Madhya Pradesh High Court

Sandeep Sharma vs State Of M.P. Through Higher ... on 9 September, 2021

Author: Subodh Abhyankar

                                       1                    W.P. No.12853/2020

           THE HIGH COURT OF MADHYA PRADESH
                         Writ Petition No.12853/2020
                (Sandeep Sharma Vs. State of M.P. and others)
Indore, Dated:09/09/2021
     Shri Amit Raj, learned counsel for the petitioner.

      Shri Ranjeet Sen, learned counsel for the State.

      This writ petition has been filed by the petitioner assailing the order

dated 22/02/2020 passed by the respondent No.4 Principal, BKSN,

Government College, Shajapur whereby the petitioner's representation for

compassionate appointment has been rejected on the ground that the

petitioner's brother Kamal Sharma is employed in CRPF, Bhopal.

Learned counsel for the petitioner has submitted that the issued

involved in this petition has already been dealt with by the Division Bench of

this Court in WA No.1074/2018 vide order dated 10/05/2019 in the case of

Devendra Singh Rathore Vs. State of M.P. and others and the case of the

petitioner is akin to that of Devendra Singh Rathore (supra). Thus, it is

submitted that this petition be also disposed of in terms of the said order only.

Learned counsel for the State, on the other hand has submitted that the

direction issued by the Division Bench would be applicable in the present case

also and the petition may be disposed of in terms of the aforesaid order.

On due consideration of submissions and perusal of the record, this

Court finds that the only issue before this Court is whether the petitioner can

claim the appointment on compassionate basis when his brother is employed

with the government and admittedly the aforesaid issue has already been

decided by the Division Bench of this Court in the case of Devendra Singh

Rathore (supra) which reads as under:-

"Shri Amit Raj, learned counsel for the appellant. Shri Abhinav Dhanodkar, learned Deputy Advocate General for the respondents/State.

The present Writ Appeal is arising out of the order dated 11.05.2018 passed by the learned Single Judge in the case of Devendra Singh Rathore v/s State of Madhya Pradesh & Others (W.P. No.22014/2017).

The facts of the case reveal that the appellant's father was a government servant, expired on 23.03.2010 while working as a Driver in the Department of Animal Husbandry. At that relevant point of time, the appellant was a minor and after attaining the age of 18 years i.e. on 02.08.2016, he submitted an application for grant of compassionate appointment and his application was turned down on the ground that his real brother is serving the Indian Army.

The respondents have rejected the claim of the appellant keeping in view Clause - 4.3 of the policy relating to policy for grant of compassionate appointment dated 29.09.2014.

The learned Single Judge has upheld the order passed by the State Government.

The appellant's contention is that the appellant's brother, who is serving the Indian Army, is not supporting the family at all and he is living independently. The appellant has further stated that his brother separated long back while his father was alive, and therefore, his case could not have been rejected on the ground that his real brother is serving the Indian Army.

Reliance has been placed upon a judgment delivered by Division Bench of this Court in the case of Ritesh Mule v/s The State of Madhya Pradesh & Others (W.P. No.1620/2018) decided on 25.04.2019.

In the aforesaid case, the Collector, therein, was directed to conduct an inquiry to find out whether the appellant's brother, who is in service, is supporting the family or not.

Learned Deputy Advocate General for the respondents/State has not disputed the aforesaid judgment delivered in the case Ritesh Mule (supra).

This Court in the case of Ritesh Mule (supra) has held as under:- "4. Learned counsel for the appellant has straight away drawn attention of this court towards the order passed by the Division Bench of this Court in the case of Ms.Karuna Bhatt Vs. State of MP and Another passed in WA No.866/2018 dated 28.02.2019, wherein in similar circumstances, this Court has quashed the order rejecting the claim for grant of compassionate appointment and the respondents therein have been directed to conduct a detailed enquiry, keeping in view the judgment delivered in the case of State of MP Vs. Mehmood Hussain Mansure delivered in writ appeal no.729/2013 dated 25.06.2014. The order passed in writ appeal no.729/2013 reads thus:-

"Heard counsel for the parties.

This appeal takes exception to the decision of the learned Single Judge dated 3rd October, 2012, in Writ Petition No.209/2009, whereby writ petition filed by the respondent was allowed and the order passed by the District Education Officer dated 22.1.2008 has been set aside. The learned Single

Judge has noted that the sole reason recorded in rejecting W.A. No.1074/2018 3 the application for grant of compassionate appointment was that the brother of the respondent was working as "Shiksha Karmi".

The learned Single Judge has adverted to the decision of the Division Bench of this Court which has held that "Shiksha Karmi" is not a Government servant.

Even if we were to agree with the submission of the appellants that working as 'Shiksha Karmi' in local body would be covered by the expression contained in the policy, namely, Shashkiya Seva or Corporation, Council, Commission etc. to include local bodies and where person is employed as "Shiksha Karmi", the fact as to whether the brother of the respondent was residing with the family or otherwise would still be a matter to be examined by the District Education Officer.Inasmuch as, if it is found as of fact that the brother of respondent was staying separately and not with the family of the respondent and other dependents of the deceased-employee and that they have no financial support from any other source, in that eventuality, the application of the respondent for grant of compassionate appointment would still be maintainable and ought to be considered on its own merits.

In this view of the matter, no interference is warranted with the operative order passed by the learned Single Judge. Disposed of accordingly."

5. In light of the aforesaid, once there was an averment made by the appellant, that is brother is living separately, though he is working as Samvida Shala Shikshak, a proper inquiry should have been done by the Collector, keeping in view the judgment of Mehmood Hussain Mansuri (Supra).

6. Resultanly, the impugned order dated 21.04.2017 and the order passed by the learned single judge dated 04.07.2018 are hereby quashed.

7. The Collector is directed to conduct enquiry and to give categorical finding i.e. whether the brother of the appellant is living separately or not, whether he is supporting from the family or not, whether he was dependent on the government servant or not. Thereafter, the Collector shall be free to pass an appropriate order in accordance with law.

8. The Collector while passing the order shall also keep the judgment passed by the Division Bench in the case of Arun Singh Bhadouriya Vs. State of MP reported in LAWS (MPH) 2009 (1) 66.

9. The aforesaid exercise shall be concluded within four months from the date of receipt of certified copy of this order."

In light of the aforesaid judgment, the order passed by the respondents dated 19.09.2016 and the order passed by the learned Single Judge dated 11.05.2018 are hereby set aside.

The Collector, Shajapur is directed to conduct an inquiry and to give a categorical finding i.e. whether the brother of the appellant is living separately or not, whether he is supporting the family or not,

whether the appellant is dependent upon his brother, who is serving the Indian Army, or not. The Collector after conducting the fact finding inquiry shall submit a report in the matter, and thereafter, the final order will be passed in respect of the application submitted by the appellant for grant of compassionate appointment.

The aforesaid exercise be concluded within a period of four months from the date of receipt of certified copy of this order.

With the aforesaid, the present Writ Appeal stands allowed."

In view of the aforesaid, the facts of the aforesaid writ appeal

would be applicable mutatis mutandis to the facts of the present petition also

and the aforesaid judgement would be binding on this Court as well.

As a result, the writ petition is hereby disposed of and the Collector,

Shajapur is directed to conduct an inquiry and to give a categorical finding i.e.

whether the brother of the petitioner is living separately or not, whether he is

supporting the family or not, whether the petitioner is dependent upon his

brother, who is serving in Govt. department, or not. The Collector after

conducting the fact finding inquiry shall submit a report in the matter, and

thereafter, the final order will be passed in respect of the application submitted