Madhya Pradesh High Court
Devendra Giri vs The State Of Madhya Pradesh on 1 April, 2022
Author: Chief Justice
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE RAVI MALIMATH,
CHIEF JUSTICE
&
HON'BLE SHRI JUSTICE DINESH KUMAR PALIWAL
ON THE 1st OF APRIL, 2022
WRIT APPEAL No. 311 of 2021
Between:-
DEVENDRA GIRI, S/O LATE BHEEMGIR GIRI,
AGED ABOUT 25 YEARS, OCCUPATION:
UNEMPLOYED, R/o LONIA BYPASS DISTRICT
SEONI (MADHYA PRADESH)
.....APPELLANT
(BY SHRI RAUNAK YADAV - ADVOCATE )
AND
1. THE STATE OF MADHYA PRADESH THR. ITS
SECRETARY DEPARTMENT OF PUBLIC HEALTH
ENGINEERING VALLABH BHAWAN BHOPAL
(M.P.) (MADHYA PRADESH)
2. CHIEF ENGINEER PUBLIC HEALTH
ENGINEERING DEPARTMENT JABALPUR
(MADHYA PRADESH)
3. S U P E R I N T E N D E N T PUBLIC HEALTH
ENGINEERING DEPARTMENT PARYOJNA
MANDAL CHHINDWARA (MADHYA PRADESH)
4. EXECUTIVE ENGINEER PUBLIC HEALTH
ENGINEERING DEPARTMENT SEONI (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI SUYASH THAKUR - GOVERNMENT ADVOCATE )
Th is appeal coming on for admission this day, JUSTICE DINESH
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KUMAR PALIWAL passed the following:
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Digitally signed by AMITABH RANJAN
Date: 2022.04.06 09:46:03 IST ORDER
In this intra-court appeal filed by the appellant Devendra Giri a challenge
has been made to the order dated 15.02.2021 (Annexure A-1) passed by the
learned Single Judge in W.P. No. 24084 of 2019 (Devendra Giri Vs. State of
M.P. & Ors.) and the R.P. No. 255 of 2021 (Devendra Giri Vs. State of M.P.
& Ors.) preferred against order dated 15.02.2021 has been dismissed vide
order dated 09.03.2021 (Annexure A-2).
2. The grievance of the appellant/petitioner is that his father Late Shri
Bheemgir Giri was appointed on the post of Handpump Technician on
11.04.1984 in the work charge contingency establishment of Public Health
Engineering, Seoni. He was died in harness on 06.03.2015 after rendering
services for a period of almost 31 years. According to the appellant, his claim
for compassionate appointment has been rejected on 09.09.2019 and an amount
of Rs.2,00,000/- has been deposited in the account of his mother in the month
of August, 2019. His case was rejected on the ground that his father died on
06.03.2015, but the appellant made application on 31.08.2016 and therefore,
appellant/petitioner is not entitled to get compassionate appointment. It was also
contended that order dated 02.06.2015 and 09.09.2019 were served on him on
07.10.2019. Appellant submitted several representations for consideration of his
case for compassionate appointment, but his case was rejected on 09.09.2019.
3. In case of State of M.P. & Ors. Vs. Amit Shrivas reported in 2020(10)
SCC 496, Hon'ble Apex Court has considered the circulars dated 18.08.2008,
29.09.2014 and 31.08.2016 and learned Single Judge by placing reliance on the
judgment of Amit Shrivas was of the view that in case of Amit Shrivas (Supra)
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Hon'ble Apex Court has made it clear that petitioners are only entitled to the
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compassionate grant and not for compassionate appointment, therefore, the
Date: 2022.04.06 09:46:03 IST
claim of the petitioner/appellant has rightly been rejected by the department and
dismissed the writ petition and review petition.
4. We have heard, learned counsel for the parties and perused the
records.
5. We find that, in the communication dated 02.06.2015 (Annexure P-3) it
was specifically informed to the appellant/petitioner that since, his father was
working in the contingency establishment fund, therefore, there was no policy
with the State Government to offer compassionate appointment to the
dependent of the deceased who was working on the contingency paid
establishment fund. The provision is only to give compassionate grant.
6. Learned single Judge, after hearing the parties, recorded his findings
which are as under:
" 8. Having heard the learned counsel for the parties and on the
perusal of the record, it is noticed that the issue which the
petitioner is raising is already decided on the identical facts
situation considering the policy circular on which the petitioner
had relied upon, by the Hon'™ble Supreme Court in the matter
of State of M.P. and other vs. Amit Shrivas reported in 2020
(10) SCC 496. The Hon'ble Supreme Court has duly considered
the circulars dated 29.09.2014, 31.08.2016 as also the
subsequent circular dated 31.08.2017 and has examined
the claim of compassionate appointment on the death of a
work-charge and contingency paid employee in the light of the
aforesaid circulars and has held that the pending cases
before the date of 31.08.2016 circular would be decided only
in terms of the policy circular dated 29.9.2014. The
policy circular dated 29.09.2014 was the circular amending
the earlier policy dated 18.08.2008. In terms of the circular
dated 29.09.2014 such dependents of the deceased employees
working in Work-charge & Contingency Establishment are
eligible only for compassionate grant and not the
compassionate appointment. The Hon'ble Supreme Court has
also taken the view that the case for compassionate appointment
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is to be decided in terms of the applicable policy existing as on
the date of demise unless a subsequent policy is made
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applicable retrospectively. The Hon'ble Supreme Court in the
case of Amit Shrivas (supra) has held as under:
"15. In our opinion, the only issue which has to be
examined is whether the late father of the respondent who
admittedly was employed as a work-charged/contingency
employee in the Tribal Welfare Department was entitled to
the compassionate appointment as per the existing policy on
the date of his demise.
16. It is trite to say that there cannot be any inherent right
to compassionate appointment but rather, it is a right based
on certain criteria, especially to provide succour to a needy
family. This has to be in terms of the applicable policy as
existing on the date of demise, unless a
subsequent policy is made applicable retrospectively.
[State of Gujarat v. Arvindkumar T. Tiwari, (2012) 9 SCC
545 : (2012) 2 SCC (L&S) 795] Insofar as providing
succour is concerned, unfortunately, since the demise of the
late father of the respondent, 11 years have passed and
really speaking, the aspect of providing succour to the
family immediately does not survive. We have still
examined the matter in the conspectus of the applicable
policy. It is not in question that the Policy prevailing was
one dated 18-8-2008. Clause 12.1 clearly proscribes work-
charge/contingency fund and daily wager employees from
compassionate appointment. The gravamen of the
submission of the respondent is based on the classification
of his late father as a permanent employee on account of
having worked for more than 15 years and the consequent
regularisation of his service."
9. Considering the claim of such applicant in the light of the
circulars dated 18.08.2008, 29.09.2014 and 31.08.2016, the
Hon'™ble Supreme Court has held as under:
"26. We may, however, notice a subsequent development
arising from certain additional documents placed
on record pertaining to the amendment to the policy of 18-
8-2008 vide Circular dated 29-9-2014. In terms of this
circular, the compassionate grant amount was increased
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from Rs 1,00,000 to Rs 2,00,000. Another Circular was
issued on 31-8-2016, through which, a decision was taken
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Date: 2022.04.06 09:46:03 IST that the dependents of the deceased employees drawing a
salary from the work-charged/contingency fund would be
entitled to compassionate appointment, but it was clarified
vide Circular dated 21-3-2017 that pending cases before
the date of the 31-8-2016 Circular would be decided only in
terms of the amended Policy dated 29-9-2014. That being
the position, this last circular also does not come to the aid
of the respondent as it would amount to making the policy
retrospectively applicable, while the circular says to the
contrary.
27. We, however, are of the view that we can provide some
succour to the respondent in view of the Circular dated 21-
3-2017, the relevant portion of which reads as under:
2. In this regard, it is clarified that the
compassionate appointment for the employees of work-
charge and contingency fund is in force also w.e.f. 31-
8-2016. And the cases pending before this date, will be
decided only in accordance with the directions issued
for compassionate appointment on 29-9-2014 i.e. they
will be eligible only for compassionate grant and not
the compassionate appointment. The proceedings
be ensured accordingly.
28. The aforesaid circular records that pending cases will
be decided in accordance with the directions issued for
compassionate appointment on 29-9-2014. The present case
is really not a pending case before the authority, but a
pending lis before this Court.
10. In view of the aforesaid reasons assigned in the judgment of
the Hon'ble Supreme Court in the case of Amit Shrivas (supra),
the petitioners are only entitled to the compassionate grant
and not compassionate appointment, therefore, the
respondents have not committed any error in rejecting
the petitioner'™s application for compassionate appointment."
7. Hon'ble the Supreme Court in the recent judgment dated 18.11.2021
passed in Civil Appeal No. 6903 of 2021 (State of Madhya Pradesh & Ors. Vs.
Ashish Awasthi) with Civil Appeal No. 6904 of 2021 (State of Madhya Pradesh
& Ors. Vs. Baalendu Yadav) has held as under:
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4. The deceased employee died on 08.10.2015. At the time of
death, he was working as a work charge employee, who was
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paid the salary from the contingency fund. As per the
policy/circular prevalent at the time of the death of the deceased
employee, i.e., policy/circular No.C-3-12/2013/1-3 dated
29.09.2014 in case of death of the employee working on work
charge, his dependents/heirs were not entitled to the appointment
on compassionate ground and were entitled to Rs. 2 lakhs as
compensatory amount. Subsequently, the policy came to be
amended vide circular dated 31.08.2016, under which even in
the case of death of the work charge employee, his
heirs/dependents will be entitled to the appointment on
compassionate ground. Relying upon the subsequent
circular/policy dated 31.08.2016, the Division Bench of the High
Court has directed the appellants to consider the case of the
respondent for appointment on compassionate ground. As per the
settled preposition of law laid down by this Court for
appointment on compassionate ground, the policy prevalent at
the time of death of the deceased employee only is required to be
considered and not the subsequent policy.
4.1 In the case of Indian Bank and Ors. Vs. Promila and Anr.,
(2020) 2 SCC 729, it is observed and held that claim for
compassionate appointment must be decided only on the basis of
relevant scheme prevalent on date of demise of the employee and
subsequent scheme cannot be looked into. Similar view has been
taken by this Court in the case of State of Madhya Pradesh and
Ors. Vs. Amit Shrivas, (2020) 10 SCC 496. It is required to be
noted that in the case of Amit Shrivas (supra) the very scheme
applicable in the present case was under consideration and it
was held that the scheme prevalent on the date of death of the
deceased employee is only to be considered. In that view of the
matter, the impugned judgment and order passed by the Division
Bench is unsustainable and deserves to be quashed and set
aside.
8. In view of the aforesaid, appellant/petitioner is not found entitled as
there was no policy of compassionate appointment to the dependent of the
deceased employee who was working on contingency paid establishment.
9. Thus, we are of the view that, learned Single Judge has not commit any
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error in dismissing the W.P. No. 24084 of 2019 and R.P. No. 255 of 2021 as
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Date: 2022.04.06 09:46:03 IST
the petitioner was only entitled to compassionate grant and not to
compassionate appointment.
10. Taking into consideration the over all facts and circumstances, we
hold that the learned Single Judge has rightly declined to invoke the equitable
jurisdiction under Article 226 of the Constitution of India in favour of
appellant/petitioner and also in dismissing in review petition. Accordingly the
writ appeal is dismissed.
(RAVI MALIMATH) (DINESH KUMAR PALIWAL)
CHIEF JUSTICE JUDGE
Amitabh
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Digitally signed by AMITABH RANJAN
Date: 2022.04.06 09:46:03 IST
