Public Health Engineering ... vs Chandrabhan
2022 Latest Caselaw 1598 MP

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The High Court of Madhya Pradesh : Bench At Indore
DIVISION BENCH:   HON'BLE MR. JUSTICE VIVEK RUSIA &
                  HON'BLE MR. JUSTICE RAJENDRA KUMAR (VERMA)

                    Writ Appeal No.938/2020
Appellants   -             1.   State of Madhya Pradesh,
                                Through Principal Secretary,
                                Department of Public Health Engineering,
                                Vallabh Bhawan, Bhopal (M.P.)

                           2.   Engineer-in-Chief
                                Public Health Engineering,
                                Satpuda Bhawan, Bhopal (M.P.)

                           3.   Chief Engineer,
                                Public Health Engineering.
                                South Tukoganj, Indore (M.P.)

                           4.   Executive Engineer,
                                Public Health Engineering,
                                Musakhedi, Indore (M.P.)
                  versus

Respondent   -                  Sandeep S/o Late Dilip Bagul,
                                Age - 31 years
                                Occupation - Temporary Service
                                R/o 217 Bhuri Tekari,
                                Manavta Nagar, Indore (M.P.)

                    Writ Appeal No.957/2020
Appellants   -             1.   State of Madhya Pradesh,
                                Through Principal Secretary,
                                Public Health Engineering Department,
                                Vallabh Bhawan, Bhopal (M.P.)

                           2.   Engineer-in-Chief
                                Public Health Engineering Department,
                                Satpuda Bhawan, Bhopal (M.P.)

                           3.   Chief Engineer,
                                Public Health Engineering Department.
                                South Tukoganj, Indore (M.P.)

                           4.   Executive Engineer,
                                Public Health Engineering Department,
                                Musakhedi, Indore (M.P.)
                  versus

Respondent   -                  Chandrabhan
                                S/o Late Digvijaysingh Rathore
                                Age - 26 years
                                Occupation - Nil, R/o Gaini Road, Shivgarh
                                Tehsil Sailana, District - Ratlam (M.P.)
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Indore, dated 04.02.2022
As per Vivek Rusia, J:
         Heard through Video Conferencing.
         Shri Shrey Raj Saxena, learned Deputy Advocate for the
appellant / State.
         Ms. Sudha Shrivastava, learned counsel for the the
respondents.
         Regard being had to the similitude in the controversy
involved in the present case, with the consent of the parties,
matters were analogously heard and decided by this common
order.
                            ORDER

The appellant / State has filed the present Writ Appeals under Section 2(1) Madhya Pradesh Uchch Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 against the common order dated 14.01.2020 passed by the Writ Court by which both the writ petitions were allowed by directing the respondents therein to consider the claim of the writ petitioner for compassionate appointment under the amended policy dated 31.08.2016.

Writ Appeal No.938/2020 The father of respondent / writ petitioner late Dilip Bagul was working as a Driver under the Work Charged & Contingency Paid Establishment in the Public Health Engineering Department of the State of Madhya Pradesh and died on 19.08.2015. The mother of the respondent / writ petitioner submitted an application on 06.10.2015 seeking compassionate appointment of respondent. The respondent / Department therein has rejected the claim of the petitioner on the ground that under the Policy dated

29.09.2014, the dependent of deceased employee working under the Work Charged & Contingency Paid Establishment is not entitled for compassionate appointment. The claim of the petitioner was that the aforesaid policy has been amended vide Circular dated 31.08.2016 in which the dependent of deceased employee working Work Charged & Contingency Paid Establishment has been held entitled for compassionate appointment, therefore, his claim is liable to be considered under the amended Policy.

W.A. No.957/2020 The father of the respondent / writ petitioner, who was working under the Work Charged & Contingency Paid Establishment in the Public Health Engineering Department of the State of Madhya Pradesh died on 04.02.2014. Thereafter, the respondent / writ petitioner submitted an application for compassionate appointment before the respondent / Department but the claim of the respondent / writ petitioner has been rejected by the Department for grant of compassionate appointment on the ground that under the Policy dated 29.09.2014, the dependent of deceased employee working under the Work Charged & Contingency Paid Establishment is not entitled for compassionate appointment. The claim of the petitioner was that the aforesaid policy has been amended vide Circular dated 31.08.2016 in which the dependent of deceased employee working Work Charged & Contingency Paid Establishment has been held entitled for compassionate appointment, therefore, his claim is liable to be considered under the amended Policy.

The Writ Court by placing reliance upon a judgment delivered in the case of Ashish Awasthi v/s The State of Madhya

Pradesh (Writ Appeal No.1559/2018) decided on 12.12.2018 allowed the writ petitions by directing the Department to consider the claim of the petitioners therein in light of the policy dated 31.08.2016.

The Apex Court in Civil Appeal No.6903/2021 (The State of Madhya Pradesh v/s Ashish Awasthi) vide order dated 18.11.2021 has set aside the order passed in W.A. No.1559/2018. The Apex Court has held that the case of dependent is liable to be considered in view of the Policy dated 29.09.2014 if the death took place prior to amended Circular dated 31.08.2016. In the present case, death of father of the respondent took place on 19.08.2015 i.e. is prior to 31.08.2016, hence, the claim of the petitioner has rightly been rejected under the Policy dated 29.09.2014. The relevant part of the judgment is reproduced below:-

"4. The deceased employee died on 08.10.2015. At the time of death, he was working as a work charge employee, who was 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. 4.2. The submission on behalf of the respondent that after the impugned judgment and order passed by the High Court, the respondent has been appointed and therefore his appointment may not be disturbed, deserves rejection. Once the judgment and order passed by the Division bench under which respondent is appointed is quashed and set aside, necessary consequences shall follow and the appointment of the respondent, which was pursuant to the impugned judgment and order passed by the Division Bench of the High Court cannot be protected."

In view of the above, the common order dated 14.01.2020 passed by the Writ Court in both the writ petitions is set aside.

The Writ Appeals stand allowed.

   (VIVEK RUSIA)                               (RAJENDRA KUMAR (VERMA))
     JUDGE                                             JUDGE

Ravi
Digitally signed by RAVI PRAKASH
Date: 2022.02.07 10:18:26 +05'30'