Jitendra Kumar Jaiswal v. The State Of Chhattisgarh

NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 2897 of 2021 Jitendra Kumar Jaiswal S/o Late Ashok Jaiswal Aged About 29 Years R/o Takiya Road, Ambikapur Ward No. 21, District Surguja Chhattisgarh. ---- Petitioner

Versus

1.

The State Of Chhattisgarh Through The Principal Secretary, Home Department Mahanadi Bhawan, New Raipur, District Raipur Chhattisgarh 2.

The Inspector General Of Police Surguja Range, District Surguja Chhattisgarh 3.

The Superintendent Of Police Surajpur, District Surajpur Chhattisgarh. ---- Respondents For Petitioner :

Mr. Abhishek Pandey, Advocate For State :

Mr. Kunal Das, Panel Lawyer Hon'ble Shri Justice P. Sam Koshy Order on Board 24/06/2021 1.

Aggrieved by the decision of the respondents dated 11.08.2020 passed by the respondent No.3 and also the order dated 29.12.2020 and 21.05.2020, the present writ petition has been filed. Vide all the aforesaid orders, the claim for compassionate appointment filed by the petitioner has been rejected. The only ground of rejection was that in the family of the deceased there was another member, who was in government employment and therefore the claim of the petitioner has been rejected.

2.

The facts of the case in brief is that the father of the petitioner was working as a Head Constable under the respondents and who died in harness on 25.02.2020. On the date of death of the petitioner, the

deceased left behind his widow and three sons. Of the three sons, the petitioner herein is the second son and there is one younger brother also of the petitioner along with his mother staying together. 3.

The eldest brother Vinay Kumar Jaiswal was appointed as a Shiksha Karmi in the year 2007 itself and since then he has been staying separately and the said Vinay Kumar Jaiswal the elder brother of the petitioner was already married and he had his own wife and children to sustain married much before the death of the deceased. It is also the contention of the petitioner that on the date of death of the deceased i.e. on 25.02.2020, the wife of the deceased employee and the petitioner and his younger brother Dharmendra were the persons who were totally dependent upon the income from the salary of the deceased.

4.

According to the petitioner, since his elder brother was already married long back and he had his own wife and children to take care of, the petitioner herein and other dependents were totally depending upon the income from the deceased and that the elder brother was not supporting the family financially and after the death of the deceased, the widow and the two children (the petitioner and his younger brother) are finding it difficult to sustain themselves. It is the contention of the petitioner that without verification of the aforesaid facts on a hypertechnical ground that someone in the family is already in government employment, the claim of the petitioner has been rejected. 5.

It is the contention of the petitioner that since the elder brother got his employment long back and he has already married and he has his own wife and children and also lives separately, he does not fall within the

definition of dependent of the deceased. Moreover, the elder brother who is already married and has his own family dependent upon him, cannot be considered to be a permanent source of income for the petitioner and his widowed mother for sustaining themselves. To that extent the authorities ought to have conducted an inquiry and thereafter should have taken a decision.

6.

The State counsel on the other hand opposing the petition submits that since the elder brother of the petitioner is already in government employment, in terms of the policy for compassionate appointment, the candidature of the applicant has been rejected and in the absence of any challenge to the policy, the decision of the respondent cannot be said to be bad.

7.

At this juncture, it would be relevant to take note of a recent judgment passed by this Court in WPS No. 1025/2020 (Nandini Pradhan Vs. State of Chhattisgarh & Others). The said Writ Petition was allowed on 18.2.2020 wherein the Court has relied upon the judgment passed on an earlier occasion in the case of Smt. Sulochana Netam Vs. State of Chhattisgarh & Others in WPS No. 2728/2017 decided on 23.11.2017 wherein this Court had allowed the said Writ Petition and set aside the earlier order passed by the authorities and had remitted the matter back for a fresh consideration of the claim of Petitioner after due verification of dependency aspect, firstly upon the deceased employee and secondly whether the brothers of Petitioner who are in government employment are providing any assistance to Petitioner or not and also whether those brothers have married and have their own family or not and whether they are staying along with Petitioner or not.

These are the facts which ought to have been verified while rejecting the claim of Petitioner in the present Writ Petition and which does not seem to have been considered by the authorities and they simply passed an order on hyper-technical ground specifically dis-entitling the Petitioner for claiming compassionate appointment in the event of family members of deceased employee being in government employment.

8.

This Court is of the firm view that the intention by which the said clause inserted by the State Government in the policy of compassionate appointment was to ensure that the compassionate appointment can be given to a person whose is more needy. It never meant that in the event of there being somebody in the government employment in the family of deceased employee, the claim for compassionate appointment would stand rejected only on that ground. Moreover, in the opinion of this Court the possibility cannot be ruled out of the so called earning members and the so called persons who are in government employment from among the family members of deceased employee, having their own family liabilities and in some cases are far away from the place of deceased employee and staying along with their own family. The rejection of the claim for compassionate appointment to a person who was directly dependent upon the earnings of deceased employee would therefore be arbitrary and would also be in contravention of the intentions of framing the scheme for compassionate appointment.

9.

In the case of Sulochana (supra), in paragraph 9, this Court dealing with the said issue has held as under:-

"9. In the considered opinion of this Court, in a case, where claim of compassionate appointment is made on the ground that the other member of the family had started living separately and not providing any financial help to the remaining dependent members of the family, who are at lurch, factual enquiry ought to be made by the competent authority to arrive at its own conclusion of facts as to whether this assertion of other earning member living separately is factually correct or not. If it is found, as a matter of fact, that the other earning member of the family at the time of death had already started living separately and not providing financial assistance to the remaining dependents of the family, compassionate appointment must follow to eligible dependent of the family.

However, in the enquiry, if it is found that the claim is only to get employment without there being any need because other earning member of the family is not living separately and providing financial support, compassionate appointment may not follow. The aforesaid enquiry is required to be done even though the policy does not categorically state so. The State should consider by incorporating amendments in the policy to deal with this such contingency where it is found that on the date of death of government servant, the other earning member was living separately and not providing any financial help." 10.

The aforesaid principles of law laid down in the case of Sulochana (supra) have been followed by this Court in a large number of cases and that is the consistent stand of the various branches of this Court in the past many years now. This Court is also in the given circumstances inclined to hold that the rejection of the application of Petitioner for compassionate appointment by a single line order only on the basis of the clause mentioned in the scheme or policy of compassionate appointment of the State Government would not be sustainable. There ought to have been some sort of preliminary enquiry so far as dependency part is concerned conducted by the Respondents prior to reaching to a conclusion.

11.

Considering the fact that there is an elder brother in government employment, what needs to be verified is whether the said person can be brought within the ambit of dependent. Whether the said person can be compelled to take care of the petitioner and his widowed mother particularly when he has his own family and children to take

care of and he has been living separately altogether. It would had been a different case if the government employee i.e. the elder brother to the petitioner could have been unmarried and was living along with the petitioners which could have forced us to infer that he was there for sustenance of the family.

12.

In the absence of any such situation, the policy of the State Govt. to that extent so far as compassionate appointment is concerned, has to be read down to be decided only after an enquiry which needs to be conducted by the respondents, ascertaining the dependency part and also in respect of any support which the petitioners are getting from the elder brother. For the aforesaid reason, the impugned order needs to be reconsidered and the rejection of the candidature of the petitioner by strict interpretation of the policy would not be sustainable. 13.

Thus, for all the aforesaid reasons, the impugned order, Annexure P-1, deserves to be and is accordingly set aside. The authorities are directed to re-consider the claim of Petitioner afresh taking into consideration the observations made by this Court in the preceding paragraphs and take a fresh decision at the earliest within an outer limit of 90 days from the date of receipt of copy of this order. 14.

Writ Petition is allowed and disposed of accordingly. Sd/- (P. Sam Koshy) Judge Ved