State Of Chhattisgarh vs Madhuri Sharma

Heard Mr. H.S. Ahluwalia, learned Deputy Advocate General, appearing for the appellants. Also heard Mr. Abhishek Pandey, learned counsel,appearing for the respondents/writ petitioners.

This appeal is presented against an order dated 16.09.2021 passed by the learned Single Judge in WPS No. 4948 of 2021.

The husband of respondent No. 1 and father of respondent No. 2, while working as Laboratory Technician under the appellant No. 3 institution, died-in-harness on 16.03.2020.

The respondent No. 2 had filed an application for compassionate appointment, which came to be rejected by an order dated 03.06.2021. Challenging the same, the writ petition was filed. The learned Single Judge, relying on the decision rendered in the case of Smt. Sulochana Netam v. State of Chhattisgarh & Others (WPS No. 2728 of 2017, decided on 23.11.2017), vide order dated 16.09.2021, set aside the order dated 03.06.2021 and directed the appellants to re-consider the claim of the respondent No. 2 (writ petitioner No.2), after taking into the consideration the observations made in Smt. Sulochana Netam (supra) within an outer period of 90 days.

Mr. Ahluwalia submits that the issue is covered by the judgments of this Court in the cases of Neeraj Kumar Uke v. State of Chhattisgarh and others (WA No. 334 of 2021) decided on 10.12.2021 and State of Chhattisgarh and Others v. Kevra Bai Markandey and Another (WA No. 91 of 2022) decided on 23.02.2022.

Clause 6(A) of the Consolidated Revised Instructions regarding compassionate appointment on the death of a government servant during his service, 2013 (for short, the ‘Consolidated Revised Instructions, 2013’), as translated to English, reads as follows:

“6(A) In the family of the deceased married government employee, if any other member of the family is already in government service, then no other member of the family will be eligible for compassionate appointment.”

In the case of Smt. Sulochana Netam (supra), the husband of the petitioner, who was working as a Constable, died in harness on 11.01.2017 leaving behind a 10 month old daughter and the petitioner. They were dependent on the deceased government employee. Claim of compassionate appointment of the petitioner was rejected on the ground that the father-in-law of the petitioner was in government service. It was in that background the learned Single Judge directed the authorities to verify as to whether the father-in-law was living separately and was providing financial help, and accordingly, remanded the matter for fresh consideration.

A Division Bench of this Court, in Neeraj Kumar Uke (supra), at paragraphs 9, 10, 11, 12, 14, 15 and 16, observed as follows:

In Umesh Kumar Nagpal v. State of Haryana, reported in (1994) 4 SCC 138, the Hon’ble Supreme Court, in paragraph 2, observed as follows:

"As a rule, appointments in the public services should be made strictly on the basis of open invitation of applications and merit. No other mode of appointment nor any other consideration is permissible. Neither the Governments nor the public authorities are at liberty to follow any other procedure or relax the qualifications laid down by the rules for the post. However, to this general rule which is to be followed strictly in every case, there are some exceptions carved out in the interest of justice and to meet certain contingencies. One such exception is in favour of the dependants of an employee dying in harness and leaving his family in penury and without any means of livelihood. In such cases, out of pure humanitarian consideration taking into consideration the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made in the rules to provide gainful employment to one of the dependants of the deceased who may be eligible for such employment. The whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post much less a post for post held by the deceased." (emphasis added).”

In State Bank of India & Another v. Somvir Singh, reported in (2007) 4 SCC 778, the Hon’ble Supreme Court observed as under:

“7. Article 16(1) of the Constitution of India guarantees to all its citizens equality of opportunity in matters relating to employment or appointment to any office under the State. Article 16(2) protects citizens against discrimination in respect of any employment or office under the State on grounds only of religion, race, caste, sex, descent. It is so well settled and needs no restatement at our ends that appointment on compassionate grounds is an exception carved out to the general rule that recruitment to public services is to be made in a transparent and accountable manner providing opportunity to all eligible persons to compete and participate in the selection process. Such appointments are required to be made on the basis of open invitation of applications and merit. Dependants of employees died in harness do not have any special or additional claim to public services other than the one conferred, if any, by the employer.”

In State Bank of India v. Raj Kumar, reported in (2010) 11 SCC 661, the Hon’ble Supreme Court observed that it is well settled that appointment on compassionate grounds is not a source of recruitment and that it is an exception to the general rule that recruitment to public services should be on the basis of merit by open invitation providing equal opportunity to all eligible persons to participate in the selection process. The dependants of employees, who die in harness, do not have any special claim or right to employment, except by way of the concession that may be extended by the employer under the Rules or by a separate scheme, to enable the family of the deceased to get over the sudden financial crisis. The claim for compassionate appointment is therefore traceable only to the scheme framed by the employer for such employment and there is no right whatsoever outside such scheme.

In State of Himachal Pradesh & Another v. Parkash Chand, reported in (2019) 4 SCC 285, the Hon’ble Supreme Court reiterated that compassionate appointment is not a matter of right, but must be governed by the terms on which the State lays down the policy of offering employment assistance to a member of the family of a deceased government employee.

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The factual matrix in the present case is not akin to the case in Smt. Sulochana Netam (supra).

In the context of clause 6(A) of the Consolidated Revised Instructions, 2013, a question also arises as to whether the father-in-law can be construed to be a member of the family for the purpose of depriving the widow from securing appointment on the ground that her father-in-law is in government service. This aspect was, however, not considered in Smt. Sulochana Netam (supra).

It is no longer res integra that compassionate appointment cannot be claimed as a matter of right, as it is not a vested right. Compassionate appointment can be claimed only on the basis of scheme applicable for such appointment. When the scheme itself provides that no appointment shall be granted on compassionate ground, if any of the family members is in government service, no appointment can be claimed on the ground that the family member in government service is not giving any financial assistance. No obligation is cast upon the government under the scheme to find out as to whether such employee is providing any financial assistance to the other members of the family.”

(emphasis supplied)

In WA 33 of 2022 (State of Chhattisgarh and others v. Muniya Mukharjee, decided on 18.02.2022), a Division Bench of this Court analyzed the provisions contained under Clauses 5 and 6(A) of the Consolidated Revised Instructions, 2013 and recorded as follows at paragraphs 15 and 16:

“15. A perusal of clause 5 of the Scheme would go to show that it does not envisage that on the death of a married government servant, the parents of the government servant would be entitled to compassionate appointment. It is the spouse of the deceased government employee who is given the first preference and then the son/adopted son, and so on and so forth in the sequence as laid down in clause 5. As only the dependent family members of the deceased government servant as indicated in clause 5 of the Scheme are eligible for compassionate appointment, in absence of definition of family in the Scheme, it will be reasonable to hold that the relations of the deceased government employee as mentioned in clause 5 would constitute the family of the deceased government employee. If any of the family members as shown in clause 5 of the Scheme is already in government service, in terms of clause 6(A), the other members of the family as mentioned in clause 5 would not be eligible for compassionate appointment.

Explanation to clause 6A does not in any way relate to family of the deceased married government servant. What is the relevance of the explanation is also not discernible inasmuch as when the scheme had excluded dependent parents for being considered for compassionate appointment, there is no purpose in describing who are the dependents of the deceased married government servant.”

Accordingly, in Muniya Mukharjee (supra), this Court held that since another son of the deceased employee was already in government service, such son, who is the government employee would come within the meaning of family of the deceased employee.

In Kevra Bai Markandey (supra), the facts, inter alia, were that the husband of the petitioner No. 1 and father of the petitioner No. 2, namely, late Garjan Ram Markandey, while working as Rasoiyya (Cook) in Tribal Development Department, Balodabazar-Bhatapara, died-in-harness on 17.10.2018. After his death, the petitioner No.2 filed an application for grant of compassionate appointment. The appellant No.3 rejected the aforesaid application vide order dated 11.02.2021 on the ground that his elder brother, namely, Bhanu Markandey is already working in a government job and posted as Constable in Balodabazar-Bhatapara and therefore, as per the policy of compassionate appointment, he is not eligible to be considered for compassionate appointment. The learned Single Judge had relied on the decision in the case of Smt. Sulochana Netam (supra) and directed the authorities to reconsider the case of the petitioner No. 2 afresh in light of the judgment rendered in Smt. Sulochana Netam (supra). A Division Bench of this Court, on an appeal being preferred, in view of the earlier decisions in the cases of Neeraj Kumar Uke (supra) and Muniya Mukharjee (supra) allowed the appeal.

Mr. Pandey had cited some judgments of Single Benches, rendered following Smt. Sulochana Netam (supra). However, this issue now squarely covered by the decisions rendered by Division Bench in Neeraj Kumar Uke (supra) and Kevra Bai Markandey (supra).

In that view of the matter, the order of the learned Single Judge cannot be sustained. Accordingly, the writ appeal is allowed. Order dated 16.09.2021 of the learned Single Judge is set aside. No cost.