Appointment on compassionate
deepaksahu
(Querist) 09 January 2018
This query is : Open
My elder Brother is Goverment Teacher in Uttar pradesh and my Father Was a State Government Employee in PWD madhya pradesh
am i Eligible For appointment on compassionate
Kumar Doab
(Expert) 09 January 2018
1st of all download and obtain copy of 'Compassionate Employment' rules of the establishment and go thru these.
The clause shall explain who is eligible and how one wold be eligible.
If you wish you may post the extract of post the link to rules or attach the rules in Forum section as Experts section does not have provision of attachment.
Kumar Doab
(Expert) 09 January 2018
If rules provide for you or any other family member being eligible then apply in time under proper acknowledgment.
Don't delay.
Also If you wish to apply, apply in time and authority is likely to reply in accordance with rules.
If you are finding any difficulty the concerned office/official and eve seasoned employee's union leaders, colleagues well versed with rules can explain to you.
deepaksahu
(Querist) 09 January 2018
my father was driver in M.P. pwd Department he died during his service now when i approach for compensatory appointment with Concent Of My Mother Department Not Accepting My Application on The Basis That My Brother Is Also In service Hence No Family Member is Eligible For Compensatory Appointment
But My Plea Is That My Brother Is Employee Of UP Government And Live Apart Since Last 7 year and i am applying applying In MP state So wheather I am Eligible Or NOt
deepaksahu
(Querist) 09 January 2018
नुकम्पा नियुक्ति की परिस्थिति
निम्न परिस्थिति में अनुकम्पा नियुक्ति दी जावेगी।
किसी शासकीय सेवक की सेवाकाल में मृत्यु होने पर
अनुकम्पा नियुक्ति की पात्रता
दिवंगत शासकीय सेवक की पत्नी, अथवा पूर्णत: आश्रित पति को, अथवा
दिवंगत शासकीय सेवक का पुत्र अथवा अविवाहित पुत्री अथवा ऐसी विवाहित पुत्री जिसके पति की मृत्यु हो चुकी हो अथवा जो तलाकशुदा हो, किन्तु शर्त यह होगी कि ऐसी पुत्री दिवंगत शासकीय सेवक की मृत्यु के समय उस पर पूर्णत: आश्रित होकर उसके साथ रह रही हो, अथवा
अविवाहित दिवंगत शासकीय सेवक के भाई अथवा अविवाहित बहन को दिवंगत शासकीय सेवक के माता-पिता की अनुशंसा के आधार पर।
एक से अधिक अनुकम्पा नियुक्ति के पात्र होने पर दिवंगत शासकीय सेवक की पत्नी#पति की अनुशंसा एवं पति#पत्नि के न होने पर परिवार की सर्वसम्मति से किसी एक सदस्य को अनुकम्पा नियुक्ति की पात्रता होगी। परिवार में सहमति न होने पर संबंधित जिले के कलेक्टर द्वारा यह निर्णय लिया जावेगा कि किसे अनुकम्पा नियुक्ति दी जाये।
अनुकम्पा नियुक्ति की पात्रता की शर्तें :-
दिवंगत शासकीय सेवक के परिवार का सदस्य अनुकम्पा नियुक्ति के लिये तभी पात्र होगा जब शासकीय सेवा में नियुक्ति के लिए आवश्यक अर्हता धारण करता हो,
शासकीय सेवक की मृत्यु दिनांक से सात वर्ष तक पद उपलब्ध होने पर ही उसके आश्रित को अनुकम्पा नियुक्ति की पात्रता होगी।
सात वर्ष से अधिक अवधि से लापता कर्मचारियों के आश्रितों को अनुकम्पा नियुक्ति इस शर्त पर देय होगी कि संबंधित परिवार द्वारा कर्मचारी के लापता होने की पुलिस में एफ.आई.आर. दर्ज की गई हो एवं पुलिस द्वारा कर्मचारी का कोई अता-पता नहीं होने का प्रतिवेदन दिया गया हो। सात वर्ष की अवधि की गणना एफ.आई.आर दर्ज होने के दिनांक से की जायेगी।
अनुकम्पा नियुक्ति के लिए अपात्रता :-
दिवंगत शासकीय सेवक के परिवार का कोई भी अनुकम्पा नियुक्ति का पात्र सदस्य यदि पूर्व से शासकीय सेवा अथवा निगम, मण्डल, परिषद, आयोग आदि में नियोजित हो,
यदि किसी शासकीय सेवक की मृत्यु अधिवार्षिकी आयु पूर्ण करने के बाद सेवावृध्दि#पुनर्नियुक्ति#संविदा नियुक्ति के दौरान होती है,
सार्वजनिक उपक्रम के मृत कर्मियों के परिवार के सदस्यों को शासन अंतर्गत अनुकम्पा नियुक्ति की पात्रता नहीं होगी।
केन्द्र शासन या किसी राज्य सरकार द्वारा अथवा उसके स्वत्वाधीन या उसके द्वारा नियंत्रित किसी सार्वजनिक उपक्रम अथवा निगम#मण्डल#आयोग द्वारा पदच्युत व्यक्ति,
यदि दिवंगत शासकीय सेवक, प्रशिक्षु, तदर्थ अथवा संविदा के आधार पर नियुक्त किया गया हो,
दिनांक 1.1.2007 के पूर्व अस्वीकृत अथवा निराकृत प्रकरणों पर पुनर्विचार नहीं किया जायेगा।
दिवंगत शासकीय सेवक के परिवार के बिन्दु क्रमांक 2.1 से 2.4 में दर्शाये पूर्णत: आश्रित सदस्य को छोड़कर अन्य को अनुकम्पा नियुक्ति की पात्रता नहीं होगी।
कार्यालय प्रमुख#नियुक्ति प्राधिकारी इस बात को सुनिश्चित करने के लिये व्यक्तिगत रूप से जिम्मेदार होंगे कि दिवंगत शासकीय सेवक के परिवार को वास्तव में तात्कालिक सहायता के रूप में अनुकम्पा नियुक्ति की पात्रता है।
Isaac Gabriel
(Expert) 09 January 2018
If your brother is already married and living a separate life, you can apply for compassioanate ground job.The department cannot say the reason of your brother's employment If not complied with file a writ at High court
deepaksahu
(Querist) 09 January 2018
दिवंगत शासकीय सेवक के परिवार का कोई भी अनुकम्पा नियुक्ति का पात्र सदस्य यदि पूर्व से शासकीय सेवा अथवा निगम, मण्डल, परिषद, आयोग आदि में नियोजित हो,
in the above phrase shaskiya sheva and nigam or other department is of madhya pradesh or all over india what is its juridiction
deepaksahu
(Querist) 09 January 2018
Issac sir How Can I Find Judgement or case laws On Above Case
Isaac Gabriel
(Expert) 09 January 2018
SIN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 22.06.2010
CORAM:
THE HONOURABLE MR.JUSTICE T. RAJA
W.P.No.42681 of 2006
P. Kathiresan ... Petitioner
Vs.
1.Director of Medical and
Rural Health Services
D.M.S. Complex, Chennai 6.
2.The Medical Officer,
Primary Health Centre,
Parthibanoor, Ramnad dist. ... Respondents
Prayer: Petition filed under Article 226 of The Constitution of India praying to call for the records in Na.Ka.No.97801/Ni.9/1/96-1 dated 22.11.1999 issued by the 1st respondent, and to quash the same.
For Petitioner : Mr.P.Murugesan
For Respondents : Mr.S.Gopinathan, AGP
For R1 & R2.
ORDER
The petitioner P.Kathiresan, has challenged the impugned order of termination dated 22.11.1999, terminating the service of the petitioner, who was appointed on compassionate ground, without holding any enquiry whatsoever.
2. The petitioner was appointed as Junior Assistant, by order dated 25.02.1995, at the Primary Health Centre, Parthibanoor, Ramnad District, on compassionate ground, since the petitioners father late C. Pandian, who was working as a Government servant serving as Driver in Government Hospital, Thiruchuli, Virudhunagar District, expired on 25.02.1994. After the death of the petitioner's father, Tmt. P.Pitchaimani the petitioners mother, in her application, nominated the name of the petitioner, who is the second son of Late C. Pandian, for providing employment to the post of Junior Assistant on compassionate ground. Subsequently, the petitioner's mother P.Pitchaimani, also expired on 02.06.1994.
3. In view of the fact that the petitioner's parents had passed away, the petitioner was appointed as Junior Assistant, on compassionate ground, on 25.02.1995. From the date of appointment, the petitioner was working without giving any room for any complaint. Whileso, after 4 years of his service, even without holding any enquiry, the services of the petitioner was terminated by the impugned order dated 22.11.1999, on the ground that the petitioner's elder brother, one Murugesan was already working as leprosy inspector as early as 1989. Therefore, the impugned order came to be passed against the petitioner without holding any enquiry.
4. The learned counsel appearing for the petitioner submits that the very impugned order passed against the petitioner is not sustainable for more than two reasons. Firstly, the petitioner was appointed on compassionate ground, after an application was submitted through the Tahsildar, Aruppukottai stating that there was no one working in the Government service as on the date of submitting the said application seeking appointment under compassionate ground. Secondly, the impugned order was passed without giving any notice or conducting enquiry, and therefore, the impugned order is liable to be set aside, since the same is vitiated for having not followed the principles of natural justice. Thirdly, the G.O.No.155 dated 16.07.1993, also goes in favour of the petitioner which states that, if a member of the family is already in employment at the time of death of the Government servant and was living separately without extending any help to the family, then the case of other eligible dependents will be considered. On the basis of the said G.O.No.155 dated 16.07.1993, the appointment of the petitioner made on compassionate grounds cannot be found fault with, which was not done in this case and, therefore, the petitioner was compelled to challenge the same. At the time of admitting the O.A.No.7497 1999 by the Tribunal, an order of stay was passed directing the first respondent to reinstate the petitioner in the post of Junior Assistant. Further, the petitioner has also completed 15 long years of service and on that basis prayed for quashing the impugned order.
5. On the other hand the learned Additional Government Pleader submits that the petitioner has admitted the factum of his elder brother one Murugesan was already working as leprosy inspector as early as 1989. The respondent came to know about this fact while proceeding to regularise the service of the petitioner and on that basis the impugned order of termination came to be passed. Since, appointment on compassionate grounds can only be extended to the bread winner of a family and as the elder brother is already a Government servant at the time of death of his father, the order of termination was rightly passed on the petitioner and, therefore no interference shall be made by this court, in the present petition filed under Article 226 of The Constitution of India, and on that basis prayed for dismissal of the writ petition.
6. Heard the parties on either side.
7. The petitioners father Late S.Pandian, expired on 25.02.1994, while in service. Therefore, his wife Tmt. P.Pitchaimani the petitioner's mother, in her application nominated the petitioner, who is the second son of Late C. Pandian, for providing appointment to the post of Junior Assistant on compassionate ground. Subsequently, after the said application was made nominating the name of the petitioner, unfortunately, the petitioner's mother also passed away on 02.06.1994. In the meanwhile, the petitioner's elder brother Murugesan, employed in a Government service, was working as leprosy inspector as early as 21.05.1989, without supporting the petitioners family and this fact was also certified by the Tahsildar, Aruppukottai by giving a letter to the department stating that the petitioner is the bread winner of the family as on the date of application seeking employment on compassionate ground. On consideration of the said certificate, the petitioner was appointed as Junior Assistant on compassionate ground. After 4 = years of service, when the respondent came to consider the case of the petitioner for regularisation of service, the respondent came to know about the petitioner's elder brother's employment in Government service and passed the impugned order of termination without holding any enquiry or notice to the petitioner.
8. That apart G.O.No.155 dated 16.07.1993, in para 3 it is clearly mentioned that "even if a member of the family is already in employment and supports the family then the restriction may be applied. When a dependent of the family is employed, the factors to be ascertained are, whether he is regularly employed and is actually supporting the family. If that person was employed even before the death of the Government servant and was living separately without extending any help to the family, then the case of other eligible dependents will be considered."
9. In view of the above said Government order, and taking into consideration the certificate issued by Tahsildar, Aruppukottai certifying that there was no other bread winner in the family except the petitioner, I am of the view that the order of termination impugned herein should not have been passed without giving notice or holding enquiry violating the principles of natural justice and the same is liable to be set aside. Further, the petitioner has been working for the last 15 years and in that context it is useful to refer a judgment of the Supreme Court reported in (2003) 9 SCC 129 (Union of India and others v. K.P.Tiwari) wherein the Apex Court has also held that it would not be appropriate to disturb an appointment if the person is in service for more than 5 years. Whereas, in the present case on hand, the petitioner has already completed 15 years therefore, by taking stake of the family situation, it would not be appropriate for this court to make any other order resulting in uprooting the petitioner's family from livelihood.
10. Therefore, following the decision of the Supreme Court as well as the G.O.No.155 dated 16.07.1993, I am of the considered view that the impugned order is liable to be set aside. Accordingly the impugned order is set aside and the writ petition is allowed. No costs
ee the judgement
deepaksahu
(Querist) 09 January 2018
is It Also Applicable in Madhya Pradesh
Isaac Gabriel
(Expert) 09 January 2018
See the supreme citation mentioned therein
Sudhir Kumar, Advocate
(Expert) 10 January 2018
It is the total financial position of the family which is relevant. You may (or may not be ) considered.
deepaksahu
(Querist) 10 January 2018
:: 1 ::
Writ Appeal No.373/2015
HIGH COURT OF MADHYA PRADESH :
JABALPUR
Writ Appeal No.373/2015
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
:: 2 ::
Writ Appeal No.373/2015
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
:: 3 ::
Writ Appeal No.373/2015
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;kons u fnukda 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 fnoxa r 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%
fnoxa r 'kkldh; los d ds T;"s B iq= MkW ida t JhokLro ds
'kkldh; los k esa fpfdRld ds in ij fu;ksftr gkus s ls
fnoxa r ds iq= vkons d Jh izt's 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
:: 4 ::
Writ Appeal No.373/2015
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
:: 5 ::
Writ Appeal No.373/2015
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
:: 6 ::
Writ Appeal No.373/2015
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 fnoxa r 'kkldh; los d dk iq= vFkok vfookfgr iq=h
vFkok ,ls h 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 gkus s dh fLFkfr
esa fo/kok iw=o/kq tks 'kkldh; lsod dh e`R;q ds le; ml ij
i.w 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.
:: 7 ::
Writ Appeal No.373/2015
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
i.w kZ djus ds ckn los ko`f)@iqufuZ;qfDr@lfa onk 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 fnoxa r 'kkldh; lsod] izf'k{kq rnFkZ vFkok lfa onk
ds vk/kkj ij fu;qDr fd;k x;k gksA
4-6 fnukad 1-1-2007 ds iwoZ vLohd`r vFkok fujkfd`r
izdj.kks a ij iuw foZpkj ugh a 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 gksaxs fd
fnoxra 'kkldh; los d ds ifjokj dks okLro esa rkRdkfyd
lgk;rk ds :i esa vuqdaik fu;qfDr dh vko';drk gS A**
:: 8 ::
Writ Appeal No.373/2015
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 that
those who are dependent for their survival on
men who have lost their lives or become
disabled in the service of the nation should not
suffer. The public purpose of such reservation
would be totally lost if it were to be made
available to those who are gainfully employed.
There is no justification for construing the
words "dependents of ex-serviceman" in any
manner other than that in which the appellant
has construed them. This is in accord with the
reservation policy itself, as shown by the
quotation 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 Government
servant,
(ii) The parents, legitimate children including
children adopted legally and step children of such
Government servant residing with and wholly
dependent 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
deepaksahu
(Querist) 10 January 2018
Department Also Provide Above Judgement and restrict me from Applying for job
deepaksahu
(Querist) 10 January 2018
any more sugestion
Kumar Doab
(Expert) 10 January 2018
You have posted that:
“My Mother Department Not Accepting My Application……’
Your application has been supplied/submitted or not and do you have acknowledgment?
The reply is verbal or in writing?
“my father was driver in M.P. pwd Department he died during his service now when i approach for compensatory appointment with Concent Of My Mother Department Not Accepting My Application……………….. on The Basis That My Brother Is Also In service Hence No Family Member is Eligible For Compensatory Appointment But My Plea Is That My Brother Is Employee Of UP Government And Live Apart Since Last 7 year and i am applying applying In MP state So wheather I am Eligible Or Not”
Isaac Gabriel
(Expert) 11 January 2018
If the administrtion reluctant or refuse, you have to look forward legally instead of raising question repeatedly.
