Chattisgarh High Court
State Of Chhattisgarh vs Smt. Sweta Singh on 19 September, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Wirt Appeal No. 199 of 2022
1. State of Chhattisgarh through its Secretary, Department of School
Education, Mahanadi Bhawan, Mantralaya, Naya Raipur, Chhattisgarh.
2. State of Chhattisgarh, through its Secretary, Department of General
Administration, Mahanadi Bhawan, Mantralaya, Naya Raipur,
Chhattisgarh.
3. The Director, Directorate of Public Instructions (Lok Shikshan
Sanchalanalay) Naya Raipur, District Raipur (Wrongly mentioned as
Directorate - Public Education in the writ petition)
4. The Collector, District Bilaspur, Chhattisgarh.
5. The Collector, District Surajpur, Chhattisgarh.
6. The Joint Director, School Division, Bilaspur, District Bilaspur,
Chhattisgarh.
7. The District Education Officer, District Bilaspur, Chhattisgarh.
8. The District Education Officer, District Surajpur, Chhattisgarh.
9. The Principal, Government Higher Secondary School, Lakhasar, Block
Takhatpur, District Bilaspur, Chhattisgarh.
---- Appellants
Versus
Smt. Sweta Singh W/o Basant Pratap Singh, aged about 35 years,
Presently Terminated, Assistant Grade III, Govt. Higher Secondary
School Lakhasar, Block Takhatpur, District Bilaspur, Chhattisgarh.
---- Respondent
(Cause Title taken from Case Information System)
For Appellants : Mr. Gagan Tiwari, Deputy Govt. Advocate
For Respondent : Mr. A.N. Bhakta, Advocate
Date of hearing : 03.08.2022
Date of Judgment : 19.09.2022
__________________________________________________________
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
1. Heard Mr. Gagan Tiwari, learned Deputy Government Advocate,
appearing for the appellants as well as Mr. A.N.Bhakta, learned counsel,
appearing for the respondent.
2. This writ appeal is directed against an order dated 28.01.2022
passed by the learned Single Judge in WPS No.6828/2021 by which the
writ petition was allowed setting aside the order dated 23.11.2021
revoking the order of compassionate appointment of the writ petitioner/
respondent herein, and directing that the writ petitioner be reinstated on
the post of Assistant Grade-III along with all consequential service
benefits.
3. Manmohan Singh Pawar, father-in-law of the writ petitioner died-in-
harness on 16.12.2018 while working as Block Education Officer,
Surajpur. The writ petitioner's husband, namely, Basant Pratap Singh
and brother of the husband of the petitioner, namely, Akhilendra Pratap
Singh were Shiksha Karmis on the date of death of Manmohan Singh
Pawar.
4. It is not in dispute that in view of the decision of this Court in
Harnarayan Yadav v. Chhattisgarh Public Service Commission,
Raipur & Another, reported in ILR 2017 Chhattisgarh 1864, Shiksha
Karmis are not held to be government servants or holders of civil post.
5. 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. Having regard
to the issue arising in this appeal, at the outset, it will be relevant to take
note of clauses 5 and 6A, which translated into English, read as under:
"5. Eligible candidates for compassionate appointment: -
One of the dependent family member 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."
6. The writ petitioner submitted an application for compassionate
appointment on 07.01.2019. Later on, by an order dated 02.06.2021, she
was granted compassionate appointment. However, a show-cause notice
dated 26.10.2021 was issued on the ground that she had suppressed the
fact that her husband was working as Shiksha Karmi Grade-I with effect
from 30.08.2013 and her brother-in-law as Shiksha Karmi Grade-II with
effect from 16.07.2010. In compliance of the show-cause notice dated
26.10.2021, the writ petitioner submitted her reply on 30.10.2021. Not
being satisfied with the reply, the order dated 23.11.2021 was passed
cancelling the order of appointment of the writ petitioner.
7. In the application for compassionate appointment, in the column
meant for indicating whether any family member is in service, which could
be government service, semi-government or private, it was mentioned as
'No'.
8. The services of the husband of the writ petitioner being absorbed on
01.11.2020 and that of her brother-in-law on 01.07.2019 in a Government
Department, they became government servants with effect from such
dates.
9. The learned Single Judge, at paragraph 11 of the impugned order,
stated as follows:
"11. Now coming to the facts of the case, it is quite vivid
that the petitioner's husband namely Basant Pratap Singh and
her husband's brother namely Akhilendra Pratap Singh both
were Shiksha Karmis on the date of death of her father-in-law
Manmohan Singh Pawar and even the date on which the
petitioner made an application for grant of compassionate
appointment on 7.1.2019, till then they were working as Shiksha
Karmis and subsequently they have been absorbed in
Government Department on 1.7.2019 and 1.11.2020
respectively, but that will not make the petitioner ineligible for
the reasons that the petitioner was eligible to be appointed on
the date of sad demise of her father-in-law on 16.12.2018 for
which the petitioner had already made an application on
7.1.2019 as on that date and immediately thereafter her both
relatives were working as Shiksha Karmis and they were not in
Government service as it is well established by principle of law
laid down by this Court in Harnarayan Yadav (supra)."
10. Relying on the decision of the Hon'ble Supreme Court in Indian
Bank & Others v. Promila & Another, reported in (2020) 2 SCC 729,
at paragraph 14, the learned Single Judge observed as follows:
"14. Since on the date of death of the petitioner's father-in-law
Manmohan Singh Pawar and immediately thereafter no family
member of the petitioner was in Government service and both
the relatives were Shiksha Karmis and not in Government
service as on that date, the petitioner's appointment on 2.6.2021
(Annexure P13) could not have been interdicted on the ground
that subsequently the petitioner's husband and her husband's
brother both have become Government servant and in
Government service by virtue of absorption in Government
Department and policy applicable bars compassionate
appointment on that ground."
11. Mr. Tiwari has relied on the decisions in N.C. Santosh v. The
State of Karnataka and Others, reported in (2020) 7 SCC 617, State
Bank of India & Others v. Sheo Shankar Tewari , reported in (2019) 5
SCC 600, State Bank of India v. Raj Kumar, reported in (2010) 11
SCC 661, wherein it was held that the scheme prevalent on the date of
consideration of the application was relevant to contend that on the date
when appointment was granted to the writ petitioner, admittedly, two of
her family members, her husband and her brother-in-law were in
government service, and therefore, she was not entitled to be appointed
on compassionate basis. He submits that though her husband and
brother-in-law being in government employment was not cited and what
was cited was that her husband and brother-in-law were Shiksha
Karmis, which facts were suppressed, the same would not make any
difference as it is an undeniable position that two of her family members
are in government employment, and thus, ineligible to be appointed on
compassionate ground.
12. Per contra, relying on the order of the learned Single Judge, Mr.
Bhakta contends that no interference is called for with the order of the
learned Single Judge.
13. We have considered the submissions of learned counsel for the
parties and perused the materials on record.
14. It is well-settled that appointment on a compassionate ground is not
a source of recruitment and that 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.
15. The question that arises in this appeal is whether the scheme
prevalent at the time of demise of the father-in-law of the appellant or the
scheme in force at the time of consideration would be the basis for
consideration of the application for grant of compassionate appointment.
16. The issue raised in this appeal was considered in WPS No. 931 of
2022, Jitendra Kumar Jaiswal v. The State of Chhattisgarh & Others ,
which was disposed of on 06.09.2022 alongwith WPS No. 6689 of 2018,
Purendra Kumar Sinha v. State of Chhattisgarh & Others and batch.
17. It will be appropriate to quote the following paragraphs from
Jitendra Kumar Jaiswal (supra):
"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)."
18. Thus, the policy in force at the time of consideration of the
application of the petitioner for compassionate appointment is relevant
and as the said policy provides that 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, we are of the considered
opinion that the order of the learned Single Judge needs interference.
19. Accordingly, in view of the above discussion, the order of the
learned Single Judge dated 28.01.2022 is set aside. The writ appeal is
allowed. No cost.
Sd/- Sd/-
(Arup Kumar Goswami) (Parth Prateem Sahu)
CHIEF JUSTICE JUDGE
Hem
