh Through The Secretary, Department of
Home, Mantralaya, Mahanadi Bhawan, Naya Raipur , District
Raipur Chhattisgarh.
2. The Director General of Police Police Headquarter , Ground
Floor, Block No. 1, Naya Raipur , District Raipur Chhattisgarh.
3. The Superintendent of Police, Rajnandgaon , District
Rajnandgaon Chhattisgarh.
---- Respondent
(Cause Title taken from Case Information System)
For Petitioners/ : Mr. Ratnesh Kumar Agrawal, Mr. Shaleen
Appellant Singh Baghel, Mr. Ishan Verma and Mr.
Vedant Shadangi, Mr. Hemant Kesharwani
and Mr. Suresh Tandon, Mr. Siddharth
Pandey and Mr. Dashrath Prajapati, Mr. H.B.
Agrawal, senior counsel assisted by Mr.
Pankaj Agrawal and Mr. Shashi Kumar
Kushwaha, Mr. Devesh G. Kela, Mr. Rakesh
Kumar Jha, Mr. Rajkumar Pali, Mr. Anurag
Singh, Mr. Vinod Kumar Sharma, Ms. Diksha
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Gouraha, Mr. Dharmesh Shrivastava, Mr. N.
Naha Roy, Mr. Vinay Pandey, Mr. A.K.
Prasad and Ms. Suchita Bais, and Mr. Bharat
Rajput.
For Respondents : Mr. Jitendra Pali and Mr. H.S. Ahluwalia,
Deputy Advocate General and Mr. Gagan
Tiwari, Deputy Government Advocate.
Date of hearing : 04.08.2022
Date of Judgment : 06.09.2022
Hon'ble Mr. Arup Kumar Goswami, Chief Justice
Hon'ble Mr. Parth Prateem Sahu, Judge
C A V Judgment
Per Arup Kumar Goswami, Chief Justice
Learned counsel for the parties submit that as the issue relates
to compassionate appointment, the matters may be heard and
disposed of by this Bench.
2. In Writ Petition (S) No. 6689 of 2018, a learned Single Judge of
this Court, vide order dated 12.01.2022, had observed that the
judgment of a learned Single Judge of this Court in Smt. Sulochana
Netam v. State of Chhattisgarh & Others (WPS No. 2278/2017,
decided on 23.11.2017) requires reconsideration by a larger Bench
in accordance with Rule 33 of the High Court of Chhattisgarh Rules,
2007 on the question formulated, which is as follows:
"Whether this Court in exercise of writ jurisdiction under
Article 226 of the Constitution of India is empowered to
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direct the State Government to hold an enquiry qua the
dependency / financial support by one of the family
members of the deceased Government servant, who is
already in Government service, to the dependent of the
deceased Government servant claiming compassionate
appointment whereas, the policy dated 29.8.2016 does
not stipulate any such enquiry and then consider the
application for compassionate appointment, as bar being
absolute?"
3. Facts
, in a nutshell, WPS No. 6689/2018 are as follows:
Chandrabhushan Sinha, father of the petitioner in WPS No.
6689/2018, while working as Assistant Grade-II in the office of
Assistant Commissioner, Tribal Development Department, died-in-
harness on 03.12.2017. He left behind his wife, the petitioner and
another son, namely, Dinesh Kumar Sinha. The petitioner filed an
application dated 02.01.2018 claiming compassionate appointment.
The application was rejected by an order dated 14.09.2018 taking
recourse to Clause 6A of the Circular No. F7-2012/1-3, Naya Raipur,
dated 29.08.2016 of the General Administration Department, which
stipulated that if any member of the family of the deceased
government servant is already in government service, then any other
member of the family will not be eligible for compassionate
appointment. The petitioner's brother - Dinesh Kumar Sinha is
working under Indian Army on contractual basis. It is submitted in the
writ petition that Dinesh Kumar Sinha was living separately from the
petitioner's family.
4. At the outset, it is relevant to state that the appointment on
compassionate ground is based on Consolidated Revised
Instructions on Compassionate Appointment - 2013, for short, the
Policy.
5. Circular dated 29.08.2016, which is referred to in the order
dated 14.09.2018, is an amendment effected to Clause 6A. After the
order dated 12.01.2022 was passed by the learned Single Judge,
writ petitions, namely, WPS Nos. 2887/2017, 169/2022, 197/2022,
223/2022, 270/2022, 561/2022, 592/2022, 596/2022, 652/2022,
823/2022, 920/2022, 931/2022, 1136/2022, 1196/2022, 1418/2022
were directed to be placed along with WPS No. 6689 of 2018 and
accordingly, they are listed together for consideration of this Court
along with WA No. 110/2020. Accordingly, the writ petitions/writ
appeal have been heard together and are being disposed of by this
judgment.
6. Having regard to the issues arising in these petitions, at the
outset, it will be relevant to take note of Clauses 5 and 6A of the
Policy which, translated into English, as furnished, read as under:
"5. Eligible candidates for compassionate
appointment: - One of the dependent family members
of the deceased Government servant in the order
shown below, i.e. (a) on rejection or not being eligible
(b) and afterwards in the same sequence (c), (d) and
(e) will be considered for compassionate
appointment ,respectively:
(a) Spouse of deceased government employee,
(b) Son/adopted son,
(c) Unmarried daughter/unmarried adopted daughter,
(d) Dependent widowed daughter/dependent adopted
widowed daughter,
(e) Dependent divorced daughter/dependent divorced
adopted daughter and,
(f) Daughter-in-law.
6A. In the family of the deceased married government
servant, if any other member of the family is already in
government service, then the other member of the
family will not be eligible for compassionate
appointment.
Explanation. Dependents of the family of deceased
married and unmarried government servant shall
include the following members:
A) In case of married government servant -
Dependent mother, dependent parents,
widow/widower, son and daughter (including adopted
son/daughter, widow/ divorced daughter) and daughter
in law.
B) In case of unmarried government servant (or
widower having no son/daughter) - dependent father,
mother, brother and sister."
7. In Smt. Sulochana Netam (supra), a learned Single Judge of
this Court had directed for making an enquiry as to whether financial
help is being provided to the petitioner therein and her family by the
member of the family of the deceased employee, who is already in
government service, to ascertain as to whether the petitioner is
entitled to compassionate appointment or not. In Smt. Sulochana
Netam (supra), at paragraphs 9 and 10, it is stated as follows:
"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.
10. In the present case, I am inclined to issue
direction to the respondents to hold enquiry in the
matter to verify the petitioner's claim that her father-
in-law is living separately and not providing financial
help and therefore, the petitioner is in need of
compassionate appointment. The impugned order is
set aside and the matter is remitted to the
Superintendent of Police, Special Task Force, Durg.
The petitioner may submit all necessary
documentary evidence in support of her claim that
her father-in-law is not providing financial help and
living separately. In the enquiry, if it is found that the
petitioner is not getting financial help and father-in-
law is living separately, the petitioner's case for
grant of compassionate appointment should be
considered favourably. The enquiry should be made
within a period of three months from the date of
receipt of a copy of this order by the Superintendent
of Police, Special Task Force, Durg."
8. The learned Single Judge, while framing the question vide
order dated 12.01.2022 as noted earlier, at paragraph 19, observed
as follows:
"19. In the present case, since the policy dated
14-6-2013 as amended on 29-8-2016 is absolute in
its term and clearly prohibits consideration of
dependants of the deceased Government servant if
one of the members of the family of the deceased
Government servant is already in Government
service and since no exception has been carved out
while formulating the policy by the State
Government; as such, I am of the considered
opinion that the policy framed by the State
Government for grant of compassionate
appointment to a dependent of a deceased
Government servant having died in harness has to
be construed strictly and this Court in exercise of
jurisdiction under Article 226 of the Constitution of
India is jurisdictionally not empowered to alter the
policy so formulated as held by their Lordships of
the Supreme Court in Parkash Chand's case -
(2019) 4 SCC 285 and cannot go beyond the policy
so formulated. Consequently, direction by this Court
to hold enquiry as to whether one of the family
members, who is already in Government service, is
financially supporting to the other members of the
family claiming appointment and then to consider
the application for compassionate appointment
would amount to amend / alter the policy framed by
the State Government. Accordingly, the judgment of
this Court in Sulochana Netam - (WPS No. 2728
of 2017, decided on 23.11.2017) requires
reconsideration by larger Bench."
9. Before proceeding further, it will be appropriate to take note of
the salient facts in respect of each of the other writ petitions/writ
appeal:
W.A. No. 110/2020 :
This appeal is preferred against an order dated 07.02.2018
passed by the learned Single Judge in WPS No.1206/2018. Father of
the petitioner, namely, Mahesh Shrivastava, while working as
Constable in Special Branch, died-in-harness on 17.01.2016. The
mother of the petitioner had expired on 09.05.2019. It is pleaded that
brother of the petitioner, namely, Prabhat Shrivastava is working as
Cashier in State Bank of India and is living separately with his wife
and children and not providing any financial assistance to the
petitioner. The prayer for compassionate appointment made by the
petitioner was rejected in terms of Clause 6A of the Policy holding
that her brother is working as Cashier in State Bank of India.
Learned Single Judge, by the order impugned, rejected the
application holding that the words " Government Servant" appearing
in Clause 6A of the Policy would not make any difference in view of
the object sought to be achieved by the Policy as engrafted in Clause
6A of the Policy even though the brother of the petitioner is working
in State Bank of India.
WPS No. 2887/2017:
The petitioner is daughter of Late Smt. Nirmala Sahu, who was
working as an Auxillary Nursing Midwifery at Sub-Health Center, B-
Jamgaon, Tahsil and District Balod and she died-in-harness on
05.06.2016 leaving behind her husband, the petitioner and a son,
namely, Manish Kumar Sahu. The petitioner submitted an application
on 29.07.2016 for compassionate appointment and the same was
rejected by an order dated 28.11.2016 on the ground that the
petitioner's father, who is alive, is a government employee. It is
submitted that the mother of the petitioner having died on
05.06.2016, the Policy dated 14.06.2013 would be applicable and the
amendment effected on 29.08.2016 whereby Clause 6A was inserted
would not be applicable.
WPS No. 169/2022:
Father of the petitioner, namely, Shyam Lal Ugre, while
working as Constable and posted in Chhattisgarh Armed Forces, 6 th
Battalion, died-in-harness on 27.07.2020 leaving behind his widow
and four sons, namely, Ravi Prakash Ugre, Virendra Kumar Ugre,
Vinay Kumar Ugre and the petitioner, Narendra Ugre. Ravi Prakash
Ugre, eldest son of the deceased employee is a Teacher in
Government Higher Secondary School, Balpur, District Balodabazar
and it is stated that he has separated from his family and living
separately. It is also pleaded that rest of the family was dependent
on Shyam Lal Ugre, the deceased government employee. The
mother of the petitioner had filed an application for grant of
compassionate appointment to the petitioner on 08.09.2020 (wrongly
stated in the writ petition that the petitioner had filed the application).
The claim of the petitioner was rejected by an order dated
03.11.2020 on the ground that his brother Ravi Prakash Ugre is in
government service. Contending that Ravi Prakash Ugre was living
separately with his family, the order dated 03.11.2020 was assailed
by filing WPS No.1371/2021 and the said writ petition was disposed
of on 25.03.2021 remitting the matter back to the authorities to
reconsider the claim of the petitioner in light of the decision in Smt.
Sulochana Netam (supra). It is alleged that without considering the
report with regard to dependency submitted by a Committee, order
dated 14.09.2021 was passed rejecting the claim of the petitioner for
compassionate appointment.
WPS No.197/2022 :
Father of the petitioner, namely, Shishupal Arya, while working
as Assistant Grade-II, died-in-harness on 27.06.2017 leaving behind
his wife, two sons and a daughter. The mother of the petitioner filed
an application for grant of compassionate appointment to the
petitioner on 22.09.2017 stating that her daughter is already married
and the elder son is residing separately without providing any
financial assistance to her. An enquiry was conducted, which
demonstrated that the petitioner was residing with his mother and the
elder son was living separately. However, by an order dated
15.01.2019, the application for compassionate appointment was
rejected on account of the fact that his brother is in government
service. It appears that brother of the petitioner, namely, Shashikant
Arya, is in government service as a Peon.
WPS No. 223/2022 :
Father of the petitioner, namely, Dhansay Kurre, while working
as an Assistant Teacher Grade-III at Government High School died-
in-harness on 26.11.2019 leaving behind his wife, elder son Satish
Kurre and the petitioner. It is stated that elder brother Satish Kurre is
living separately from December, 2013 after marriage. The petitioner
filed an application for grant of compassionate appointment on
03.01.2020 and he was subsequently granted compassionate
appointment by an order dated 02.06.2021. Subsequently, a notice
was issued on 27.11.2021 asking the petitioner to show cause within
3 days stating that he had suppressed the fact that his brother is in
government service, and as such his appointment is contrary to
Clause 6A of the Policy. The petitioner submitted show cause reply
stating that as his elder brother solemnized marriage against the will
of the family, he is not treated as a family member. Not being
satisfied with the reply, an order dated 09.12.2021 was passed
cancelling the order of appointment of the petitioner.
WPS No. 270/2022 :
Father of the petitioner, namely, Jagsai Ram, while working as
Book-lifter in Government Mahli Bhagat Snatak College, Kusmi, died-
in-harness on 27.03.2018 leaving behind his wife, two daughters
including the petitioner and a son, Lalit Kumar Ahirpankh. It is stated
that Lalit Kumar Ahirpankh is married and is living separately from
his family for more than eight years. The petitioner submitted an
application for compassionate appointment on 03.07.2018 for the
post of Assistant Grade-III. However, by an order dated 23.06.2021,
the application of the petitioner was rejected on account of the fact
that her brother Lalit Kumar Ahirpankh is working (at one place
stated as Peon and in another place as Clerk) in the Department of
Animal Husbandry.
WPS No. 561/2022 :
Mother of the petitioner, namely, Sevanta Darwade, while
working as Lecturer (LB), died-in-harness on 20.03.2021 leaving
behind the petitioner, her husband, son Ashwani Darwade, daughter-
in-law Smt. Varsha Darwade and two married daughters, namely,
Tripti Temborkar and Bhawana Sakre. It is stated that the petitioner
is a divorcee. The petitioner had submitted an application for
compassionate appointment and the same was rejected on the
ground that the wife of her brother, namely, Varsha Darwade is in
government service. The aforesaid order was challenged by filing
writ petition being WPS No.4453/2021 and this Court by an order
dated 25.08.2021 disposed of the writ petition in the light of the
observations made in Smt. Sulochana Netam (supra). The claim of
the petitioner for compassionate appointment again came to be
rejected by an order dated 06.12.2021 reiterating that Smt. Varsha
Darwade is in government service. By this petition, apart from
praying for quashing of the order dated 06.12.2021, the petitioner
challenges Clause 6A of the Policy as void and inoperative being
arbitrary and discriminatory with a further prayer to direct the
respondent authorities to reconsider the case of the petitioner for
compassionate appointment.
WPS No. 592/2022 :
Brother of the petitioner, namely, Shri Shambhu Ratan Verma,
while working as Lecturer (LB) at Government Higher Secondary
School, Sakhauli, died-in-harness on 13.12.2020. At the time of his
death, he left behind his wife, who is a government employee
working in Primary Health Centre, Nawanagar along with minor
children (details not given), his parents and the petitioner. On the
consent given by the wife of the deceased, the petitioner submitted
an application for compassionate appointment on 01.02.2021.
However, by an order dated 17.08.2021 rejected the claim of the
petitioner in terms of Clause 6A of the Policy.
WPS No. 596/2022 :
Father of the petitioner, namely, Ghaneshwar Singh Kumre,
while working as Assistant Grade-II at Industrial Training Institute,
died-in-harness on 19.08.2021. At the time of his death, he left
behind his wife and two sons. The elder brother of the petitioner is a
government employee and it is stated that he had severed ties with
his family from 2017. The petitioner submitted an application for
grant of compassionate appointment, which was rejected by an order
dated 01.10.2021 in view of Clause 6A of the Policy. The aforesaid
order is not put to challenge in this writ petition. However, a prayer is
made to direct the respondents for reconsideration of the
representation dated 20.10.2021. It appears from paragraph 8.7 of
the petition that the said representation, too, was rejected.
WPS No.652/2022 :
Father of the petitioner, namely, Khilawan Singh Deshmukh,
while serving as Assistant Grade-II, died-in-harness on 24.04.2021.
From a perusal of the service record, it appears that he left behind
three daughters. The application filed by the petitioner for
compassionate appointment was rejected by an order dated
29.12.2021 in view of Clause 6A of the Policy. The petitioner is a
married daughter of Late Khilawan Singh Deshmukh and it appears
that the sister of the petitioner is in government employment.
WPS No. 823/2022 :
Father of the petitioner, namely, Gendram Patel, while working
as Head Constable in Police Station Gobra Nawapara, died-in-
harness after suffering from COVID-19. It appears that the petitioner
has two married brothers, who are employed. The petitioner
submitted an application for compassionate appointment on
15.07.2021 before respondent No.3 and on 22.07.2021 before
respondent No.2. However, as there is no decision on the said
applications, the petitioner filed a writ petition before this Court,
which was registered as WPS No.5947/2021 and this Court, by an
order dated 27.10.2021, disposed of the writ petition directing the
respondent No.2 i.e. Director General of Police to take appropriate
decision on the applications within a period of two months from the
date of communication/ receipt of the certified copy of the said order.
The applications of the petitioner were rejected pursuant to order
dated 24.11.2021 issued by respondent No.3 and order dated
09.12.2021 issued by respondent No.2 stating that the brothers of
the petitioner are in government employment and therefore, the
petitioner is not entitled to compassionate appointment.
WPS No.920/2022 :
Mother of the petitioner, namely, Smt. Deoki Singh Thakur,
while working as Upper Division Teacher, died on 02.05.2021 due to
COVID-19. It is pleaded that she was assigned the work of contact
tracing and other incidental works by the Joint Collector, Raipur. The
father of the petitioner is a government employee in the Department
of Forest. The petitioner had moved an application for grant of
compassionate appointment on 04.06.2021. The petitioner had relied
upon the Circular dated 03.05.2021. A translated version of the
relevant extract reads as under :
"OFFICE OF DEVELOPMENT COMMISSIONER
VIKAS BHAWAN,FOURTH FLOOR,SECTOR 19, NORTH BLOCK
CHHATTISGARH NAVA RAIPUR ATAL NAGAR
Phone no : 0771 2960220, Pin code 492002, Email Id : [email protected]
No. 1483/V-2/est./2021 Nava Raipur Atal Nagar Dated 03/05/2021
To,
All the Chief Executive Officer,
District Panchayat, (Chhattisgarh)
Sub. : Regarding compassionate appointment/ compassionate
grant of dependents of Government servants who died
of Corona (COVID-19)
----0----
The Revised instructions issued by General Administration
Department 2013, on dated 14.08.2013 regarding compassionate
appointment on the death of a Government Servants during the
service period.
In para No 3, there is a provision for compassionate
appointment to the dependents of such deceased Government
Servants. Apart from this, there is a provision in Para-17 that on the
death of an employee appointed on contract from daily wage
earners/direct recruitment, the dependent family members of said
deceased will not be eligible for compassionate appointment.
Provided that if the deceased who is a daily wage earner/ the
contract appointee from direct recruitment has served his services
continuously for 02 years then a lump sum amount of One Lac
Rupees will be given to the nominated member of his dependent
family as a compassionate grant.
Thus, according to the above instructions as per the eligibility
of the deceased Government servant, who died from Corona, it
should be ensured that the compassionate appointment/
compassionate grant and payment of all dues as per the eligibility
should be done without delay.
Kindly inform about the information of the deceased employee
who died from covid and the action taken in relation to all the paid
dues as per the eligibility so that the Government can be informed
immediately.
(Ordered by Development Commissioner)
Sd/-
Illegible
V.P. Tirki
Additional Development Commissioner
Development Commissioner Office,
C.G.
Nava Raipir, Atal Nagar
Endt. No. 1484/V2/Est/2021 Nava Raipur, Atal Nagar Dated 03/05/2021"
The prayer for compassionate appointment was rejected by an order
dated 31.05.2021 as the father of the petitioner is in government
service. After the death of his mother, the petitioner was paid ex
gratia amount of Rs.50,000/-.
WPS No. 931/2022 :
Father of the petitioner, namely, Ashok Jaiswal, while working
as Head Constable, died-in-harness on 25.02.2020 leaving behind
his widow and three sons. The elder brother of the petitioner,
namely, Vinay Kumar Jaiswal was appointed to the post of Shiksha
Karmi Grade-III on 03.09.2007 and is presently working on the post
of Assistant Teacher (LB). Thus, being an employee of the
Panchayat Department, he is not a government servant as held by
this Court in WPS No.6828/2021 vide order dated 28.01.2022. It is
stated that he is living separately with his wife and children and is not
providing any financial assistance to the petitioner, his mother and
brother. The application filed by the petitioner for compassionate
appointment was rejected by an order dated 11.08.2020 on the
ground that a family member is already in government service. The
petitioner filed a writ petition being WPS No.2897/2021 challenging
the rejection orders dated 11.08.2020, 29.12.2020 and 21.05.2021
on the ground that no enquiry with regard to dependency of the
petitioner on the deceased employee was conducted prior to
rejection of the application of the petitioner. Relying upon the
Judgment in the case of Smt. Sulochana Netam (supra), this Court
disposed of WPS No.2897/2021 vide order dated 24.06.2021 and
quashed the orders dated 11.08.2020, 29.12.2020 and 21.05.2021
and directed the authorities to reconsider the case of the petitioner
within a period of 90 days from the date of receipt of a copy of the
said order. It is stated that though a report was obtained regarding
dependency, without considering the same, the order dated
28.10.2021 was passed rejecting the application for compassionate
appointment.
WPS No. 1136/2022 :
Father of the petitioner, Radhelal Dhruw, while working as
Head Constable, died-in-harness on 07.02.2020. The petitioner had
moved an application for compassionate appointment on 08.05.2020.
By an order dated 12.06.2020, the petitioner was informed that she
was not entitled to compassionate appointment on the ground that
three of the family members of the deceased are in government
employment.
WPS No. 1196/2022 :
Father of the petitioner, namely, Mahaveer Ekka, while working
as Head Master in Middle School, Bishunpur, died-in-harness on
20.09.2015 leaving behind his wife, the petitioner and his wife along
with his two brothers. The petitioner filed an application for
compassionate appointment on 18.11.2015. It is pleaded that one of
the brothers of the petitioner, namely, Saurabh Kumar Ekka, is in
government service, being employed as Assistant Teacher (LB) at
High School, Jamgala, Block Lakhanpur, but he is living separately
and does not support the other family members of the deceased
employee. The application of the petitioner was rejected by an order
dated 11.11.2016 on the ground that his brother is in government
service.
WPS No. 1418/2022 :
Father of the petitioner, namely, Kaishru Ram Yadav, while
working as Peon at Government Higher Secondary School,
Suregaon died-in-harness on 01.10.2021. The petitioner filed an
application for compassionate appointment on 07.12.2021, which
came to be rejected by an order dated 01.02.2022 in terms of Clause
6A of the Policy on the ground that the petitioner's sister Smt. Kavita
Yadav is in government employment.
10. Heard Mr. Ratnesh Kumar Agrawal, learned counsel for the
petitioner in WPS No. 6689 of 2018, Mr. Shaleen Singh Baghel,
learned counsel for the petitioner in WPS No. 1418 of 2022, Mr.
Ishan Verma and Mr. Vedant Shadangi, learned counsel for the
petitioner in WPS No. 1196 of 2022, Mr. Hemant Kesharwani and Mr.
Suresh Tandon, learned counsel for the petitioner in WPS No. 2887
of 2017, Mr. Siddharth Pandey and Mr. Dashrath Prajapati, learned
counsel for the petitioner in WPS No. 931 of 2022, Mr. H.B. Agrawal,
learned senior counsel for the petitioner in WPS No. 920 of 2022
assisted by Mr. Pankaj Agrawal and Mr. Shashi Kumar Kushwaha,
Mr. Devesh G. Kela, learned counsel for the petitioner in WPS No.
823 of 2022, Mr. Rakesh Kumar Jha, learned counsel for the
petitioner in WPS No. 596 of 2022, Mr. Rajkumar Pali, learned
counsel for the petitioner in WPS No. 652 of 2022, Mr. Anurag Singh,
learned counsel for the petitioner in WPS No. 592 of 2022, Mr. Vinod
Kumar Sharma, learned counsel for the petitioner in WPS No. 561 of
2022, Ms. Diksha Gouraha, learned counsel for the petitioner in WPS
No. 270of 2022, Mr. Vinod Kumar Sharma, learned counsel for the
petitioner in WPS No. 223 of 2022, Mr. Dharmesh Shrivastava,
learned counsel for the petitioner in WPS 1136/202, Mr. N. Naha
Roy, learned counsel for the petitioner in WPS No. 197 of 2022, Mr.
Vinay Pandey, learned counsel for the petitioner in WPS No. 242 of
2022, Mr. A.K. Prasad and Ms. Suchita Bais, learned counsel for the
petitioner in WPS No. 169 of 2022 and Mr. Bharat Rajput, learned
counsel for the appellant in WA No. 110 of 2020. Also heard Mr.
Jitendra Pali and Mr. H.S. Ahluwalia, learned Deputy Advocate
Generals as well as Mr. Gagan Tiwari, learned Deputy Government
Advocate, appearing for the respondents.
11. Mr. Vinod Kumar Sharma, the learned counsel for the petitioner
in WPS No. 561/2022 submits that Clause 6A of the Policy is
arbitrary and discriminatory as no other member of the family of the
deceased is held to be ineligible for compassionate appointment if
any member of the family of the deceased is already in government
service, without making any enquiry to find out whether such
member of the family of the deceased, who is in government service,
is rendering any financial assistance to other family members of the
deceased and as such Clause 6A is liable to be struck down. In that
context, it is submitted that in Smt. Sulochana Netam (supra), though
the Policy does not categorically contemplate holding of enquiry to
find out whether the member of the family in government service is
providing financial support, the learned Single Judge rightly directed
that the State should make enquiry to verify whether the applicant is
getting any financial help from the other member of the family who is
in government service and also to consider amendment in the Policy
to deal with such contingency where it was found that on the date of
death of the government servant, the member in government service
was living separately and not providing any financial help. However,
till date no such amendment, as suggested by this Court in Smt.
Sulochana Netam (supra), has been effected.
12. Mr. Ratnesh Kumar Agrawal, the learned counsel for the
petitioner in WPS 6689/2018, Mr. A.K. Prasad and Ms. Suchita Bais,
learned counsel in WPS 169/2022, Mr. Vinod Kumar Sharma,
learned counsel in WPS 223/2022, Mr.Siddharth Pandey and Mr.
Dashrath Prajapati, learned counsel in WPS 931/2022, Mr.
Dharmesh Shrivastava, learned counsel in WPS 1136/2022, Mr.
Ishan Verma and Mr. Vedant Shadangi, learned counsel in WPS
1196/2022, Mr. S.S. Baghel, learned counsel in WPS 1418/2022,
Ms. Diksha Gouraha, learned counsel in WPS 270/2022, Mr. Anurag
Singh, learned counsel in WPS 592/2022, Mr. Rakesh Kumar Jha,
learned counsel in WPS 596/2022, Mr. Raj Kumar Pali, learned
counsel in WPS 652/2022, Mr. Devesh G. Kela, learned counsel in
WPS 823/2022 and Mr. H.B. Agrawal, learned senior counsel
assisted by Mr. Pankaj Agrawal and Mr. Shashi Kumar Kushwaha,
learned counsel in WPS 920/2022, also submit that the view taken in
Smt. Sulochana Netam (supra) is sound and does not suffer from
any infirmity.
13. Mr. Ratnesh Kumar Agrawal, learned counsel in WPS
6689/2018 further submits submits that Clause 6A of the Policy
contemplates regular government service and not contractual
appointment for disentitling any other member of the family of the
deceased government employee from securing compassionate
appointment. Accordingly, he submits that rejection of the application
of the petitioner for grant of compassionate appointment on the
ground that the brother of the petitioner is in Indian Army cannot be
sustained in law.
14. Mr. Vinod Kumar Sharma, learned counsel for the petitioner in
WPS No.223/2022 further submits that compassionate appointment
having been granted, subsequent cancellation of the appointment on
the ground that a member of the family of the deceased government
employee is in government service is arbitrary and cannot be
sustained.
15. Mr. Siddharth Pandey and Mr. Dashrath Prajapati, learned
counsel for the petitioner in WPS No.931/2022 further submit that the
post of Shiksha Karmi Grade-III is not a post in government service
as held by this Court in WPS No.6828/2021 vide order dated
28.01.2022 and therefore, rejection of the case of the petitioner on
the ground that the elder brother of the petitioner is in government
service is untenable in law.
16. Mr. Hemant Kesharwani and Ms. Suresh Tandon, learned
counsel for the petitioner in WPS 2887/2017 contend that death of
the deceased government employee having taken place before
insertion of Clause 6A by amendment effected on 29.08.2016,
reliance placed on Clause 6A for rejecting the application is not
sustainable in law as the relevant date for consideration for
appointment on compassionate ground is the extant policy on the
date of death of government employee.
17. Mr. Bharat Rajput, the learned counsel in WA No.110/2020
submits that when Clause 6A of the Policy disentitles an applicant
from securing compassionate appointment only if any other member
of the family is in government service, the view taken by the learned
Single Judge in WPS No.1206/2018 that so long as a member of the
family of the deceased government employee is in employment,
other member of the family is not entitled to compassionate
appointment, is bad in law and therefore, the order of the learned
Single Judge dated 07.02.2018 passed in WPS No.1206/2018 is
liable to be set aside as the brother of the petitioner was not in
government employment but in the service of State Bank of India. It
is submitted that when Clause 6A of the Policy has laid down that in
the event of any other member of the family of the deceased
government employee is in government service, another member of
the family of the deceased government employee would not be
entitled to compassionate appointment, the Policy cannot be
extended by the Court to take within its fold any other employment.
18. Mr. Jitendra Pali, Mr. H.S. Ahluwalia, learned Deputy Advocate
Generals and Mr. Gagan Tiwari, learned counsel appearing for the
respondents submit that in Neeraj Kumar Uke vs. State of
Chhattisgarh and Others (WA No.324/2021) vide judgment dated
10.12.2021, it was held by a Division Bench of this Court that
compassionate appointment can be claimed only on the basis of
policy applicable for such appointment and that when the policy 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 family member in
government service is not giving any financial assistance. It is
submitted that in exercise of powers of judicial review under Article
226 of the Constitution of India no direction may be issued for
considering compassionate appointment beyond the purview of the
policy. It is submitted that having regard to nature of compassionate
appointment, the stipulation laid down in Clause 6A of the Policy
disentitling a family member of the deceased government employee
compassionate appointment if any other family member of the
deceased government employee is in government service cannot be
said to be arbitrary or illegal. It is also contended that cancellation of
compassionate appointment after following principles of natural
justice after it came to light that another member of the family of the
deceased government servant is in government service is wholly
justified. It is further contended that the term "government service"
appearing in Clause 6A ought to be given expanded meaning so as
to bring within its fold service in any organisation, both regular and
contractual. Reliance is placed on the decision in the case of N.C.
Santosh v. The State of Karnataka and Others , reported in (2020) 7
SCC 617 to contend that policy which is in force at the time of
consideration of the application for compassionate appointment has
to be applied and not the policy which was in force at the time of
death of the government servant.
19. We have considered the submissions of the learned counsel
for the parties and have perused the materials on record.
20. The writ petitions/writ appeal under consideration can be
categorized in six broad heads:
Category-A. Writ petition challenging Clause 6A of
the policy. In this category falls WPS No . 561/2022.
Category-B. Writ petition where the petitioners had
been declined compassionate appointment on the
ground that one of the family members of the
deceased government servant is in government
service. In this category falls WPS Nos. 169/2022,
197/2022, 270/2022, 592/2022, 596/2022,
652/2022, 823/2022, 920/2022, 931/2022,
1136/2022, 1196/2022, 1418/2022.
Category-C. Writ petition questioning cancellation of
compassionate appointment of the petitioner after it
came to light that one of the family members of the
deceased government servant is already in
government service. In this category falls WPS No.
223/2022.
Category-D. Writ petition questioning refusal of
compassionate appointment on the ground that one
of the family members of the deceased government
employee is working in State Bank of India. In this
category falls WA No. 110/2020.
Category-E. Writ petition questioning denial of
compassionate appointment on the ground that one
of the family members of the deceased government
servant is in government service while the family
member was working under Indian Army on
contractual basis. In this category falls WPS No.
6689/2018.
Category-F. Writ petition wherein assertion is made
that the policy in existence on the date of demise of
the government servant is relevant and refusal to
grant compassionate appointment taking note of the
changed policy at the time of consideration is illegal.
In this category falls WPS No. 2887/2017.
21. At the out set, it will be appropriate to take note of a few
decisions of the Hon'ble Supreme Court relating to compassionate
appointment.
22. In Umesh Kumar Nagpal v. State of Haryana, reported in
(1994) 4 SCC 138, the Hon'ble Supreme Court, at paragraph 2, had
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)."
23. In State of Haryana v. Rani Devi, reported in (1996) 5 SCC
308, it was observed that the claim of the person concerned for
appointment on compassionate ground is based on the premise that
he was dependent on the deceased employee. Strictly, this claim
cannot be upheld on the touchstone of Article 14 or 16 of the
Constitution of India. However, such claim is considered as
reasonable and permissible on the basis of sudden crisis occurring in
the family of such employee who has served the State and dies while
in service and that is why it is necessary for the authorities to frame
rules, regulations or to issue such administrative orders which can
stand the test of Articles 14 and 16. Appointment on compassionate
ground cannot be claimed as a matter of right and the same cannot
be made applicable to all types of posts irrespective of the nature of
service rendered by the deceased employee.
24. In Director of Education (Secondary) v. Pushpendra Kumar ,
reported in (1998) 5 SCC 192, the Hon'ble Supreme Court while
discussing the object of compassionate appointment, at paragraph 8,
had observed as follows :
"8. The object underlying a provision for grant of
compassionate employment is to enable the family
of the deceased employee to tide over the sudden
crisis resulting due to death of the bread-earner
which has left the family in penury and without any
means of livelihood. Out of pure humanitarian
consideration and having regard to 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 for giving gainful appointment to
one of the dependants of the deceased who may be
eligible for such appointment."
25. 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."
26. In SAIL v. Madhusudan Das, reported in (2008) 15 SCC 560,
the Hon'ble Supreme Court observed that compassionate
appointment is a concession and not a right and the criteria laid
down in the rules must be satisfied by all aspirants.
27. In V. Sivamurthy v. State of A.P ., reported in (2008) 13 SCC
730, the Hon'ble Supreme Court summarised the principles relating
to compassionate appointment as follows :
"18. (a) Compassionate appointment based only on
descent is impermissible. Appointments in Public
Service should be made strictly on the basis of open
invitation of applications and comparative merit, having
regard to Articles 14 and 16 of the Constitution of India.
Though no other mode of appointment is permissible,
appointments on compassionate grounds are a well-
recognised exception to the said general rule, carved
out in the interest of justice to meet certain
contingencies.
(b) Two well recognized contingencies which are
carved out as exceptions to the general rule are :
(i) appointment on compassionate grounds to meet the
sudden crisis occurring in a family on account of the
death of the bread-winner while in service.
(ii) appointment on compassionate ground to meet the
crisis in a family on account of medical invalidation of
the bread winner.
Another contingency, though less recognized, is where
land holders lose their entire land for a public project,
the scheme provides for compassionate appointment
to members of the families of project affected persons.
(Particularly where the law under which the acquisition
is made does not provide for market value and
solatium, as compensation).
(c). Compassionate appointment can neither be
claimed, nor be granted, unless the rules governing the
service permit such appointments. Such appointments
shall be strictly in accordance with the scheme
governing such appointments and against existing
vacancies.
(d) Compassionate appointments are permissible only
in the case of a dependant member of the family of the
employee concerned, that is spouse, son or daughter
and not other relatives. Such appointments should be
only to posts in the lower category, that is, Classes III
and IV posts and the crises cannot be permitted to be
converted into a boon by seeking employment in Class
I or II posts."
(emphasis supplied)
28. 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 ground 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 dependents 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.
29. In Bhawani Prasad Sonkar v. Union of India and Others ,
reported in (2011) 4 SCC 209, the Hon'ble Supreme Court while
dealing with the object of compassionate appointment, and
entitlement and requisites for compassionate appointment held as
under :
"15. Now, it is well settled that compassionate
employment is given solely on humanitarian grounds
with the sole object to provide immediate relief to the
employee's family to tide over the sudden financial
crisis and cannot be claimed as a matter of right.
Appointment based solely on descent is inimical to our
constitutional scheme, and ordinarily public
employment must be strictly on the basis of open
invitation of applications and comparative merit, in
consonance with Articles 14 and 16 of the Constitution
of India. No other mode of appointment is permissible.
Nevertheless, the concept of compassionate
appointment has been recognised as an exception to
the general rule, carved out in the interest of justice, in
certain exigencies, by way of a policy of an employer,
which partakes the character of the service rules. That
being so, it needs little emphasis that the scheme or
the policy, as the case may be, is binding both on the
employer and the employee. Being an exception, the
scheme has to be strictly construed and confined only
to the purpose it seeks to achieve.
* * * *
20. Thus, while considering a claim for employment on
ompassionate ground, the following factors have to be
borne in mind:
(i) Compassionate employment cannot be made in the
absence of rules or regulations issued by the
Government or a public authority. The request is to be
considered strictly in accordance with the governing
scheme, and no discretion as such is left with any
authority to make compassionate appointment dehors
the scheme.
(ii) An application for compassionate employment must
be preferred without undue delay and has to be
considered within a reasonable period of time.
(iii) An appointment on compassionate ground is to
meet the sudden crisis occurring in the family on
account of the death or medical invalidation of the
breadwinner while in service. Therefore,
compassionate employment cannot be granted as a
matter of course by way of largesse irrespective of the
financial condition of the deceased/incapacitated
employee's family at the time of his death or incapacity,
as the case may be.
(iv) Compassionate employment is permissible only to
one of the dependants of the deceased/incapacitated
employee viz. parents, spouse, son or daughter and
not to all relatives, and such appointments should be
only to the lowest category that is Class III and IV
posts."
30. in State of Himachal Pradesh and Another v. Parkash Chand ,
reported in (2019) 4 SCC 285, the Hon'ble Supreme Court has held
that direction to consider application for compassionate appointment
of dependents of deceased employee dehors policy is impermissible,
and observed as under:
"9. The High Court has observed that the State should
consider cases for appointment on compassionate
basis by dealing with the applications submitted by
sons, or as the case may be, daughters of deceased
government employees, even though, one member of
the family is engaged in the service of the Government
or an autonomous Board or Corporation. This direction
of the judgment of the High Court virtually amounts to a
mandamus to the State Government to disregard the
terms which have been stipulated in Para 5(c) of its
Policy dated 18-1-1990. The Policy contains a limited
exception which is available only to a widow of a
deceased employee who seeks compassionate
appointment even though one of the children of the
deceased employee is gainfully employed with the
State. The basis for this exception is to deal with cases
where the widow is not being supported financially by
her children.
10. In the exercise of judicial review under Article 226
of the Constitution, it was not open to the High Court to
rewrite the terms of the Policy. It is well settled 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. Umesh Kumar Nagpal v. State of Haryana,
(1994) 4 SCC 138; SBI v. Kunti Tiwary, (2004)7SCC
271; Punjab National Bank v. Ashwini Kumar Teneja,
(2004) 7 SCC 265; SBI v. Somvir Singh, (2007) 4 SCC
778; Mumtaz Yunus Mulani v. State of Maharashtra,
(2008) 11 SCC 384; Union of India v. Shashank
Goswami, (2012) 11 SCC 307; SBI v. Surya Narain
Tripathi, (2014) 15 SCC 739; and Canara Bank v. M.
Mahesh Kumar, (2015) 7 SCC 412.
11. For the above reasons, we are of the view that the
judgment of the High Court is unsustainable. The High
Court has virtually rewritten the terms of the Policy and
has issued a direction to the State to consider
applications which do not fulfill the terms of the Policy.
This is impermissible."
31. In Union of India & Another v. V.R. Tripathi , reported in (2019)
14 SCC 646, the Hon'ble Supreme Court observed at paragraph 13
as follows:
"13. The policy of compassionate appointment is
premised on the death of an employee while in
harness. The death of an employee is liable to render
the family in a position of financial hardship and need.
Compassionate appointment is intended to alleviate the
hardship that the family of a deceased employee may
face upon premature death while in service.
Compassionate appointment, in other words, is not
founded merely on parentage or descent, for public
employment must be consistent with equality of
opportunity which Article 16 of the Constitution
guarantees. Hence, before a claim for compassionate
appointment is asserted by the family of a deceased
employee or is granted by the State, the employer must
have rules or a scheme which envisage such
appointment. It is in that sense that it is a trite principle
of law that there is no right to compassionate
appointment. Even where there is a scheme of
compassionate appointment, an application for
engagement can only be considered in accordance with
and subject to fulfilling the conditions of the rules or the
scheme. The submission which has been urged on
behalf of the Union of India by the learned Additional
Solicitor General is premised on the basis that there is
no right to compassionate appointment. There can be
no doubt about the principle that there is no right as
such to compassionate appointment but only an
entitlement, where a scheme or rules envisaging it
exist, to be considered in accordance with the
provisions."
32. In SAIL and Another v. Awadesh Singh and Others , reported in
(2001) 10 SCC 621, the question that had come up for consideration
before the Hon'ble Supreme Court was as to whether under the
Memorandum of Agreement in question, it was permissible for a
dependent of the deceased to claim an appointment on
compassionate ground even when some other dependent of the
deceased is already in service. The Hon'ble Supreme Court held that
the very purpose for which such scheme had been evolved would get
frustrated if a claim on priority basis is made by a dependent of the
deceased notwithstanding the fact that the other dependent of the
deceased is already in service.
33. It is, thus, well-settled that appointment on a compassionate
ground 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 an open invitation providing equal opportunity to all
the eligible persons to participate in the selection process. The
dependent of employees, who die in harness, do not have any
special claim or right to employment, except by way of concession
that may be extended by the employer under the rules by separate
scheme, to enable the family of the deceased to get over the sudden
family crisis.
34. In Parkash Chand (supra), the policy framed by the State
Government contains the following conditions of eligibility in Para
5(c) :
"In all cases where one or more members of the
family are already in government service or in
employment of autonomous bodies/bodies/Boards/
Corporations, etc. of the State/Central Government,
employment assistance should not under any
circumstances be provided to the second or third
member of the family. In cases, however, where the
widow of the deceased government servant
represents or claims that her employed sons/
daughters are not supporting her, the request of
employment assistance should be considered only in
respect of the widow. Even for allowing
compassionate appointment to the widow in such
cases the opinion of the Department of Personnel,
and Finance Department should specifically be
sought and the matter finally decided by the Council
of Ministers."
35. The respondent's application for compassionate appointment in
Parkash Chand (supra) was rejected on the ground that the brother
of the respondent is in service of the Himachal Pradesh Electricity
Board. In the writ petition filed before the High Court, the respondent
had urged that his brother was living separately for seventeen years
and accordingly had prayed for setting aside the order of rejection as
well as a direction for his appointment as a Peon on compassionate
ground. The High Court had observed that the State should consider
the cases for appointment on compassionate basis by dealing with
the applications submitted by sons, or as the case may be,
daughters of the deceased government employees, even though,
one member of the family is engaged in the service of the
Government or an autonomous Board or Corporation. The Hon'ble
Supreme Court held that in exercise of judicial review under Article
226 of the Constitution, it was not open to the High Court to rewrite
the terms of the Policy and the direction of the High Court virtually
amounted to a mandamus to the State Government to disregard the
terms which have been stipulated in Para 5(c) of its Policy dated
18.01.1990. It was noticed that the Policy contains a limited
exception which is available only to a widow of a deceased employee
who seeks compassionate appointment even though one of the
children of the deceased employee is gainfully employed with the
State. The basis for this exception was to deal with cases if the
widow is not being financially supported by her children. It was held
by the Supreme Court that the High Court had virtually rewritten the
terms of the Policy which is impermissible in law and accordingly,
had set aside the order of the High Court. Resultantly, the writ
petition was also dismissed.
36. In view of the above decisions and the law relating to
compassionate appointment as enunciated by the Hon'ble Supreme
Court, it cannot be construed and held that Clause 6A of the Policy is
in any way arbitrary on the ground that it disentitles any other
member of the family of the deceased government servant for
compassionate appointment if any member of the family is already in
government service.
37. This Court, in Neeraj Kumar Uke (supra), at paragraph16 had
observed as follows:
"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."
38. It appears that the Judgment rendered in Neeraj Kumar Uke
(supra) was not brought to the notice of the learned Single Judge by
any of the parties while the matter was referred for consideration of a
Larger Bench.
39. In WA No. 33 of 2022 decided on 18.02.2022 (State of
Chhattisgarh & Others v. Smt. Muniya Mukharjee) , this Court
analyzed the provisions contained under Clauses 5 and 6A of the
Policy and recorded as follows at paragraphs 15 and 6 :
"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."
40. In Chief Commissioner, Central Excise and Customs, Lucknow
and Others v. Prabhat Singh, reported in (2012) 13 SCC 412, the
Hon'ble Supreme Court while considering the application for
compassionate appointment has held that the courts and tribunals
should not fall prey to any sympathy syndrome, so as to issue
directions for compassionate appointments, without reference to the
prescribed norms and observed in paragraph 19 of its report as
under :
"19. The courts and tribunals should not fall prey to any
sympathy syndrome, so as to issue directions for
compassionate appointments, without reference to the
prescribed norms. The courts are not supposed to
carry Santa Claus's big bag on Christmas eve to
disburse the gift of compassionate appointment to all
those who seek a court's intervention. The courts and
tribunals must understand that every such act of
sympathy, compassion and discretion wherein
directions are issued for appointment on
compassionate grounds could deprive a really needy
family requiring financial support, and thereby, push
into penury a truly indigent, destitute and impoverished
family. Discretion is therefore ruled out. So are
misplaced sympathy and compassion."
41. Reiterating the conclusion in Neeraj Kumar Uke (supra) and
bearing in mind that compassionate appointment must be governed
by terms on which the State lays down the policy offering
employment assistance to a member of the family of a deceased
government employee, the question posed by the learned Single
Judge is answered by observing that this Court, in exercise of writ
jurisdiction under Article 226 of the Constitution of India, cannot
direct the State Government to hold an enquiry qua dependency/
financial support by one of the family members of the deceased
government servant who is already in government service to the
other family members of the deceased government servant when a
claim is made by another member of the family for compassionate
appointment as the same would amount to rewriting the terms of the
policy.
42. In view of the above discussion, WPS No.561/2022 is
dismissed.
43. In view of the above discussion, necessarily, Category-B
cases, namely, WPS Nos. 169/2022, 197/2022, 270/2022, 592/2022,
596/2022, 652/2022, 823/2022, 920/2022, 931/2022, 1136/2022,
1196/2022, 1418/2022 have to be dismissed and accordingly, they
are dismissed.
44. However, with regard to WPS Nos. 592/2022, 920/2022 and
931/2022, a little elucidation is called for. In WPS No.592/2022, the
petitioner prayed for compassionate appointment on the death of his
brother. It is to be noticed that under Clause 5, a brother is not
eligible for compassionate appointment. That apart, the wife of the
deceased brother is also in government service. The letter dated
03.05.2012, relied on in WPS No. 920/2022, does not say that
Clause 6A is not applicable if a government servant dies of Covid-19.
The case of the petitioner in WPS 931/2022 is that his elder brother
was appointed as Shiksha Karmi Grade III on 03.09.2007 and is
presently working in the post of Assistant Teacher (LB) and that he
being an employee of Panchayat Department, he is not a
government servant as held by a learned Single Judge in Smt.
Shweta Singh v. State of Chhattisgarh & Others (WPS No.
6828/2021) vide order dated 28.01.2022. In the aforesaid case, it
was held that Shiksha Karmi is not a holder of a civil post and
therefore, not a government servant. In the return filed by the State
respondents, it is stated that brother of the petitioner is posted as
Assistant Grade-III in School Education Department. It is seen from
the records that brother of the petitioner was absorbed in School
Education Department on 01.07.2018 and after such absorption, he
had become a government servant. When the brother of the
petitioner is working as Assistant Grade-III and posted as Assistant
Teacher (LB) in Government Middle School, Block Ambikapur, the
plea taken by the petitioner that his brother is a Shiksha Karmi and
thus, not in government service cannot be accepted.
45. In State of Haryana and Another v. Ankur Gupta , reported in
(2003) 7 SCC 704, the compassionate appointment was cancelled
on the ground that the mother was in government employment. The
writ petition filed against the order of cancellation was allowed by the
High Court. The High Court allowed the writ petition proceeding on a
basis as if there was relaxation of the stipulations. No provision
having been shown whereby relaxation was permissible, the Hon'ble
Supreme Court set aside the judgment of the High Court, but taking
note of the fact that the compassionate appointment had continued
for more than four years and that he had become over-aged, it was
observed that in case he applied for a job in the Government within a
period of two years and is selected, the question of he having
crossed the age bar would not stand in his way and the service
rendered by him shall be duly considered.
46. In S. Mohan v. Government of Tamil Nadu and Another ,
reported in (1998) 9 SCC 485, the appellant before the Hon'ble
Supreme Court was appointed as Junior Assistant on compassionate
ground after he had sought employment on compassionate ground
after a lapse of ten years from the death of his mother. After about
2½ years of service, the service of the appellant was terminated. The
Hon'ble Supreme Court noted that the mother of the appellant was
not the sole bread-winner of the family as two sons were already
employed and his father was also receiving pension. It was also
noticed that at the time of death of his mother, the appellant was
around 12 or 13 years of age. Taking note of the above, the appeal
was dismissed.
47. In LIC of India v. Asha Ramchhandra Ambekar , reported in
(1994) 2 SCC 718, it was pointed out that the High Courts and
Administrative Tribunals cannot confer benediction impelled by
sympathetic considerations to make appointments on compassionate
grounds when the regulations framed in respect thereof do not cover
and contemplate such appointments.
48. Admittedly, brother of the petitioner in WPS No.223/2022 is in
government service. In the return filed by the State respondents, it is
stated that in the application submitted by him for compassionate
appointment the aforesaid fact was concealed. Subsequently,
complaint being received with regard to his appointment being
contrary to the Policy in question, after issuing show-cause and
complying with principles of natural justice, his appointment was
cancelled. It cannot be countenanced that compassionate
appointment cannot be cancelled as is sought to be argued by the
learned counsel for the petitioner even if such appointment is
obtained on concealment of material facts. In that view of the matter
WPS No.223/2022 is dismissed.
49. Clause 6A rendered an applicant ineligible to be appointed on
compassionate grounds if any member of the family of the
deceased government employee is in government employment.
Compassionate appointment has to be made strictly in accordance
with the policy. Therefore, we are of the opinion that in absence of
any stipulation in Clause 6A that any member of the family of the
deceased government servant being in government service or in
employment of autonomous bodies/bodies/Boards/Corporations, etc.
of the State/Central Government or regular employment in any other
service, rejection of the case of the appellant in WA No.110/2020 on
the ground that her brother is working in State Bank of India cannot
be sustained. We are of the view that the learned Single Judge was
not justified in expanding the provision of Clause 6A to also include
any other type of employment beyond the government service within
the ambit of Clause 6A.
50. In that view of the matter, the order dated 07.02.2018 passed
by the learned Single Judge in WPS No.1206/2018 is set aside and
the writ appeal is allowed.
51. In WPS No. 6689/2018, it is pleaded by the petitioner that his
brother is working in Indian Army on contractual basis. In the return
filed by the State/respondents the assertion that his brother is
working on contractual basis, is not denied and it is only stated that
as the elder brother of the petitioner is working in Indian Army, he is
not entitled to compassionate appointment as per the amended
Policy. The logic behind denying compassionate appointment to a
member of the family of the deceased government servant when
another member is in government service is that income is assured
on a permanent basis and in that view of the matter, term
"government service", in our considered opinion, as occurring in
Clause 6A denotes regular government service and not contractual
service and therefore, rejection of the case of the petitioner on the
ground that the brother of the petitioner being in government service
he is not entitled to compassionate appointment, cannot be
sustained. Accordingly, the order dated 14.09.2018 impugned in the
writ petition is set aside and the respondents are directed to consider
the case of the petitioner for compassionate appointment in the light
of the policy within a period of two months from the date of receipt of
a copy of this judgment.
52. Accordingly, WPS No.6689/2018 is allowed as indicated
above.
53. This brings us to consideration of WPS No. 2887/2017.
54. In Raj Kumar (supra), the Hon'ble Supreme Court held that the
scheme for compassionate appointment that is in force when the
application is actually considered and not the scheme that was in
force earlier when the application was made, would be applicable.
55. In MGB Gramin Bank v. Chakrawarti Singh , reported in (2014)
13 SCC 583, it was observed as follows:
"15. The Court considered various aspects of
service jurisprudence and came to the conclusion that
as the appointment on compassionate ground may not
be claimed as a matter of right nor an applicant
becomes entitled automatically for appointment, rather
it depends on various other circumstances i.e. eligibility
and financial conditions of the family, etc., the
application has to be considered in accordance with
the scheme. In case the Scheme does not create any
legal right, a candidate cannot claim that his case is to
be considered as per the Scheme existing on the date
the cause of action had arisen i.e. death of the
incumbent on the post. In State Bank of India & Anr.
(supra), this Court held that in such a situation, the
case under the new Scheme has to be considered."
56. In State Bank of India v. Jaspal Kaur, reported in (2007) 9 SCC
571, the Hon'ble Supreme Court had observed that the High Court
has erred in deciding the matter in favour of the respondent applying
the scheme formulated on 04.08.2005, when the respondent's
application was made in 2000 and it was held that a dispute arising
in 2000 cannot be decided on the basis of a scheme that came into
place much after the dispute had arisen.
57. In Canara Bank and Another v. M. Mahesh Kumar , reported in
(2015) 7 SCC 412, the Hon'ble Supreme Court held that cause of
action to be considered for compassionate appointment arose when
the particular 'Dying in Harness Scheme' dated 08.05.1993 in that
case was in force, under which the writ petitioner therein was not
found to be eligible for compassionate appointment. The Hon'ble
Supreme Court held that his case could not be considered as per the
subsequent scheme, which came into being in 2005 providing for
ex-gratia payment.
58. In Indian Bank and Others v. Promila and Another , reported in
(2020) 2 SCC 729, the Hon'ble Supreme Court reiterated the
proposition laid down in M. Mahesh Kumar (supra) that relevant
scheme prevalent on the date of demise of the employee is
applicable.
59. In State Bank of India and Others v. Sheo Shankar Tewari ,
reported in (2019) 5 SCC 600, noticing the divergent principles
emanating from the two lines of decisions, namely, Raj Kumar
(supra) and Chakrawarti Singh (supra) on the one hand and M.
Mahesh Kumar (supra) and Jaspal Kaur (supra) on the other hand,
rendered by the Benches of two Hon'ble Judges, it was observed
that the matter requires consideration by a larger Bench of at least
three Hon'ble Judges of the Hon'ble Supreme Court.
60. After the aforesaid decision in Sheo Shankar Tewari (supra), in
State of Madhya Pradesh v. Amit Shrivas, reported in (2020) 10 SCC
496, a two-Judge Bench of the Hon'ble Supreme Court held that as
per the policy prevailing on the date of death, a work-charged/
contingency fund employee was not entitled to compassionate
appointment and reiterated that the relevant scheme prevalent on the
date of demise of the employee is applicable.
61. In Ashish Awasthi, reported in AIR Online 2021 SC 1047 ,
another two-Judge Bench of the Hon'ble Supreme Court held that the
scheme prevalent on the date of death of an employee is only to be
considered.
62. In N.C. Santosh (supra), a three-judge Bench of the Hon'ble
Supreme Court, at paragraphs 14,15,16,17 and 19, observed as
follows :
"14. This Court in State Bank of India v. Raj Kumar,
(2010)11 SCC 661 while reiterating that no aspirant has
a vested right to claim compassionate appointment,
declared that the norms that are in force, when the
application is actually considered, will be applicable.
The employer's right to modify the scheme depending
on its policies was recognized in this judgment.
Similarly in MGB Gramin Bank v. Chakrawarti Singh,
(2014) 13 SCC 583 this Court reiterated that
compassionate appointment has to be considered in
accordance with the prevalent scheme and no aspirant
can claim that his case should be considered as per the
scheme existing on the date of death of the government
employee.
15. However in Canara Bank v. M. Mahesh Kumar,
(2015) 7 SCC 412 in the context of major shift in policy,
whereunder, instead of compassionate appointment
(envisaged by the scheme dated 8.5.1993), ex gratia
payment was proposed (under the circular dated
14.02.2005), the Court adopted a different approach.
Noticing the extinguishment of, the right to claim
appointment, this Court held the "dying in harness
scheme" which was prevalent on the death of the
employee, be the basis for consideration.
16. A two judges bench headed by Justice Uday U.
Lalit noticed the Supreme Court's view in State Bank of
India v. Raj Kumar, (supra) and MGB Gramin Bank v.
Chakrawarti Singh, (supra) on one side and the
contrary view in Canara Bank v. M. Mahesh Kumar
(supra) and felt the necessity of resolution of the
conflicting question on whether the norms applicable on
the date of death or on the date of consideration of
application should apply. Accordingly, in State Bank of
India & Others v. Sheo Shankar Tewari, (2019) 5 SCC
600, the Court referred the matter for consideration by
a larger Bench so that the conflicting views could be
reconciled.
17. The above discussion suggest that the view
taken in Canara Bank & Another v. M. Mahesh Kumar
(supra) is to be reconciled with the contrary view of the
coordinate bench, in the two earlier judgments.
Therefore, notwithstanding the strong reliance placed
by the appellant's counsel on Canara Bank & Another
v. M. Mahesh Kumar (supra) as also the opinion of the
learned Single Judge of the Karnataka High Court in
Uday Krishna Naik v. State of Karnataka & Others, it
can not be said that the appellant's claim should be
considered under the unamended provisions of the
Rules prevailing on the date of death of the government
employee.
19. Applying the law governing compassionate
appointment culled out from the above cited judgments,
our opinion on the point at issue is that the norms,
prevailing on the date of consideration of the
application, should be the basis for consideration of
claim for compassionate appointment. A dependent of
a government employee, in the absence of any vested
right accruing on the death of the government
employee, can only demand consideration of his/her
application. He is however disentitled to seek
consideration in accordance with the norms as
applicable, on the day of death of the government
employee."
63. It is to be noticed that the decisions in Promila & Another
(supra), N.C. Santosh (supra) and Ashish Awasthi (supra), came to
be delivered after the reference was made to a larger Bench in Sheo
Shankar Tewari (supra). In Promila & Another (supra), Amit Shrivas
(supra) and Ashish Awasthi (supra), reference made to a larger
Bench was not noticed.
64. In The Secretary to Government, Department of Education
(Primary) & Others v. Bheemesh alias Bheemappa (Civil Appeal
No.7752 of 2021), the facts were to effect that the appointment on
compassionate ground in the State of Karnataka was governed by a
set of Rules known as Karnataka Civil Services (Appointment on
Compassionate Grounds) Rules, 1996 issued in exercise of the
powers conferred by Section 3(1) read with Section 8 of the
Karnataka State Civil Services Act, 1978. On the date on which the
sister of the respondent died-in-harness i.e. 08.12.2020, the Rules
did not include an unmarried brother, within the definition of the
expression "dependent of a deceased government servant" under
Rule 2(1)(a) of the said Rules vis-a-vis a deceased female unmarried
government servant. By a notification dated 11.07.2012, an
unmarried brother of a deceased female unmarried government
servant was included within the definition. The Hon'ble Supreme
Court, after noticing the reference made in Sheo Shankar Tewari
(supra), observed that the apparent conflict between those two lines
of decisions was on account of the difference between an
amendment by which an existing benefit was withdrawn or diluted
and an amendment by which the existing benefit was enhanced and
that the interpretation adopted by the Hon'ble Supreme Court varied
depending upon the nature of the amendment.
65. In Bheemesh alias Bheemappa (supra), the two-Judge Bench
of the Hon'ble Supreme Court, at paragraphs 17 and 18 had
observed as follows :
"17. Keeping the above in mind, if we critically
analyse the way in which this Court has proceeded to
interpret the applicability of a new or modified
Scheme that comes into force after the death of the
employee, we may notice an interesting feature. In
cases where the benefit under the existing Scheme
was taken away or substituted with a lesser benefit,
this Court directed the application of the new
Scheme. But in cases where the benefits under an
existing Scheme were enlarged by a modified
Scheme after the death of the employee, this Court
applied only the Scheme that was in force on the date
of death of the employee. This is fundamentally due
to the fact that compassionate appointment was
always considered to be an exception to the normal
method of recruitment and perhaps looked down
upon with lesser compassion for the individual and
greater concern for the rule of law.
18. If compassionate appointment is one of the
conditions of service and is made automatic upon the
death of an employee in harness without any kind of
scrutiny whatsoever, the same would be treated as a
vested right in law. But it is not so. Appointment on
compassionate grounds is not automatic, but subject
to strict scrutiny of various parameters including the
financial position of the family, the economic
dependence of the family upon the deceased
employee and the avocation of the other members of
the family. Therefore, no one can claim to have a
vested right for appointment on compassionate
grounds. This is why some of the decisions which we
have tabulated above appear to have interpreted the
applicability of revised Schemes differently, leading to
conflict of opinion. Though there is a conflict as to
whether the Scheme in force on the date of death of
the employee would apply or the Scheme in force on
the date of consideration of the application of
appointment on compassionate grounds would apply,
there is certainly no conflict about the underlying
concern reflected in the above decisions. Wherever
the modified Schemes diluted the existing benefits,
this Court applied those benefits, but wherever the
modified Scheme granted larger benefits, the old
Scheme was made applicable."
66. The Hon'ble Supreme Court in Bheemesh alias Bheemappa
(supra), proceeded to hold that the date of death alone is a fixed
factor and therefore, interpretation as to the applicability of the
modified scheme should depend only upon a determinate and fixed
criteria such as the date of death and not an indeterminate and
variable factor. In light of the facts as obtaining in the case, the
Hon'ble Supreme Court held that only because of the fact that the
application for compassionate appointment was taken up for
consideration after the amendment was incorporated, the respondent
could not have sought the benefit of the amendment and resultantly,
the application of the respondent for compassionate appointment
was dismissed while allowing the appeal.
67. It is seen that with regard to the question as to whether the
Policy in force on the date of death of the government employee is to
be applied or the Policy at the time of consideration of the application
for compassionate appointment is to be considered, there is a
divergence of opinion. It is already noticed that a reference was
already made in Sheo Shankar Tewai (supra) for consideration of
this issue by at least a Bench of minimum three Hon'ble Judges. It is
to be noticed that a three Judge Bench of the Hon'ble Supreme
Court had taken a view that it is the scheme that is holding the field
on the date of consideration has to be applied. After noticing the
judgment in N.C. Santosh (supra) delivered by a three-Judge Bench,
a two-Judge Bench in Bheemesh alias Bheemappa (supra) had
noted that the Policy which was in force on the date of death of the
government employee should be the basis for consideration of a
claim for compassionate appointment. It was highlighted by the
Hon'ble Supreme Court in the aforesaid case that where the benefit
under the existing Policy was taken away or substituted with a lesser
benefit, the Court directed the application of the new Policy, and in
cases where the benefits under an existing Policy were enlarged by
a modified Policy after the death of the employee, the Court applied
only the Policy that was in force on the date of death of the
employee. The same was also explained to the effect that such
interpretation was fundamentally due to the fact that compassionate
appointment was always considered to be an exception to the normal
method of recruitment and perhaps looked down upon with lesser
compassion for the individual and greater concern for the rule of law.
68. As of now, there is only one three-Judge Bench decision on the
aforesaid issue i.e. in N.C. Santosh (supra) while all other judgments
noticed above are of two-Judge Bench. In the above circumstance,
this Court deems it appropriate to follow the principle laid down in
N.C. Santosh (supra).
69. In view of the above discussion, WPS No.2887/2017 is
dismissed.
70. For ready reference, the outcome of the writ petitions/writ
appeal is indicated as hereunder: (1) WPS Nos. 2887/2017,
169/2022, 197/2022, 223/2022, 270/2022, 561/2022, 592/2022,
596/2022, 652/2022, 823/2022, 920/2022, 931/2022, 1136/2022,
1196/2022, 1418/2022 are dismissed; (2) WPS No. 6689/2018 and
WA No. 110/2020 are allowed.
71. No cost.
Sd/- Sd/-
(Arup Kumar Goswami) (Parth Prateem Sahu)
CHIEF JUSTICE JUDGE
Hem
