Bhagesh Mesrey vs Public Health Engineering ...
2021 Latest Caselaw 3693 MP

-1-                                              WP No.2925/2020

              HIGH COURT OF MADHYA PRADESH,
                         BENCH AT INDORE
                          W.P NO.2925/2020
                 Bhagesh Mesrey s/o Ramdas Mesrey
                                   vs.
                         State of M.P & others
29.07.2021: (INDORE):
      Shri Gagan Bajad, learned counsel for the petitioner.
      Smt.Vinita Phaye, learned Govt. Advocate for the State.
      Heard through video conferencing on the question of admission.
      Before filing the writ petition, advance copy of the petition was
supplied to office of Advocate General at Indore      and before issuing
notice in this petition a reply has been filed, therefore, the petition is
admitted for final hearing and with the consent of parties heard finally.
2.    The petitioner has filed the present petition being aggrieved by
the letter dated 8.5.2018 (Annexure P/1) written by the Chief Engineer
and letter dated 21.11.2019 (Annexure P/2) written by the Executive
Engineer, PHE Division, Indore whereby the representation for
compassionate appointment has been rejected.
      Facts

of the case in short are as under:

3. The father of the petitioner late Ramdas Mesrey was initially appointed as daily rated employee in the PHE department. Vide order dated 10.3.2003 he was classified as Helper. Along with other employees he approached the Labour Court vide case No.39/2002 ID Ref. The learned Labour Court vide award dated 6.10.2005 has directed the respondent to grant him the wages and other benefits of permanent employee from the date of order of permanent classification dated 10.3.2003. The respondents had challenged the aforesaid award by way of writ petition No.2479/2012 before the High Court and vide order dated 10.1.2013 the writ petition was dismissed. Thereafter neither writ appeal nor SLP was filed by the respondents, hence the award dated 6.10.2005 had attained finality.

4. When the award dated 6.10.2005 was not complied with the father of the petitioner and others have approached the Labour Court

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again seeking arrears of wages from 10.3.2003 to 31.8.2015 and the case was registered as case No.41/ID/2015.

5. Vide order dated 25.10.2017 in view of the judgment passed by the Apex Court in case of Ram Naresh Rawat vs. Sri Ashwani Ray & others reported in (2017) 3 SCC 436 the respondents have classified late Ramdas Mesrey as class-IV (Helper) in the minimum pay-scale of Rs.4440-7440+GP 1300/- and also granted permission for payment of difference of salary w.e.f 10.3.2003.

6. Alas Ramdas Mesrey expired on 24.2.2018 while working as Helper. The mother of the petitioner Smt.Sindhu Mesrey has applied for the benefit of arrears of salary and compassionate appointment for this petitioner. It writ appeal pleaded in the representation that Ramdas Mersey expired on 24.2.20218 leaving behind wife Sindhu Mesrey, aged about 38 years, daughter Jagriti Mesrey, aged about 21 years and the petitioner aged about 19 years and no one in the family is working in any govt. service, corporation, local body etc. According to the petitioner his case was liable to be considered under the policy dated 29.9.2014 and as amended on 31.8.2016.

7. Vide letter dated 14.11.2018 the Executive Engineer sought instructions from the Chief Engineer in respect of grant of compassionate appointment to the petitioner as his father was neither a regular employee nor working in the contingency establishment . Vide letter dated 8.5.2018 the Chief Engineer has turned down the claim of the petitioner on the ground that at the time of death his father Ramdas Mesrey was working as daily rated employee, hence he is not entitled for compassionate appointment, hence the present petition before this Court.

8. The respondents have filed the reply suo moto in advance without issuing notice in this petition contending that in compliance of the order of the Labour Court and the directions issued by the Apex Court in the case of Ram Naresh Rawat (supra) all the benefits had been given to the father of the petitioner. Since he was appointed as daily rated employee without undergoing regular selection procedure , therefore, in view of the law laid down in the case of State of

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Karnataka vs. Umadevi reported in (2006) 4 SCC 1, the petitioner is not entitled for compassionate appointment. It is further submitted that at the time of death the father of the petitioner was working as daily rated employee classified as permanent and daily rated employees working in the State Government departments are not treated as regular employees, hence their dependents are not eligible for compassionate appointment under policy prevailing , hence the petition is liable to be dismissed.

I have heard the learned counsel for the parties and perused the record.

9. The State Govt. came up with the policy dated 29.9.2014 for grant of compassionate appointment to one of the dependents of the deceased Government employee. Clause 11 of the policy deals with the payment of one time ex-gratia payment of compensation in lieu of compassionate appointment to the family of the deceased employee who was getting the wages from the contingency establishment fund or working as daily rated employee. Clause 11.1 is reproduced below:

11- dk;ZHkkfjr vkdfLedrk ,oa nSfud osru Hkksfx;ksa gsrq izko/kku 11-1 dk;[email protected] fuf/k ls osru ikus okys ,oa nSfud osruHkksxh deZpkfj;ksa ds fnoaxr gksus ij vuqdaik fu;qfDRk dh ik=rk ugha gksxh ijUrq muds ifjokj ds vkfJr ukekafdr lnL; dks ,deq'r :i;s 2-00 yk[k ¼:i;s nks yk[k½ dh jkf'k vuqdaik vuqnku ds uke ls nh tk,xhA mlesa xzsT;wVh dh jkf'k lfEefyr ugha gksxhA bl jkf'k dk Hkqxrku lacaf/kr foHkkx ls dk;[email protected] ds en ds varxZr osru en ls fd;k tkosxkA

10. By way of amendment dated 31.8..2016 the Government has decided that one of the dependent of the deceased employee getting salary from the contingency fund are also entitled for compassionate appointment.

11. The father of the petitioner late Ramdas Mesrey was initially appointed as daily rated employee. Vide order dated 10.3.2003 he was classified as Helper. Thereafter, he approached the Labour Court for grant of regular pay scale equivalent to permanent employee and

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thereafter vide award dated 6.10.2005 the Labour Court has directed for grant of wages and other benefits payable to the State Government permanent employee with effect from the date of classification as permanent employee i.e. 10.3.2003. When the arrears of the salary were not given he approached the Labour Court. In view of the law laid down by the Apex Court in the case of Ramnaresh Rawat (supra) late Ramdas Mesrey was given the minimum pay scale of Helper in the pay scale of Rs.4440-7440+ GP Rs.1300/ without increment plus DA and grade pay of the 6 th Pay Commission, therefore, at the time of death he was no more a daily rated employee. The Apex Court in the case of Ramnaresh Rawat (supra) has also held that the permanent employee has the right to receive the minimum pay in a grade pay at the same time with no increment and it is only the regularization in service which would entail grant of increment etc. in the pay scale. The employee working in the Government department who has been classified as a permanent employee and getting the minimum pay scale upon his death his/ her one of the dependents would not be deprived of compassionate appointment. There cannot be a discrimination between the dependent of the deceased Government employee, the dependent of deceased contingency paid employee and the dependent of permanent classified employee. If permanent classified employee dies in harness his dependents would also suffer sudden crises due to death of sole earning member. There cannot be any discrimination between similarly placed persons by the State Government , therefore, the respondents have wrongly rejected the claim of the petitioner treating his late father as daily rated employee in the establishment. Hence, Annexure P/1 & P/2 are hereby quashed. The matter is remitted back to the respondents to consider the claim for compassionate appointment under the policy dated 29.9.2014 and amended on 31.8.2016.

12. The petition is allowed. No order as to cost.

                                                  (VIVEK RUSIA)
              Digitally signed by HARI KUMAR
      hk/     C G NAIR                                JUDGE
              Date: 2021.07.31 16:46:51 +05'30'