Bsant Toppo vs The State Of Jharkhand
2023 Latest Caselaw 3224 Jhar

                                     1


       IN THE HIGH COURT OF JHARKHAND AT RANCHI
                   L.P. A. No. 193 of 2022
Bsant Toppo, aged about 32 years, Son of Late Kisnath Toppo, Resident of
Village-Koda, P.O.-Govindpur, P.S- Albert Ekka Jari, Dist-Gumla (Jharkhand)
                                             --- --- Petitioner/Appellant
                                Versus

1.The State of Jharkhand
2.The Director General of Police (D.G.P.), Jharkhand, Police Headquarters, P.O.
  & P.S.-Dhurwa, Dist.-Ranchi.
3.The Senior Superintendent of Police, Ranchi, P.O. & P.S.-Ranchi, Dist.-Ranchi

                                                 --- --- Respondents/Respondents


                                         .......

CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
        HON'BLE MR. JUSTICE NAVNEET KUMAR

For the Appellant          : Mrs. I. Sen Choudhary, Advocate
                           : Mr. Anand Kumar Sinha, Advocate
                           : Mr. Manoj Kumar Ram, Advocate
For the Respondents       : Mr. Mohan Kumar Dubey, A.C. to A.G.

Order No.07/ Dated 29th August, 2023

      Per Sujit Narayan Prasad, J.

The instant appeal preferred under Clause 10 of the Letters Patent, is directed against the order/judgment dated 02.03.2022 passed in W.P.(S) No. 2737 of 2019 whereby and whereunder the learned Single Judge of this Court has refused to pass positive direction upon the respondents for consideration of the case of the appellant/ writ petitioner for his appointment on compassionate ground on account of death of his own brother, who had died in an extremist attack on 30.06.2008 while working as Constable.

2. Brief facts of the case as per the pleadings made in the writ proceeding, which are required to be enumerated herein, read as under :- The petitioner's elder brother namely Egnasiyus Toppo was appointed as Police-2384, Ranchi District Force on 08.10.2005 and was posted under Tamar Police Station and subsequently he discharged his duty with full satisfaction of the department but unfortunately during service tenure he got martyred on 30.06.2008 in a terrorist/Naxal attack near Pundidiri

Karkari river, under Tamar Police Station and in this regard a case being Tamar P.S. Case No.62 of 2008 dated 30.06.2008 has been instituted under Sections 147/148/149/307/302/120 (B) of the Indian Penal Code, Section 17 of the Criminal Law (Amendment) Act, Sections 3/4 of the U.P. Act and under Section 27 of the Arms Act.

2(i). The above mentioned facts are evident from the Service-Book Record, Death Certificate dated 02.08.2008 as well as the memo no.3560/Sa.Sha. dated 19.07.2008 issued from the office of the Senior Superintendent of Police, Ranchi by which Rs.19, 68, 624/- (Rupees nineteen lacs sixty-eight thousand six hundred twenty-four) has been released to his legal dependent. After the death of the deceased employee, vide District Order No.2875/08 contained in memo no.3621/Sa.Sha. dated 22.07.2008 has been issued by the Senior Superintendent of Police, Ranchi, Rs.10,00,000/- (Rupees ten lace) has been ordered to be released to the valid dependent of the deceased employee. Thereafter vide memo no.3739/ Sa.Sha. dated 24.07.2008 issued through the office of the Senior Superintendent of Police, Ranchi for payment of amount of familiar, concession, Group Insurance, salary etc. were approved.

2(ii). Thereafter, the widow of the Late Egnasiyus Toppo namely Smt. Anjana Toppo has submitted an application before the Senior Superintendent of Police, Ranchi on 17.06.2013 stating therein that on her own will and desire she wants that her Dewar (writ petitioner) be appointed on compassionate basis in place of her deceased husband because of the fact that the petitioner is looking after her and the entire family members after the death of her husband and she is also going to marry with her Dewar (writ petitioner).

2(iii). The Circle officer, Dumri has issued Caste Certificate on 29.06.2012, Familiar Membership Certificate and Genealogy Certificate on 31.07.2013 in favour of the writ petitioner. Thereafter he has submitted his entire educational qualification certificates i.e. Matric, Intermediate pass from Jharkhand Academic Council, Ranchi and Graduation from St. Xavier's College, Ranchi University, Ranchi in the concerned department to do needful with regard to the compassionate

appointment.

2(iv). Thereafter vide memo no.2994/Ra.Ka. dated 12.04.2014 issued from the office of the Senior Superintendent of Police, Ranchi, the claim of the petitioner for compassionate appointment has been denied in the light of Sankalp No.2597 dated 09.06.2011 issued from the State Government.

2(v). Thereafter, the mother of the writ petitioner has submitted representations before the Senior Superintendent of Police, Ranchi on 21.11.2015 stating therein that Smt. Anjana Toppo, widow of deceased employee, who had filed application dated 17.06.2013 has fled away from her house and is traceless, hence compassionate appointment may be provided to her son Basant Toppo -writ petitioner and the payment of financial benefits and Pension etc. which are still lying with the department be paid to her.

2(vi). Thereafter vide Memo no.8291/Ra.Ka. dated 12.10.2018, office of the Senior Superintendent of Police, Ranchi has invited Smt. Anjana Toppo, widow of the deceased Late Egnasiyus Toppo and her entire family members for participating in "Sansmaran Diwas" on 21.10.2018 at New Police Centre, Kanke Road, Ranchi for dignifying the dependents of the martyr employee. The concerned department has not considered the representations of the mother of the writ petitioner and vide letter no.1793/Ra.Ka. Dated 24.02.2019, the office of the Senior Superintendent of Police, Ranchi has denied the compassionate appointment to the writ petitioner.

2(vii). Being aggrieved, the writ petitioner filed W.P.(S) No. 2737 of 2019, which was dismissed by the learned Writ Court, whereby and whereunder the learned Single Judge has refused to issue direction upon the respondents to consider the prayer of the petitioner to compassionate appointment and hence this appeal.

3. It appears from the facts narrated hereinabove, based upon the pleadings that the appellant, who happened to be the brother of the deceased, who was working as constable and died in an extremist attach on 30.06.2008. The widow of the decease simply submitted her application for consideration of case of her devar/ writ petitioner for

appointment on compassionate ground but it was denied vide order bearing no. 2994/Ra.Ka. dated 12.04.2014 in the light of resolution no. No.2597 dated 09.06.2011. It further appears that there after the mother of the writ petitioner also requested the respondents to give appointment to the writ petitioner/ appellant, but the same has also been rejected vide order dated 24.02.2019. Appellant thereafter approached this Court in W.P.(S) No. 2737 of 2019, but the same has also been dismissed and hence the present appeal.

4. Mr. Manoj Kumar Ram, learned counsel for the appellant / writ petitioner has submitted that the rejection of the claim of the appellant for appointment on compassionate ground vide communication dated 24.02.2019 is arbitrary, improper and unjustified and without taking into consideration that his brother has died in the extremist attack while rendering service. Further, contention has been made that the appellant is entitled as per the scheme for appointment on compassionate ground but the aforesaid aspect of the matter has not been appreciated by the learned Single Judge, hence the instant appeal.

5. While on the other hand, learned counsel for the respondent- State Mr. Mohan Kumar Dubey, A.C to A.G. has submitted that the claim for grant of appointment on compassionate ground on account of death of the deceased employee Late Egnasiyus Toppo was taken into consideration by passing an order on the application filed by the widow of the deceased vide order dated 12.04.2014 by rejecting the same in the light of the resolution no. No.2597 dated 09.06.2011. It has been contended that the decision of 12.04.2014 has never been challenged, rather, the mother of the writ petitioner, subsequent to the aforesaid rejection i.e., after a lapse of 5 years, has again requested by making application for appointment on compassionate ground in favour of the present appellant but the same was also rejected on 24.02.2019 by making reference to the earlier order of rejection dated 12.04.2014.

6. In the aforesaid premises, it is submitted by learned counsel for the respondent that once the claim of the widow of the deceased employee for appointment on compassionate ground was rejected on 12.04.2014, which has never been challenged, no subsequent application

on the same issue was considered to be fit by the respondents and accordingly the same was also negated vide order dated 24.02.2019 by making reference to the denial of the same vide order dated 12.04.2014. Hence, the learned Single Judge, considering the aforesaid fact coupled with the fact that appointment on compassionate ground cannot be claimed as a matter of right, rejected the same and hence the order passed by the learned Single Judge does not suffer from any error.

7. It is further submitted that all the benefits, as admissible , had been given in favour of the widow of the deceased employee and in order to substantiate the same the communication dated 28.08.2023 issued by the Senior Superintendent of Police has been placed before this Court. It has further been submitted that the widow is entitled for family pension, as per the admissibility but she has not appeared in the office. Submission has also been made that if the widow is willing to appear in the office, the issue of family pension will be considered as per the admissibility.

8. We have heard learned counsel for the parties, perused the documents available on record as also the order passed by the learned Single Judge in W.P.(S) No.2737 of 2019.

9. The admitted fact herein is that the brother of the appellant died in an extremist attack on 30.06.2008. The widow had made an application for consideration of case of her 'dever' for appointment on compassionate ground but the same was rejected vide order dated 12.04.2014 in the light of the resolution dated 09.06.2011.

10. The resolution no. 2597 dated 09.06.2011 stipulates to provide appointment to the widow but in the meantime the widow has solemnized marriage with the co-brother of the deceased employee, who is the appellant herein. Based upon the same, the claim was rejected considering the status of the widow, who has solemnized marriage with the younger brother of the deceased.

11. Subsequent to their marriage, the mother of the deceased has made an application and appointment was sought in favour of her son who now has solemnized marriage with the wife of the deceased Constable. The authorities on consideration of the decision already taken

in the year 2014 vide order dated 12.04.2014, has negated such claim by making reference to the earlier order dated 12.04.2014 vide communication dated 24.02.2019.

12. Thus, here the admitted fact is that the earlier decision dated 12.04.2014 whereby and whereunder the claim for compassionate appointment was rejected has not been challenged, rather, a fresh application was filed on behalf of the mother of the appellant to give appointment in favour of another son i.e., the appellant who has solemnized marriage with the wife of the deceased constable.

13. The question for considering the prayer for compassionate appointment, since has already been dealt with by negating such claim vide order dated 12.04.2014, which has never been challenged, therefore, according to the considered view of this Court, once accepting the earlier negative order, making subsequent prayer in favour of other is not permissible, since, the issue with respect to the compassionate ground is to be considered regarding the entitlement of the person for appointment on compassionate ground and once it is rejected the other dependent will have no occasion again to insist to provide appointment on compassionate ground due to the reason that appointment on compassionate ground cannot be claimed as a matter of right in view of the Article 14 and 16 of the Constitution of India.

14. The learned Single Judge has considered the aforesaid facts coupled with the fact where the dependent of deceased employee survived for long period i.e., eleven years by placing reliance upon judgment of the Hon'ble Apex Court in the case of General Manager, State Bank of India & Ors. Vrs. Anju Jain [(2008) 8 SCC 475]; Steel Authority of India Ltd. Vs. Madhusudan Das & Ors.[(2008) 15 SCC 560]; Canara Bank & Anr. Vs. M. Mahesh Kumar [(2015) 7 SCC 412] and Umesh Kumar Nagpal Vs. State of Haryana[(1994) 4 SCC 138 has dismissed the writ petition, which, according to our considered view requires no interference.

15. Accordingly, the instant appeal fails and is dismissed.

16. However, so far as the benefit as per the policy decision of the State Government is concerned, as per the communication dated

28.8.2023, the same has been disbursed in favour of the wife of the deceased employee.

17. So far as family pension is concerned, which is admissible as per the Respondent State but it is the legal claimant who is not turning up before the authority. Hence the same has not been finalized.

18. This Court in view thereof and taking the fact into consideration that the family pension is admissible as per the State of Jharkhand is leaving it open to the legal claimant to approach the authority.

19. If such claim will be made, the authority will take a decision strictly in pursuant to the policy decision without any unnecessary delay.

20. The instant appeal is disposed of with the aforesaid observation.

(Sujit Narayan Prasad, J.)

(Navneet Kumar, J.) A.Mohanty AFR