MP High Court Upholds Decision To Consider Younger Son Of Deceased Employee For Compassionate Appointment Despite Elder Son Serving In Army
21 Feb 2022 1:36 PM
The elder son lived separately with his wife and was not providing financial aid to the deceased's family.
The Madhya Pradesh High Court, Indore Bench recently upheld the decision of a single bench wherein the Writ Court had directed the State to consider the younger son of a deceased government employee for compassionate appointment, despite his elder son serving in the Indian Army.
The division bench of Justice Vivek Rusia and Justice Pranay Verma noted that the elder son, though was in regular employment, lived separately, had constituted his own family and was not in a position to provide financial aid to the deceased's family, i.e. deceased's wife and younger son.
"He is seized to be a member of the family of the deceased employee. In the family of a working son, his brother has no claim," the Bench remarked.
The Court was hearing a writ appeal preferred by the State against the order of the Writ Court, whereby it had directed the State Government to consider the case of the Petitioner (younger son of the deceased) for grant of compassionate appointment on merit, ignoring clause 4.1 of the policy dated 29.09.2014.
The facts of the case were that the deceased servant was working as peon in the office of the Collector, District Ujjain. He died due to cardiac arrest while in employment. His younger son (Petitioner) moved an application for compassionate appointment since he was dependent on his father's income and was eligible for the job by virtue of his educational qualifications. He also attached an affidavit of his elder brother with the application, wherein the elder brother had stated that he was serving in the Indian Army but was not in a position to support the family financially as he was living separately with his wife.
The Collector forwarded the application of the Petitioner to the General Administration Department (GAD) to seek directions. The GAD rejected the application citing Clause 4.1, which disqualifies a person seeking compassionate appointment, if any member of the deceased servant has a government job.
Aggrieved by the same, he filed a writ petition before the Court and the same was allowed on the grounds that employment in the Indian Army is tenure appointment. Moreover, the Writ Court had noted that the brother of the Petitioner, after joining the Indian Army, has been living separately and therefore, the Petitioner cannot be made to suffer for it.
Aggrieved by the said order, the State preferred an appeal.
The State submitted that since the brother of the Petitioner was serving in the Indian Army, he automatically became ineligible for compassionate appointment, pursuant to Clause 4.1. It was further submitted that the language of Clause 4.1 was absolutely clear and that no other interpretation ought to be given to it. It was also argued that even otherwise, the policy of compassionate appointment is only a policy framed by the Government, which has no statutory force, hence, no writ of mandamus can be issued to the State for providing employment.
The State relied on on the judgment of the Division Bench of the Court in the case of Prajesh v. State of M.P., wherein Clause 4.1 of the aforesaid policy had been examined and it was held that the dependent of the deceased's family is not entitled to a compassionate appointment if one of the family members is in Government Service, even if he is not supporting the other dependent. Therefore, the State argued, the order passed by Writ Court ran contrary to the aforesaid order and hence, was liable to be set aside.
Per contra, the Petitioner submitted that the Writ Court had rightly held that employment in the Indian Army is different from the service of State Government as well as Central Government. He argued that in the Indian Army, there is no uniform age of retirement at the age of 60 or 62 years. He stated that as per Clause 4.1, if any member is in employment in services of Corporation, Council and commission etc., only then would one of the dependents be ineligible to claim the compassionate appointment. Therefore, he argued, employment in the Armed forces was liable to be excluded as it cannot be compared with government service.
Even otherwise, he submitted, being an employee of the Indian Army, the brother of the Petitioner was being posted in various parts of the country and that he was having his own family to support. He was out from dependence of the deceased employee. Hence, he concluded that no interference was warranted and the appeal was liable to be dismissed.
Scrutinizing the provision under Clause 4.1, the Court observed-
The language of this clause is very clear as it says that if any member of the family of the deceased Government employee is already in regular service, then other dependents shall not be eligible to claim compassionate appointments. The applicant shall submit an affidavit that no other family member is in employment. The Division Bench of this Court in case Prajesh Vs. State of M.P. has considered clause 4.1 of the policy and held that a brother who is living separately is also come under the definition of a member of the family, therefore, merely a member of the family of the deceased servant, who is in employment in government service or corporation or board, council or commission has started living separately, he cannot be excluded from the class under clause 4.1 of the policy. The Writ Court has considered the nature of employment in the Indian Army and held that it cannot be equated with regular services in the Government as well as Central Government, hence, the case of the petitioner deserves to be considered on merit ignoring clause 4.1 of the policy.
Considering the case at hand, the Court noted that the mother of the Petitioner had filed an affidavit to the effect that she was not getting any financial support from his first son because he was living elsewhere for the last 8 years with his family. Brother of the Petitioner had also given an affidavit, stating that he was living separately along with his wife. Examining the facts of the case, the Court opined-
Employment in the armed force cannot be compared with service in the state or central Government. His late father and brother used to look after his mother, hence his younger brother is entitled to get a compassionate appointment. By letter dated 10 November 2016 without verifying the aforesaid fact and conducting any enquiry, respondent No.1 has communicated its decision to the Collector in view of clause 4.1. of the policy, the writ petitioner is not entitled to compassionate appointment.
The Court then laid out a step-by-step procedure with respect to compassionate appointment and held that the son who is already in regular employment, constitutes his own family and thus, seizes to be a member of the family of the deceased employee-
As per clause 2.1. of the policy in question only wife and husband are treated dependent as the case may be on a government employee and they have first right to claim the compassionate appointment, in case wife or husband as the case may be is ineligible then he /she can nominate son or unmarried daughter. The nomination of a son who should be unemployed and not have any source of income, therefore, survival either wife or husband cannot nominate son who is already in employment. The son who is in employment is not entitled to claim a compassionate appointment. Son means who is not in employment. The son who is already in regular employment constitute his own family hence he is seized to be a member of the family of the deceased employee. In the family of a working son, his brother has no claim.
With the aforesaid observations, the Court decided not to interfere with the impugned order and further directed the authorities to comply with the said order within 60 days. The Appeal was accordingly dismissed.
Case Title : GENERAL ADMINISTRATION DEPARTMENT v. PREMSINGH
Citation:
