Smt. Laxmi Bai vs The State Of Madhya Pradesh
2022 Latest Caselaw 3651 MP

                                                                   1
                           IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR
                                                            BEFORE
                                              HON'BLE SHRI JUSTICE VIVEK AGARWAL
                                                       ON THE 15th OF MARCH, 2022

                                                 WRIT PETITION No. 9074 of 2017

                                 Between:-
                                 SMT. LAXMI BAI W/O CHANDRABHAN DAHIYA ,
                                 AGED ABOUT 35 YEARS, OCCUPATION: NIL GRAM
                                 BUDHARI PO. SINGULI THANA MAJHAGAVA TEH.
                                 SIHORA DISTT. JABALPUR (MADHYA PRADESH)

                                                                                                          .....PETITIONER
                                 (BY SHRI SUSHEEL KUMAR TRIPATHI, ADVOCATE)

                                 AND

                      1.         THE STATE OF MADHYA PRADESH THR.
                                 SECRETARY SWASTHYA MANTRALAYA VALLABH
                                 BHAWAN (MADHYA PRADESH)

                      2.         JILA AYUSH ADHIKARI INDIAN SYSTEMS OF
                                 MEDICINE     HOMEOPATHY(AYUSH) SARASWATI
                                 BHAWAN, J.K.HOSPITAL KE SAMNE, RIGHT TOWN
                                 (MADHYA PRADESH)

                                                                                                        .....RESPONDENTS
                                 (BY SHRI JITENDRA SHRIVASTAVA, PL FOR STATE)

                              T h is petition coming on for hearing this day, the court passed the
                      following:
                                                                       ORDER

Shri Susheel Kumar Tripathi, learned counsel for the petitioner.

Shri Jitendra Shrivastava, learned PL for the respondent/State.

Petitioner is aggrieved of decision dated 31/12/2016 of the authorities namely District Ayush Adhikari, Jabalpur in denying the benefit of compassionate appointment to the petitioner.

It is submitted that claim for grant of compassionate appointment is rejected by the said officer vide order dated 31/12/2016 as contained in Annexure P-16.

Learned counsel for the petitioner submits that this is second round of litigation. Petitioner lost her father on 27/10/2014 when he was still in service and was working as Aushadhalay Sevak. After death of her father she had applied for compassionate appointment in the prescribed format but that application was not considered. As a result petitioner approached this Court by filing W.P No. 11290/2016, which was disposed of by a coordinate Bench vide order dated 06/09/2016 directing the Signature SAN Not Verified authorities to consider and decide representation of the petitioner within 6 months from the date of Digitally signed by TARUN KUMAR communication of certified copy of that order.

SALUNKE Date: 2022.03.16 10:15:27 IST

It is submitted that thereafter respondents have without assigning any cogent reason rejected petitioner's representation. Learned counsel for the petitioner submits that petitioner's representation for grant of compassionate appointment is rejected on two grounds namely, she is a married daughter and that her brother is already working as a Samvidha Shala Shikshak Grade-III at government primary school, Khamariya (Kelwari) District Katni, therefore in terms of the clause 4.1, 2.3, and 2.4 of the

policy dated 29th September, 2014, petitioner is held to be not entitled for grant of compassionate appointment.

Reliance is placed on the judgment of the Full Bench of this Court in case of Meenakshi Dubey Vs. M.P Poorva Kshetra Vidyut Vitran Co. Ltd. and other (W.A No. 756/2019) decided on 02/03/2020. Referring to this judgment attention is drawn to paragraph 19 wherein the Full Bench of this Court referring to judgment of the Supreme Court in Secretary, Ministry of Defence Vs. Babita Puniya & others, 2020 SCC Online SC 200 has held that Babita Puniya (supra) is a very important step to ensure "Gender Justice". By referring to Clause 2.4 it is held that the Government partially recognized the right of consideration of married daughter but such consideration was confined to such daughters who have no brothers. Clause 2.2, as noticed, gives option to the living spouse of deceased government servant to nominate son or unmarried daughter. There is no condition imposed while considering a son relating to marital status. Adjective/condition of "unmarried" is affixed for the daughter. This condition is without there being any justification and; therefore, arbitrary and discriminatory in nature.". Accordingly it is held that even married daughters are entitled for compassionate appointment.

Reliance is also placed on the judgment of the High Court of Chhatisgarh at Bilaspur in W.P.(S) 33665/2021 (Narendra Sahu Vs. State of Chhatisgarh) decided on 16/07/2021. Placing reliance on paragraphs no. 11 and 12 of the said judgment, it is pointed out that even if the elder brother of the petitioner is in government employment and sister of the petitioner was married and staying at her matrimonial home, what needs to be verified is whether the said persons can be brought within the ambit of dependent. Whether the said persons can be compelled to take care of the petitioner and his widowed mother and grand father, particularly when they have their own family to take care of and they have been living separately altogether. Under these facts and circumstances judgment of the Chhatisgarh High Court was delivered.

Shri Jitendra Shrivastava, learned Panel Lawyer for State opposes the prayer and submits that in terms of the policy impugned order has been passed. It is further submitted that State Government took into consideration a fact that widow of the deceased will get family pension thus, the element to financial penury or dependency is not there, which are of the paramount consideration for grant of compassionate appointment.

After hearing learned counsel for the parties and on perusal of the record, it is evident that there is no

dispute that petitioner is a married woman. There is also no dispute that petitioner has been nominated by her mother for grant of compassionate appointment. It is also not in dispute that her brother is working as Samvidha Shala Shikshak Grade-III. However there is no material on record that brother of the petitioner has refused to maintain her mother ie. widow of the deceased employee. There is no material on record to substantiate that the petitioner was fully dependent on the deceased employee even after her marriage for sustainence.

In view of law laid down by the Full Bench of this Court in Meenakshi Dubey Vs. M.P Poorva Kshetra Vidyut Vitran Co. Ltd. and other (W.A No. 756/2019) facts of the present case are examined then it is evident that in para 19 the larger Bench has placed emphasis on the issue of dependency. It has rendered that judgment in the context of the discrimination between a married

woman having brothers and married woman having no brother. In fact when case of the claimant/petitioner is examined on the touch stone of penury and dependency then it is evident that since widow of the deceased employee will get family pension as admitted by learned counsel for the petitioner also, element of penury of widow is not established. As far as dependency is concerned, there is no material on record to show that petitioner was fully dependent on the deceased employee, despite her marriage.

In fact learned counsel for the petitioner has admitted during course of his argument that husband of the petitioner is not keeping good health, therefore she be granted compassionate appointment.

In the light of law laid down by the Supreme Court in the case of Director of Treasuries in Karnataka & another Vs. Somyashree, 2021 SCC Online SC 704, it is held that unless rules provide for, only "unmarried daughter" and "Widowed daughter" who are dependent upon deceased Govt. servant at the time of his death and living with him can be said to be 'dependant' on a deceased government servant.

Compassionate appointment is not an alternative mode of recruitment. Similar issue was considered by a Division Bench of Allahabad High Court in the case of State of U.P & another Vs. Madhavi Mishr and two others in Special Appeal No. 223/2021, wherein it is held that compassionate appointment is an exception to the general rule; that no aspirant has a right to compassionate appointment; the appointment to any public post in service of the State has to be made on the basis of the principle in accordance with Article 14 and 16 of the Constitution of India.

In view of absence of penury and dependency, compassionate appointment cannot be claimed as a matter of right in routine course. Thus when petitioner's case is tested on the touch stone of the judgments of Supreme Court, I am of the opinion that Full Bench judgment of this Court and that of Chhatisgarh High court are distinguishable on their own facts and distinguishable on the facts and circumstances of the present case, therefore in absence of the element of penury and there being no documentary evidence showing dependency of the petitioner on her deceased father, this is not a fit

case to call for interference in the impugned order. Thus petition fails and is dismissed.

(VIVEK AGARWAL) JUDGE tarun