Sweta Singh vs State Of Chhattisgarh

This writ petition is directed against the order dated 23.11.2021 (Annexure PÂ1) passed by respondent No.7/District Education Officer, Bilaspur by

which the petitioner's appointment as Assistant GradeÂIII has been revoked by respondent No.7 holding that she was not eligible to be appointed on

compassionate basis for the post of Assistant GradeÂIII as her husband and her husband's brother both were in roll of the State Government which

bars her from compassionate appointment.

It is the case of the petitioner that her fatherÂinÂlaw Manmohan Singh Pawar while working as Block Education Officer, Surajpur died in harness

on 16.12.2018 and thereafter the petitioner made an application on 7.1.2019 for grant of compassionate appointment and ultimately with a delay of

2½ years she was granted compassionate appointment on 2.6.2021 (Annexure PÂ13), but thereafter she was subjected to showÂcause notice on

26.10.2021 (Annexure PÂ14) stating that her husband namely Basant Pratap Singh was already working as Shiksha Karmi GradeÂI w.e.f. 30.8.2013

and her husband's brother namely Akhilendra Pratap Singh was also working as Shiksha Karmi GradeÂII w.e.f. 16.7.2010, which she has suppressed

and ultimately, by the impugned order, her appointment has been revoked. It is further case of the petitioner that the petitioner's husband and the

petitioner's husband's brother both were Shiksha Karmi on the date of sad demise of her fatherÂin law, therefore, they were not Government

servant as on that day and therefore, revocation of her appointment is bad in law.

Return has been filed by the respondents/State, stating interÂalia that the petitioner's husband Basant Pratap Singh and the petitioner's husband's

brother Akhilendra Pratap Singh both were holding and working as Government servant on the demise of her fatherÂinÂlaw and therefore, she was

ineligible for appointment on the post of Assistant GradeÂIII on compassionate basis and she has suppressed the material fact and got appointment,

which has rightly been revoked by respondent No.7, which calls for no interference and the writ petition deserves to be dismissed.

Mr.A.N.Bhakta with Mr.Vivek Bhakta, learned counsels for the petitioner, would submit that it is now been settled by the judgment of this Court

(single Bench) in the matter of Harnarayan Yadav v. Chhattisgarh Public Service Commission, Raipur & Anr. ILR 2017 Chhattisgarh 1864 which has

been affirmed by the Division Bench of this Court in the matter of Harnarayan Yadav v. Chhattisgarh Public Service Commission, Chhattisgarh and

another ILR 2019 Chhattisgarh 639, in which it has been held that Shiksha Karmis are not Government servant and they are not holders of civil post,

therefore, they cannot be treated as Government servant. They would further submit that since the petitioner's both relatives i.e. husband and

husband's brother were Shiksha Karmis on the date of sad demise of her fatherÂinÂlaw, therefore, they were not Government servant and as such,

the impugned order is liable to be setÂ​aside.

On the other hand, Mr.Suyash Dhar, learned Panel Lawyer appearing for the respondents/State, would submit that though the petitioner's husband

and the petitioner's husband's brother both were Shiksha Karmis on the date of death of her fatherÂinÂlaw, but subsequently her husband Basant

Pratap Singh was absorbed in Government Department on 01.11.2020 and her husband's brother Akhilendra Pratap Singh was absorbed on 1.7.2019

in Government Department and they have been confirmed as Government servant. Therefore, prohibition clause would apply and since two relatives

are already in Government service, therefore, the petitioner was not eligible to be appointed on compassionate basis and as such, the writ petition

deserves to be dismissed.

I have heard learned counsel appearing for the parties, considered their rival submissions made hereinÂabove and also went through the records

with utmost circumspection.

Admittedly, the petitioner's fatherÂinÂlaw while working as Block Education Officer, Surajpur died in harness on 16.12.2018 and the petitioner

made an application on 7.1.2019 for grant of compassionate appointment in terms of relevant and applicable policy dated 10.6.2013 read with policy

dated 30.8.2016. According to that policy, daughter inÂlaw is entitled for compassionate appointment after death of her fatherÂinÂlaw and at that

time, the petitioner's husband Basant Pratap Singh was working as Shiksha Karmi GradeÂI and her husband's brother Akhilendra Pratap Singh was

working as Shiksha Karmi GradeÂ​II.

Question for consideration as to whether Shiksha Karmi can be considered as Government servant cameÂup for consideration before this Court in

the matter of Harnarayan Yadav (supra) (single Bench), in which this Court has held that Shiksha Kamri (petitioner therein) is not a Government

servant and observed as under:Â​

“15. Applying the principle of law laid down by the Supreme Court and the Madhya Pradesh High Court in the aforesaid judgments, if the facts of

the present case are examined, it is quite apparent that the petitioner was appointed on the post of Shiksha Karmi GradeÂIII (now reÂdesignated as

Assistant Teacher Panchayat) under the Rules of 2007. The said Rules were promulgated under Section 70(1) read with Section 95 of the Act of

1993. That rules were not framed in exercise of powers conferred under proviso to Article 309 of the Constitution of India. It is also apparent that the

petitioner was appointed on the post of Shiksha Karmi GradeÂIII by Janpad Panchayat, Bhatapara, his appointing as well as disciplinary authority is

the Chief Executive Officer, Janpad Panchayat, Bhatapara and as such, full administrative and disciplinary control vest in Janpad Panchayat,

Bhatapara. Merely because he has been placed under the disposal of school owned by the State Government, he cannot claim that he is a government

servant. It is also not in dispute that the petitioner is not entitled for protection under Article 311 of the Constitution of India. Viewed from any angle, it

cannot be held that the petitioner was appointed under the Rules promulgated under Article 309 of the Constitution of India and as such, the petitioner

having been appointed by Janpad Panchayat, Bhatapara pursuant to the Rules framed under the Rules promulgated under Section 70(1) of the Act of

1993 and admittedly not entitled for protection under Article 311 of the Constitution of India. It cannot be held that the petitioner is government servant

and is entitled for age relaxation.

The aforesaid order was taken to the Division Bench of this Court and the Division Bench of this Court in the matter of Harnarayan Yadav (supra)

has affirmed the order of single Judge holding that Shiksha Karmi is not the holder of a civil post and therefore, he is not a Government servant. It was

observed as under:Â​

“21. Keeping the totality of the various constitutional provisions and the corresponding enactments including the Act of 1993 and the 2007 Rules

relating to appointment of the Panchayat Teachers, this Court has no hesitation in coming to the same conclusion as the learned single Judge that the

Appellant cannot be treated as a Government Servant as he is not holder of a civil post under the State but an appointee of a Panchayat which is an

independent entity and has its own enactments and rules governing such appointees. The concession therefore which had been provided for in the

advertisement of age relaxation of additional three years to a Government servant cannot be extended to the Appellant as he is not holder of a civil

post under the State and cannot be treated to be a Government servant to derive the benefit of age relaxation.â€​

Judgments rendered by Single Bench of this Court in the matter of Harnarayan Yadav (supra) was affirmed by the Division Bench and SLP (C)

No.12313/2019 against the order of Division Bench was dismissed by the Supreme Court on 1.7.2019, as such, it is established that Shiksha Karmi is

not holder of a civil post under the State and therefore, he is not a Government servant.

Now coming to the facts of the case, it is quite vivid that the petitioner's husband namely Basant Pratap Singh and her husband's brother namely

Akhilendra Pratap Singh both were Shiksha Karmis on the date of death of her fatherÂinÂlaw Manmohan Singh Pawar and even the date on which

the petitioner made an application for grant of compassionate appointment on 7.1.2019, till then they were working as Shiksha Karmis and

subsequently they have been absorbed in Government Department on 1.7.2019 and 1.11.2020 respectively, but that will not make the petitioner

ineligible for the reasons that the petitioner was eligible to be appointed on the date of sad demise of her fatherÂin law on 16.12.2018 for which the

petitioner had already made an application on 7.1.2019 as on that date and immediately thereafter her both relatives were working as Shiksha Karmis

and they were not in Government service as it is well established by principle of law laid down by this Court in Harnarayan Yadav (supra).

The Supreme Court in the matter of Indian Bank and others v. Promila and another (2020) 2 SCC 729 has held that claim for compassionate

appointment must be decided only on basis of relevant scheme prevalent on date of demise of employee.

Merely because the petitioner's claim for compassionate appointment was delayed by the respondents for more than two years and in the

meanwhile, the petitioner's husband and her husband's brother both were absorbed in Government Department, her claim cannot be rejected as it

would amount to giving premium to the Government authorities for their own wrong for delay in consideration of the petitioner's application for

compassionate appointment without any valid ground.

Since on the date of death of the petitioner's father inÂlaw Manmohan Singh Pawar and immediately thereafter no family member of the

petitioner was in Government service and both the relatives were Shiksha Karmis and not in Government service as on that date, the petitioner's

appointment on 2.6.2021 (Annexure PÂ13) could not have been interdicted on the ground that subsequently the petitioner's husband and her husband's

brother both have become Government servant and in Government service by virtue of absorption in Government Department and policy applicable

bars compassionate appointment on that ground.

Accordingly, the impugned order dated 23.11.2021 (Annexure PÂ1) passed by respondent No.7 revoking the petitioner's order of appointment is

hereby quashed. She is directed to be reinstated on the post of Assistant GradeÂ​ III along with all consequential service benefits.

The writ petition is allowed to the extent indicated hereinabove. No order as to cost(s).