Vinesh Yadav vs State Of Chhattisgarh
2022 Latest Caselaw 5865 Chatt

                                           1


                                                                            NAFR
         HIGH COURT OF CHHATTISGARH, BILASPUR
                          W.P.(S) No. 2176 of 2020
Vinesh Yadav, S/o. Late Shri Pradeep Yadav, aged about 27 years,
R/o. Near Gurihari Pahari Chowk, C.S.E.B Gate Near Pani Tanki,
Street No.2, P.S. Raipur, Tahsil and District Raipur Chhattisgarh.
                                                                    ---- Petitioner
                                     Versus
1.    State of Chhattisgarh, through : its Secretary, Woman and Child
      Development Department, Mantralaya, Mahanadi Bhawan Naya
      Raipur, Atal Nagar, District Raipur Chhattisgarh
2.    Commissioner Woman and Child Development Department,
      Mantralaya, Mahanadi Bhawan Naya Raipur, Atal Nagar, District
      Raipur Chhattisgarh.
3.    Director, Woman and Child Development, Directorate, Indrawati
      Bhawan New Raipur, Atal Nagar, District Raipur Chhattisgarh.
                                                                 ---- Respondents


For Petitioner                      : Mr. Amit Soni, Advocate
For Respondents-State               : Mr. Sandeep Dubey, Dy.A.G.


                 Hon'ble Shri Justice Parth Prateem Sahu
                                 Order On Board

19/09/2022

1.    Challenge      in   this     petition      is   to   the   impugned   letter/

      communication dated 24.12.2019, issued by respondent No.2,

      whereby, claim of petitioner for compassionate appointment has

      been rejected.

2.    Facts

relevant for disposal of this petition are that father of

petitioner was working as Class-IV employee with respondents

department, who died in harness on 15.03.2016. Petitioner

submitted application for compassionate appointment on

14.06.2016 in terms of circular of State Government in this

regard. His application came to be rejected on the ground that

mother of petitioner is working as Peon and is also a government

servant.

3. Mr. Amit Soni, learned counsel appearing on behalf of petitioner

would submit that respondent No.3 rejected the application of

petitioner for compassionate appointment considering new

circular issued by State Government, which is subsequent to the

date of death of deceased government servant and submission

of application. Father of petitioner died in harness on 15.03.2016.

Petitioner submitted application for his appointment on

compassionate basis on 14.06.2016 i.e. prior to the date of

issuance of new circular dated 29.08.2016, therefore, case of

petitioner is required to be considered in the light of circular

issued by State Government in this regard applicable on the date

of death of government servant. He submits that on the said

date, circular dated 14.06.2013 was in existence, in which there

is no such clause of debarring any of the family member of

deceased employee for getting compassionate appointment even

if any other family member is already in government employment.

As respondent No.3 has considered the claim of petitioner based

on the subsequent circular issued by the State Government on

29.08.2016 erroneously, the impugned letter of communication

dated 24.12.2019 rejecting the claim of petitioner for his

compassionate appointment, be quashed and respondents be

directed to give appointment to petitioner on compassionate

basis.

4. Mr. Sandeep Dubey, learned State counsel would submit that

there is no dispute on the date of sad demise of father of

petitioner, as also the date of submissions of application. He

contended that on the date of consideration of application of

petitioner, new circular dated 29.08.2016 came into existence

and according to Clause -6-A of the circular dated 29.08.2016, if

in the family of deceased government servant any other family

member is already in government employment, then any other

family member will not be entitled for compassionate

appointment. Copy of circular is filed along with reply as

(Annexure R-2). He contended that in affidavit (Annexure R-1)

submitted by Smt. Puni Yadav, mother of petitioner, it is

specifically stated that, she is working as Peon in Women & Child

Development Department, Raipur and hence, the claim of

petitioner for compassionate appointment has rightly been

rejected. It is also submitted that this case is squarely covered by

judgment passed by Division Bench of this Court in Purendra

Kumar Sinha Vs. State of C.G., in W.P.(S) No. 6689 of 2018

and other connected matters on 06.09.2022.

5. I have heard learned counsel for parties and also perused the

documents placed on record.

6. It is settled law that compassionate appointment is not a source

of recruitment and also not to provide employment by

succession but as per policy of State Government

compassionate appointment is provided to one of family member

to meet the immediate need/necessity arrived at, due to sudden

demise of sole bread earner. Compassionate appointment can

not be claimed as a matter of right. The pleadings made by

respondent/State in their reply that petitioner has suppressed the

fact that his mother is in government employment in the

application Form (Annexure P-3), in the column "whether the

dependent is employed under government or semi government",

has been left out, which is not controverted by petitioner by

submitting rejoinder to the reply. Along with reply respondents

have placed on record affidavit executed by Smt. Puni Yadav

(mother of petitioner), wherein at Para-3 made statement that

she is working on the post of Peon in Woman and Child

Development Department, Raipur. Women and Child

Development Department is a government department and

therefore, there is no reason to disbelieve the pleadings of

respondents that mother of petitioner is employed in government

department. Employment of mother of petitioner is not denied by

petitioner but it is submitted that there is application of wrong

circular.

7. So far as the submissions made by learned counsel for petitioner

that the application submitted by petitioner on 14.06.2016 is to be

considered in the light of circular prevailing on the date of

submission of application is concerned, Hon'ble Supreme Court

in case of N.C. Santosh Vs. State of Karnataka & Others,

reported in (2020) 7 SCC 617 at paragraphs 14, 15, 16, 17 & 19

observed as under :-

"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."

8. Considering the above decision of Hon'ble Supreme Court,

Division Bench of this Court while taking into consideration the

identical issue in W.P.(S) No. 2887 of 2017, has held at Para 67

and 68 as under :-

"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)."

9. In view of above decision of Hon'ble Supreme Court in case of

N.C. Santosh (supra) as also the decision of Division Bench of

this Court in case of Purendra Kumar Sinha, in W.P.(S) No. 6689

of 2018 and other connected matters (supra), I do not find any

error in decision of respondents department considering the

application for grant of compassionate appointment of petitioner

in terms of circular dated 29.08.2016, which was existing on the

date of consideration and rejecting it on the ground that mother of

petitioner is in government employment.

10. For the forgoing discussions made here-in-above,I do not find

any merit in the claim of petitioner, the petition being devoid of

any substance, it is liable to be and is hereby dismissed.

Sd/-

(Parth Prateem Sahu) Judge Balram