Harish Chandra Parmar vs School Education Department

Prakash Shrivastava, J.—By this writ petition the petitioner has challenged the order dated 17.10.2014 (Annexure P/12), by which the petitioner,s application for compassionate appointment has been rejected on the ground that another son of the deceased employee is already in Government service, therefore, the petitioner is not eligible for compassionate appointment.

In brief, the case of the petitioner is that his mother was working as Assistant Teacher in a Govt. Primary School and died in harness on 11.5.2013, therefore, the petitioner had made an application for compassionate appointment. The petitioner''s brother Vikram Singh Parmar had also given the affidavit that he was working as Sainik in SAF and is in Government service but is living separately with his wife and has no connection with the other members of the family. By the impugned order dated 17.10.2014 the application for compassionate appointment has been rejected.

Learned counsel appearing for the petitioner submits that since the petitioner''s brother is living separately and has no connection with the other family members of the deceased employee, therefore, the petitioner''s application for compassionate appointment cannot be rejected on that ground. In this regard he has placed reliance upon the order passed by the coordinate bench of this Court dated 15.1.2014 in W.P. No.12017/2012 and the judgment of this Court in the matter of Prakash Parmar v. Govt. of M.P. reported in 2012 MPLJ (4) 539. As against this, learned counsel for the respondents submits that since one of the family member of the deceased employee is already in Government service, therefore, compassionate appointment cannot be granted to the petitioner.

Having heard the learned counsel for the parties and on perusal of the record, it is noticed that the petitioner is claiming compassionate appointment in terms of the Circular dated 18.8.2008 and Clause 4.1 of the said circular in clear terms provides that if any of the eligible family member of the deceased employee is already in Government service or service of the Corporation, Board, Parishad, Commission etc., then the other member-applicant will be ineligible for compassionate appointment.

The aforesaid clause 4.1 of the circular dated 18.8.2008 has already been considered by the Division Bench in the matter of Prajesh Shrivastava v. State of M.P. and others reported in (2016) 3 MPLJ 88 while taking the view that if one of the family member eligible for compassionate appointment is in the employment in government service or Corporation, Board etc., then any other member of the family though eligible will not be entitled for compassionate appointment. The Division Bench after examining the entire matter in detail has held as under :-

"26. Therefore, merely because a member of the family of Government servant, who is in the employment in government service, or corporation, board, council, commission etc., has started residing separately, he cannot be excluded from the class under Clause 4.1 of the Policy.

There are other reasons why we are of the opinion that the family member in employment but living separately has to be treated as a member of family of deceased Government servant.

Trite it is that appointment to public service is to be on merit in accordance with the Rules furthering the principle enunciated in Article 16 of the Constitution of India, which mandates that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. Exception, however, has been carved out in favour of dependents of employees who die in harness and leaving their family in penury and without any means of livelihood. For that, State Government has evolved a policy for appointment on compassionate ground with an object to provide immediate relief to such bereaved family.

While dwelling upon this aspect, it has been held by the Supreme Court in Haryana State Electricity Board v. Hakim Singh (1997) 8 SCC 85—

"8. The rule of appointments to public service is that they should be on merits and through open invitation. It is the normal route through which one can get into a public employment. However, as every rule can have exceptions, there are a few exceptions to the said rule also which have been evolved to meet certain contingencies. As per one such exception belief is provided to the bereaved family of a deceased employee by accommodating one of his dependents in a vacancy. The object is to give succor to the family which has been suddenly plunged into penury due to the untimely death of its sole bread-winner. This Court has observed time and again that the object of providing such ameliorating relief should not be taken as opening an alternative mode of recruitment to public employment."

Thus, while acknowledging the exception carved out for appointment on compassionate ground, it has been categorically observed that "object of providing such an ameliorating relief should not be taken as opening an alternative mode of recruitment to public employment". Similarly, in Mumtaz Yunus Mulani v. State of Maharashtra (2008) 11 SCC 384, it is held -

"11. However, it is now a well settled principle of law that appointment on compassionate ground is not a source of recruitment. The reason for making such a benevolent scheme by the State or the Public Sector Undertaking is to see that the dependents of the deceased are not deprived of the means of livelihood. It only enables the family of the deceased to get over the sudden financial crisis."

The foremost factor for consideration for appointment on compassionate ground, therefore, is to protect the family in question from penury on the death of sole bread earner. It is in the light of this aspect Clause 4.1 is to be understood. It states that in case any eligible member of the deceased family is in Government service, he will not be entitled for appointment on compassionate ground. Apparently, the Clause is loosely drafted. If a family member at best residing separately is already in employment in Government service, there is no need for him to file an application for appointment on compassionate ground in lieu of death of father, mother or brother, as the case may be. The need arises only when "no one in the family" is in employment of the State or instrumentality of the State and there is sudden death of the sole bread earner.

We, therefore, respectfully disagree with the interpretation given to Clause 4.1 of the Policy for compassionate appointment in Ku. Priyanka Dixit (supra) and Prakash Parmar(supra) and hold that where in a family of deceased Government servant, any of the member eligible for compassionate apportionment is in the employment in government service or corporation, board, council, commission etc., any other member of the family, though eligible, will not be entitled for appointment on compassionate ground".

Learned counsel for the petitioner has placed reliance upon the Single Bench judgment in the matter of Prakash Parmar v. Govt. of M.P. dated 29.3.2012 but the said judgment has already been overruled by the Division Bench. He has also placed reliance upon the judgment dated 15.1.2014 passed in W.P. No.12017/2012 by the Single Bench in the matter of Manish Kalosiya v. Commissioner, Nagar Palika Nigam, Ratlam but in view of the Division Bench judgment the benefit of contrary view taken in the Single Bench judgment cannot be granted to the petitioner. In view of the fact that the petitioner"s brother who is also one of the family member of the deceased employee, is already in government service, the respondents have not committed any error in rejecting the petitioner"s application for compassionate appointment in view of Clause 4.1 of the Circular dated 18.8.2008. The writ petition is accordingly found to be devoid of any merit, which is dismissed.