Madhya Pradesh High Court
Smt. Manila Shrivastava vs The State Of Madhya Pradesh on 5 August, 2024
1 WP-12473-2016
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK JAIN
ON THE 5 th OF AUGUST, 2024
WRIT PETITION No. 12473 of 2016
SMT. MANILA SHRIVASTAVA
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Sanjay Agrawal - Senior Advocate with Shri Yash Soni - Advocate for the
Petitioner.
Shri Amit Garg - Panel Lawyer for the Respondent/State.
ORDER
The present petition has been filed challenging the order Annexure P-13
dated 13.01.2016 whereby the Collector, District Tikamgarh directed the
Tahsildar for termination of services of the petitioner and also consequently, the
order issued by the Collector, District Chhattarpur vide Annexure P-18 dated
20.07.2016 terminated the services of the petitioner.
2. Learned counsel for the petitioner has submitted that the petitioner was
given compassionate appointment on account of death of her mother who had died
in harness on 22.07.2007. It is contended that the petitioner was granted
compassionate appointment by Annexure P-10 dated 18.09.2008 on the post of
Assistant Grade III. However, later on, by the order Annexure P-13, the order has
been set aside and the services of the petitioner have been terminated on the
ground that the brother of the petitioner was in Government service and petitioner
has obtained job by suppression of material facts.
3. Learned counsel for the petitioner has submitted by placing reliance on
application form for compassionate appointment placed on record as Annexure P-
2 WP-12473-2016
8 that on the first page of Annexure P-6, the date of receipt of application is
mentioned as 20.11.2007 and the Annexure P-6 is the copy of application form of
petitioner. It is further contended that the said form was later on forwarded by the
head of the institution on 14.01.2008 which is evident from perusal of Annexure
P-8.
4. Learned counsel for the petitioner further submits that the brother of the
petitioner was appointed in his own right by appearing in a separate selection
process vide Order Annexure P-19 dated 13.12.2007. It is contended that the said
appointment is not related to the compassionate appointment of the petitioner and
the petitioner has submitted application for compassionate appointment on
20.11.2007 and thereafter the brother of petitioner was appointed vide Annexure
P-19 as a contractual teacher and not a regular appointment. Thus, the case of the
petitioner does not fall within the mischief of disqualification as per the policy for
compassionate appointment placed on record as Annexure P-2 dated 22.01.2007.
5. Learned counsel for the petitioner further submits that the brother of the
petitioner was not living alongwith brother of petitioner and it was a matter of
enquiry whether the brother of petitioner was supporting the petitioner and
whether the petitioner was staying with her brother and other related issues were
required to be established however, no enquiry has been carried out by the
respondents and the petitioner did not have occasion to establish all these facts.
6. Per contra, learned counsel for the State submits that the petitioner was
disqualified as per clause 4.1 of the policy for compassionate appointment and
therefore, since the brother of petitioner was in Government service on the date of
issue of order in favour of petitioner, the petitioner was clearly disqualified.
7. Heard.
SINGH 8. In the present case, the application for compassionate appointment has
3 WP-12473-2016
been placed on record as Annexure P-6 and P-8 wherein undisputedly, the column
meant for disclosure of the aspect of employment of other members of family in
Government services has been left blank.
9. Learned counsel for the petitioner has relied on the affidavit submitted by
the brother of petitioner dated 03.09.2007 wherein the brother of petitioner has
clearly disclosed that he has no objection to grant of benefit of compassionate
appointment to his sister.
10. The petitioner has made a specific averment in para 5.7 of the petitioner
that the application for compassionate appointment was submitted on 20.11.2007
and respondents have filed their reply but they have not replied to averment in
clause 5.7 of the petition. Thus, the aforesaid averment of the petitioner has gone
uncontested.
11. This Court issued notices in the petition and it would mean that the
respondents have to reply to all the contentions made in the petition. Even if they
have not filed para-wise reply but even in the reply which has been filed, no
denial of the averments of the petitioner that the application for compassionate
appointment was submitted on 20.11.2007 has been made. Thus, this Court has no
material on record to disbelieve the contention of the petitioner that application for
compassionate appointment was submitted on 20.11.2007 and on that date, the
brother of the petitioner had not been appointed and the appointment order in
favour of brother is 13.12.2007 which is subsequent. Thus, the petitioner cannot
be said to have suppressed the fact of employment of brother.
12. A perusal of the documents placed on record indicates that the
disclosure as per para 5.1 of the policy relates to any member of family of
deceased
Government service or Corporation, Board, Commissioner, etc. of the
4 WP-12473-2016
Government.
13. In the present case, the brother of the petitioner was appointed on
contractual basis on a fixed salary of Rs.4,500/- per month for a period of three
years with renewal clause. The order of contractual appointment is placed on
record as Annexure P-19.
14. It may be the case that subsequently, the brother of petitioner may have
continued in or even regularized in service, however, the appointment that the
brother of petitioner is having on the date of employment of the petitioner was
only contractual appointment as Sanvida Shala Shikshak that too on a fixed salary
of Rs.4,500/- per month as contractual appointment and not a regular
employment.
15. The aforesaid aspect was initially dealt with by a Division Bench of this
Court in the case of --reported in 2016 3 MPLJ 82 and it was held that such clause
of the policy as binding. However, such judgment was distinguished by another
Division Bench in W.A.No.157/2019 GAD Vs. Prem Singh and it was held by the
Division Bench that son, who is in employment constitutes his own family and he
had ceased to be a member of the family. It is further held that in the earning of a
working son, his siblings have no claim and the Division Bench held as under:-
"5. The controversy involved in this appeal is in a very narrow
compass. As per the policy after the death of a Government employee,
his wife shall be entitled to the compassionate appointment and if she is
not having qualifications or is not interested in the compassionate
appointment, she can nominate her son or unmarried daughter for said
appointment. If the deceased is having a daughter only then surviving
husband or wife can nominate a married daughter also for
compassionate appointment, even the stepson and stepdaughter are also
entitled to claim a compassionate appointment. In case, a government
employee dies before marriage then his brother and unmarried sister
can also claim compassionate appointment. Clause 4 of the policy
Signed by: KRISHNA provides the disqualifications for compassionate appointments. In the
present clause, clause 4.1 applies which is reproduced below:
Signing time: 15-08-2024
6.52.02 PM
5 WP-12473-2016
4.1 दवंगत शासक य सेवक के प रवार का कोई भी सद य य द पूव सेे
शासक य सेवा अथवा िनगम, म डल, प रषद आयोग आद म
िनयिमत सेवा म िनयो जत हो, (आवेदक के प रवार का कोई सद य
िनयिमत सेवा म िनयो जत न होने का शपथ प तुत करना
होगा)।
The language of this clause is very clear as it says that if any member
of the family of the deceased Government employee is already in
regular service, then other dependents shall not be eligible to claim
compassionate appointments. The applicant shall submit an affidavit
that no other family member is in employment. The Division Bench of
this Court in case Prajesh Vs. State of M.P. has considered clause 4.1
of the policy and held that a brother who is living separately is also
come under the definition of a member of the family, therefore, merely
a member of the family of the deceased servant, who is in employment
in government service or corporation or board, council or commission
has started living separately, he cannot be excluded from the class
under clause 4.1 of the policy. The Writ Court has considered the
nature of employment in the Indian Army and held that it cannot be
equated with regular services in the Government as well as Central
Government, hence, the case of the petitioner deserves to be considered
on merit ignoring clause 4.1 of the policy.
7. As per clause 2.1. of the policy in question only wife and husband
are treated dependent as the case may be on a government employee
and they have first right to claim the compassionate appointment, in
case wife or husband as the case may be is ineligible then he /she can
nominate son or unmarried daughter. The nomination of a son who
should be unemployed and not have any source of income, therefore,
survival either wife or husband cannot nominate son who is already in
employment. The son who is in employment is not entitled to claim a
compassionate appointment. Son means who is not in employment.
The son who is already in regular employment constitute his own
family hence he is seized to be a member of the family of the deceased
employee. In the family of a working son, his brother has no claim.
Hence, we are not inclined to interfere with the impugned order. The
order passed by the Writ Court be complied with within a period of 60
from today."
16. In Division Bench of this Court in Writ Appeal No.13/20 has held that
the disqualification of compassionate appointment in terms of clause 4.1 of the
policy
Signature cannot be inferred in the case of employment of a brother because it
Not Verified
Signed by: KRISHNA
SINGH
Signing time: 15-08-2024
6.52.02 PM
6 WP-12473-2016
involves debatable issues whether the brother is supporting other siblings or not or
whether he is staying with his sibling. The Division Bench has held as under:-
"On considering the order passed by the learned Single Judge, we are of
the considered view that an appropriate interference is called for.
Undisputedly, the brother of the petitioner has secured an employment
on 30.08.2017 i.e. one and a half months after the death of their father.
Undisputedly, the said appointment is not based on compassionate
ground. It is an appointment which the brother of writ-petitioner has
earned on his own merit. Therefore, a question would arise whether the
petitioner namely the daughter of the deceased was staying with her
brother and whether the brother was taking care of her or not and other
related issues. In case a situation would arise whether the petitioner is
not staying with her brother then the question of penury would have to
be considered by the authorities. Therefore, these are matters of facts
which can only be brought about after an appropriate inquiry is held.
Merely, rejecting the plea of the writ petitioner on the ground that her
brother is in employment, in our considered view, may not be correct.
Therefore, we hereby direct the respondents to conduct an inquiry with
regard to penury of the petitioner and as to whether her brother who
had secured the employment is taking care of the family or not and
other related issues. It is only when such an inquiry is held, the
respondents would reconsider the case of the appellant/writ petitioner
for appointment on compassionate ground."
17. In the present case, no case is made out for remanding the case for
carrying out enquiry on the aspect of the brother supporting the petitioner or not or
staying with the petitioner or not. This is a case in which this Court has already
reached to a conclusion because the brother was not in a regular Govt. Service or
in any board, corporation, etc. of the Govt. but he was only a contract employee
with Rs.4,500/- as fixed pay contract employee on the date when the petitioner
was appointed by the respondents.
18. This aspect is also considered by the Division Bench in the case of
Prem Singh (Supra). Consequently, the action of the respondents in terminating
the services of petitioner by Order Annexure P-13 cannot be given stamp of
approval.
19. The petition deserves to be allowed and is hereby allowed. The orders
7 WP-12473-2016
Annexure P-13 and P-18 are quashed. The petitioner is already in service on the
strength of the interim order dated 27.07.2016, hence, no orders on back wages
are required to be passed.
(VIVEK JAIN)
JUDGE
veni
