HIGH COURT OF MADHYA PRADESH : JABALPUR Writ Appeal … · HIGH COURT OF MADHYA PRADESH : JABALPUR Writ Appeal No.373/2015 ... 10.05.2016 O R D E R Per Sanjay ... appointment on compassionate

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Writ Appeal No.373/2015

HIGH COURT OF MADHYA PRADESH :JABALPUR


Prajesh Shrivastava ...Appellant

versus

State of M.P. and others …Respondents-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

Shri Manikant Sharma, learned counsel for appellant.

Shri Samdarshi Tiwari, Deputy Advocate General for

respondents/State.-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

CORAM :

Hon’ble Shri Justice A.M. Khanwilkar, Chief Justice

Hon’ble Shri Justice Sanjay Yadav-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

Reserved on : 05.04.2016 28.10.2015

Date of decision : 10.05.2016

O R D E R

Per Sanjay Yadav, J.

This intra-Court appeal under Section 2(1) of the M.P.

Uchcha Nyayalaya (Khand Nyay Peeth Ko Appeal)

Adhiniyam, 2005, is directed against the order-dated

22.6.2015 passed in Writ Petition No.8843/2015; whereby,

claim of the appellant for appointment on compassionate

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ground in lieu of the death of his mother, has been turned

down, as one of the brother of the appellant was found to be

working as Assistant Surgeon in the services of the State

Government.

2. Mother of the appellant, employed as Lab Attendant in

Higher Education Department, expired on 30.9.2010. He

sought appointment on compassionate ground in lieu of the

death of her mother. The claim was turned down vide

communication dated 20.5.2011 on the ground that his elder

brother is employed in Government service. Aggrieved, the

appellant preferred a Writ Petition No.1637/2013. The

petition was disposed of on 8.2.2013 by taking into

consideration the contention that the petitioner may be given

an opportunity for fresh representation raising the ground that

if the brother, who is employed in Government service, is

living separately, then petitioner is entitled for appointment

on compassionate ground. On re-representation, the claim

was reconsidered and rejected by order dated 2.4.2013 on the

ground that the elder son of the Government servant (elder

brother of the appellant) being employed as Doctor in

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Government service, the appellant was not entitled for the

appointment.

3. Aggrieved, appellant again filed a Writ Petition

No.8520/2013, which was disposed of vide order-dated

29.1.2015 with the direction to the respondents to reconsider

the claim. Whereon, by order-dated 4.4.2015, the claim for

appointment on compassionate ground was turned down by

holding :

**5- ekuuh; mPp U;k;ky;] tcyiqj }kjk ikfjr fu.kZ;

fnukad 29@11@2015 ds vuqikyu esa Jh izts'k JhokLro

fuoklh 'kgMksy }kjk izLrqr vH;kosnu fnukad 13@2@2015

dk vuqdEik fu;qfDr ds izpfyr fu;eksa ds vUrxZr iqu%

ijh{k.k fd;k x;k] ;g ik;k x;k fd fnoaxr ds T;s"B iq= MkW

iadt JhokLro tks fd fnoaxr ds ifjokj ds fufoZokn :i ls

lnL; gS e/; izns'k flfoy lsok oxhZdj.k] fu;a=.k rFkk vihy

fu;e] 1966 ds fu;e 02 esa ifjHkkf"kr 'kkldh; lsod gSA vr%

fnoaxr 'kkldh; lsod ds T;s"B iq= MkW iadt JhokLro ds

'kkldh; lsok esa fpfdRld ds in ij fu;ksftr gksus ls

fnoaxr ds iq= vkosnd Jh izts'k JhokLro dks vuqdEik

fu;qfDr ds izpfyr fu;eksa ds vUrxZr vuqdEik fu;qfDr ik=rk

ugha gS A**

4. Apparent it is from the impugned order-dated 22.6.2015

that the Writ Court relied on Clause 4.1 of the Policy for

appointment on compassionate ground, brought in vogue by

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the General Administration Department, vide letter No.C.3-

4/1/3/06 dated 18th August, 2008 (brought on record in Writ

Petition as Annexure P/15) and opined that “if any one

person of the family is already in Government service,

then rest of the persons are not eligible to get

compassionate appointment”.

5. Contentions on behalf of the appellant is that though his

brother is employed as Assistant Surgeon with the State

Government but, since he is living separately, he cannot be

construed as a “member of family” as contemplated in the

Policy. Inference is drawn from two decisions rendered in

Ku. Priyanka Dixit v. State of M.P. : Writ Petition

No.3250/2006(s) decided on 17.7.2007 and Prakash Parmar

v. Government of M.P. : 2012(4) MPLJ 539.

6. Counsel appearing on behalf of the State, however,

submits that the Policy relates to compassionate appointment,

it does not create any right in an incumbent for appointment,

but only extend a privilege in favour of the wards of

Government servant who die in harness and to retrieve the

family from financial penury. It is urged that narrow

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construction given to the expression 'member of family' as it

appear in the Policy of 2008, that it will exclude such

members of the family who are employed and live separately,

would run contrary to the mandate of Article 16 of the

Constitution of India, which guarantees equality of

opportunity for all citizens in the matter of appointment to

any office or of any employment under the State, inasmuch

as, that even in case where in the family of Government

servant, there are members who are in employment in

Government service and are not residing with Government

servant, but posted elsewhere, other member would claim

employment that since the employed member does not live

with family, which will frustrate the object of Policy. It is

contended that the meaning given to family in these two

judgments, therefore, needs reconsideration.

7. Considered the rival submissions.

8. The issue which crops up for consideration is whether

Clause 4.1 of the Policy dated 18.8.2008 would entitle a

member of the family of Government servant, who dies in

harness, for appointment on compassionate ground, if

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another member of deceased Government servant is in

Government service, but not residing with the family.

9. Clause 2 of the Policy envisages class of person eligible

for appointment on compassionate ground. Clause 2.2 which,

we are concerned with, stipulates :

**2-2 fnoaxr 'kkldh; lsod dk iq= vFkok vfookfgr iq=h

vFkok ,slh fookfgr iq=h ftlds ifr dh e`R;q gks pqdh gks

vFkok tks rykd'kqnk gks] fdUrq 'krZ ;g gksxh fd ,slh

vfookfgr] fookfgr vFkok rykd'kqnk iw=h fnoaxr 'kkldh;

lsod dh e`R;q ds le; ml ij iw.kZr% vkfJr gksdj mlds

lkFk jg jgh gks] vFkok mijksDr ik= lnL; u gksus dh fLFkfr

esa fo/kok iw=o/kq tks 'kkldh; lsod dh e`R;q ds le; ml ij

iw.kZr% vkfJr gksdj lkFk jg jgh gks A**

10. Careful reading of the Clause reveals that a son or

unmarried daughter, or married daughter whose husband has

died (widowed daughter) or divorcee daughter, subject to that

such unmarried, married or divorcee daughter is wholly

dependent on the deceased Government servant and is living

with him/her. In case of non-availability of such persons,

widowed daughter-in-law, wholly dependent and/or living

with the Government servant at the time of death, are the

persons eligible for appointment on compassionate ground.

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11. Clause 4 lays down class of persons ineligible for

appointment on compassionate ground. These are :

4- vuqdaik fu;qfDr ds fy;s vik=rk

fuEufyf[kr fLFkfr esa vuqdaik fu;qfDr dh ik=rk ugha gksxh %

4-1 fnoaxr 'kkldh; lsod ds ifjokj dks dksbZ Hkh

vuqdaik fu;qfDr dk ik= lnL; ;fn iwoZ ls 'kkldh;

lsok vFkok fuxe eaMy] ifj"kn] vk;ksx vkfn esa

fu;kftr gS A]

4-2 ;fn fdlh 'kkldh; lsod dh e`R;q vf/kokf"kZdh vk;q

iw.kZ djus ds ckn lsoko`f)@iqufuZ;qfDr@lafonk fu;qfDr ds

nkSjku gksrh gS]

4-3 lkoZtkfud midez ds e`r dfeZ;ks ds ifjokj ds lnL;ksa

dks 'kklu varxZr vuqdEik fu;qfDr dh ik=rk ugha gksxh A

4-4 dsUnz 'kklu ;k fdlh jkT; ljdkj }kjk vFkok mlds

LoRok/khu ;k mlds }kjk fu;af=r fdlh lkoZtfud midze

vFkok fuxe@eaMy@vk;ksx }kjk inP;qr O;fDr A

4-5 ;fn fnoaxr 'kkldh; lsod] izf'k{kq rnFkZ vFkok lafonk

ds vk/kkj ij fu;qDr fd;k x;k gksA

4-6 fnukad 1-1-2007 ds iwoZ vLohdr̀ vFkok fujkfd`r

izdj.kksa ij iwufoZpkj ugha fd;k tk;sxk A

4-7 fnoaxr 'kkldh; lsod ds ifjokj ds fcUnq dzekad

2-1 ls 2-4 esa n'kkZ;s iw.kZr% vkfJr lnL; dks NksMdj

vU; dks vuqdaik fu;qfDr dh ik=rk ugha gksxhA

4-8 dk;kZy; izeq[k@fu;qfDr izf/kdkjh bl ckr dks

lqfuf'pr djus ds fy;s O;fDrxr :i ls ftEesnkj gkssaxs fd

fnoxar 'kkldh; lsod ds ifjokj dks okLro esa rkRdkfyd

lgk;rk ds :i esa vuqdaik fu;qfDr dh vko';drk gS A**

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English translation of these Clauses are : -

4. Ineligibility for compassionate

appointment :

In the following circumstances, they are not

eligible for compassionate appointment :-

4.1 If any eligible family member of the

deceased government servant is already

employed in government service, or

corporation, board, council, commission etc.

4.2 If any government servant dies after

completing the age of superannuation during

extension of service/re-appointment/contractual

appointment.

4.3 The family members of deceased employee

of public sector shall not be eligible for

compassionate appointment under the

government.

4.4 Any person dismissed by the Central

Government or any State Government or any

Public Sector or Corporation/Board/Commission

under its title or controlled by it.

4.5 If the deceased government servant has been

appointed on the basis of apprentice, ad hoc or

contract.

4.6 The cases rejected or disposed of before

1.1.2007 shall not be considered again.

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4.7 No other member shall be eligible for

compassionate appointment except those

wholly dependent members, indicated at Serial

No.2.1 to 2.4, of the family of deceased

Government servant.

4.8 Office Head/Appointment Authority shall be

personally responsible to ensure that the family of

deceased government servant is really in need of

compassionate appointment as an immediate aid.

12. We are presently concerned with Clause 4.1 and 4.7.

13. Evidently, clause 4.1 stipulates **fnoaxr 'kkldh; lsod ds

ifjokj dks dksbZ Hkh vuqdaik fu;qfDr dk ik= lnL; ;fn iwoZ ls 'kkldh;

lsok vFkok fuxe eaMy] ifj"kn] vk;ksx vkfn esa fu;kftr gS A**.

Whereas, Clause 4.7 envisages **fnoaxr 'kkldh; lsod ds ifjokj

ds fcUnq dzekad 2-1 ls 2-4 esa n'kkZ;s iw.kZr% vkfJr lnL; dks NksMdj vU;

dks vuqdaik fu;qfDr dh ik=rk ugha gksxh A**

14. Case of Ku. Priyanka Dixit (supra) was that she was

appointed on compassionate ground in lieu of death of her

father Gyan Babu Dixit employed as Health Educator who

died in harness on 12.5.2003. Later on, on a complaint

received that member of the family of Gyan Babu Dixit i.e.

his son Devendra Dixit was already in employment, led to

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passing of an order of withdrawing the compassionate

appointment granted to her. On challenge, the Writ Court set

aside the order of removal, holding :-

“6. After hearing the learned counsel for the

parties and on perusal of the original record,

which was submitted by the Government

Advocate, it is apparent that at the time of

submission of the application form, petitioner has

mentioned in her application that her brother

Devendra Dixit is working as Shiksha Karmi and

receiving Rs.4,500/- per month, but he is residing

separately. Similary, her another brother Sandeep

Dixit was in the priviate service and receiving

Rs.2000/- and who is also living separately. It

further reveals from the record that Sandeep Dixit

and Devendra Dixit both were submitted their

affidavits indicating the said fact and thereafter,

the order of compassionate appointment dated

9.6.2003 Annexure P/1 was issued in her favour.

It is further seen from the record that some

complaint was received by the Collector District

Rajgarh and on the basis of the said complaint

without asking any explanation from the

petitioner a report was prepared by him on

21.2.2006 wherein he has recorded the finding of

concealment of material fact of the employment of

her brother Devendra Dixit while applying for

compassionate appointment. Although, the said

finding as recorded by the Collector with regard

to aforesaid fact is contrary to the record as

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discussed hereinabove. At the same time, in

terms of the GAD Policy dated 20.8.2001, the

brother who is living separately does not come

within the meaning of expression 'family'. Once

the brother who was in the employment, is not

residing along with the deceased and residing

separately then it cannot be construed that one

of the members of the family of the deceased

was in the employment. The guidance may be

taken in this respect from the judgment of this

Court in the case of Kamal Singh Bamne v.

State of M.P. : W.P. (S) No.6667/2006 and

Haryana Public Service Commission v.

Harinder Singh AIR 1999 SC 551.”

15. Apparent it is from paragraph 6 of the aforesaid

decision that the Court was not called upon to interpret the

expression 'family', but an observation was made that the

brother who is living separately does not come within the

meaning of expression 'family'. The nuances to such an

interpretation in the background of the Policy being of

compassionate appointment, was not gone into. Yet, the Writ

Court went on to make an affirmative observation to the

effect that once the brother who was in the employment, is

not residing along with the deceased and residing

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separately then it cannot be construed that one of the

members of the family of the deceased was in the

employment. Trite it is, as held in Mst. Jagir Kaur v.

Jaswant Singh AIR 1963 SC 1521 that “6. . the meaning of

the word would, in the ultimate analysis, depend upon the

context and the purpose of a particular statute.” What is true

for a statute would be equally true for the Policy of the State

Government, having force of law. Therefore, the expression

“member of the family” has to be considered in the context of

the Policy as a whole in question.

16. Further, the Writ Court also relied on the decision

rendered by the Supreme Court in Haryana Public Service

Commission v. Harinder Singh AIR 1999 SC 551. A bare

perusal of this decision reveals that, the issue raised before

the Supreme Court was - as to whether Respondent, whose

claim for appointment on compassionate ground was rejected

by Haryana Public Service Commission, was dependent upon

his ex-serviceman father or his mother. Taking note of the

fact as it appears in paragraph 3 of the said decision that there

is a reservation in regard to recruitment for the State

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Government for dependents of service personnel killed or

disabled. Dependents are defined to include, besides the wife

and widow, “dependents sons/daughters”. The said

categorization which was observed by their Lordships was

stated in the reservation policy. Be it noted that the issue

before the Supreme Court was - as to the reservation policy

and not the policy of compassionate appointment; it was

these facts in the background, their Lordships were pleased to

observe :

“7. The whole idea of the reservation is thatthose who are dependent for their survival onmen who have lost their lives or becomedisabled in the service of the nation should notsuffer. The public purpose of such reservationwould be totally lost if it were to be madeavailable to those who are gainfully employed.There is no justification for construing thewords "dependents of ex-serviceman" in anymanner other than that in which the appellanthas construed them. This is in accord with thereservation policy itself, as shown by thequotation therefrom aforestated.”

17. It was thus clear that the expression 'member of family',

as it appear in the Policy of compassionate appointment,

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which we are concerned with, was not under consideration

before the Supreme Court. Therefore, the support drawn

therefrom to interpret the expression “member of family”, in

our humble opinion, is misplaced.

18. In Prakash Parmar (supra), the Writ Court though was

dwelling upon Clause 4.1 of the Policy; however, borrowed

the definition of 'family' from M.P. Fundamental Rules and

M.P. Civil Services (Medical Attendance) Rules, 1958 (for

brevity '1958 Rules).

19. Under M.P. Fundamental Rules, -

(8) Family means a Government servant's wife or

husband, as the case may be, residing with the

Government servant and legitimate children and

step children residing with and wholly dependent

upon the Government servant. Except for

purposes of Section XVI- A of the Supplementary

Rules in Appendix V, it includes, in addition,

parents, sisters and minor brothers, if residing

with and wholly dependent upon the Government

servant.

(b) For the purpose of Section XI, it includes in

addition unmarried and widowed sisters and

minor brothers if residing with and wholly

dependent upon the Government servant.

Note.- Government servant's wife or husband, as

the case may be, legitimate children, step children,

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father, mother, step mother, unmarried and

widowed sisters, minor brothers who reside with

the Government servant and whose income from

all sources including pension (inclusive of

temporary increase/relief in pension and pension

equivalent to death-cum-retirement gratuity

benefits) does not exceed Rs.1275 p.m. may be

deemed to be wholly dependent upon the

Government servant.

Notes. -(1) Not more than one wife is included in

the term 'family' for the purposes of these rules.

(2) An adopted child shall be considered to be a

legitimate child if, under the personal law of the

Government servant, adoption is legally

recognised as conferring on it the status of a

natural child.

[Please see. Chapter II F.R.9]

20. So far as definition of 'family' under 1958 Rules is

concerned, it means -

“(i) The wife or husband of a Governmentservant,(ii) The parents, legitimate children includingchildren adopted legally and step children of suchGovernment servant residing with and whollydependent on the Government servant.”

21. However, clarification was issued by the Public Health

Department vide its Circular No.2273/1697/XVII/Med.(iii)

dated 5.5.1960, clarifying the expression 'residing with'

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stating - “a question has been under consideration of

Government whether the term 'residing with' occurring in

Rule 2(d)(ii) of 1958 Rules should be held to mean physical

residence to the family members of Government servant at

his headquarters. Government have now decided that the

members of Government servant's family who are kept by the

Government servant concerned at a place other than his own

residence for education or treatment or for the sake of

convenience to himself should be deemed to be residing with

him. The said clarification issued by the Government thus

leaves no iota of doubt that under 1958 Rules, if members of

the family is kept away from the residence of Government

servant or for the sake of convenience to himself is treated to

be a member of family.

22. This aspect seems to have escaped from the

consideration in the case of Prakash Parmar (supra).

23. Furthermore, in Ku. Priyanka Dixit (supra) and

Prakash Parmar (supra), the emphasis is on the fact that

though an incumbent is a member of the family but cannot be

treated as such because living separately and not residing

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with the Government servant.

24. The word 'reside' came to be considered in Mst. Jagir

Kaur (supra) in the context of the jurisdiction of the

Magistrate under Section 488 of the Code of Criminal

Procedure, 1898 for entertaining the petition of a wife for

maintenance, wherein their Lordships were pleased to hold -

“6. …. The said meaning, therefore, takes in

both a permanent dwelling as well as a temporary

living in a place. It is, therefore, capable of

different meanings, including domicile in the

strictest and the most technical sense ..”

25. Similarly, in Union of India v. Dudh Nath Prasad

(2000) 2 SCC 20, it is held -

“14. The word '"reside" has been defined in the

Oxford Dictionary as "dwell permanently or for a

considerable time; to have one's settled or usual

abode; to live in or at a particular place." The

meaning, therefore, covers not only the place

where the person has a permanent residence but

also the place where the person has resided for a

"considerable time".”

26. Therefore, merely because a member of the family of

Government servant, who is in the employment in

government service, or corporation, board, council,

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commission etc., has started residing separately, he cannot be

excluded from the class under Clause 4.1 of the Policy.

27. 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.

28. 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.

29. 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 -

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“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.”

30. 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

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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.”

31. 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.

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32. 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.

33. Accordingly, we decline to interfere with the order

passed in passed in Writ Petition No.8843/2015.

34. Consequently, Appeal fails and is dismissed. No costs.

(A.M. KHANWILKAR) (SANJAY YADAV) CHIEF JUSTICE JUDGE

vinod

HIGH COURT OF MADHYA PRADESH : JABALPUR Writ Appeal … · HIGH COURT OF MADHYA PRADESH : JABALPUR Writ Appeal No.373/2015 ... 10.05.2016 O R D E R Per Sanjay ... appointment on compassionate

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