Shri Ram Parteti vs The State Of Madhya Pradesh
2022 Latest Caselaw 548 MP

            HIGH COURT OF MADHYA PRADESH,
                        W.P.No.28956/2021
       (Shri Ram Parteti Vs. State of Madhya Pradesh and Ors.)
                                  (1)


Jabalpur, dated : 12.01.2022

      Shri Aniruddha Prasad Pandey, Advocate for the petitioner.
      Shri Anuj Shrivastava, learned Panel Lawyer for the
respondents/State.

Heard on the question of admission.

By way of this petition, under Article 226 of the Constitution of India, the petitioner assailed the legality, validity and propriety of the order dated 22.08.2017 (Annexure P/7) passed by the respondent No.4 whereby the claim of the petitioner for grant of compassionate appointment has been rejected.

Brief facts leading to filing of this case are that the father of the petitioner was working on the post of Peon as a Work Charged Contingency Paid Employee, who unfortunately died on 25.12.2008 in harness during service. After his death, the elder son Shri Jayram Parteti applied for compassionate appointment on 11.02.2009. Since, the father of the petitioner late Galichand Parteti was working on the post of Work Charged Contingency Paid Employee, therefore, as per Policy dated 18.08.2008, Clause 12.1, the brother of the petitioner was not entitled for grant of compassionate appointment, therefore, accordingly vide letter dated 30.07.2009, the claim of Shri Jayram Parteti was rejected.

Thereafter, the present applicant namely Shri Ram Parteti applied for compassionate appointment on 01.11.2011. Again as per Policy dated 18.08.2008 Clause 12.01, he also did not have the eligibility, therefore, the application was rejected vide order dated 05.11.2011, which was duly communicated to the petitioner. Since, these two sons did not have the eligibility of compassionate appointment, as per order dated 07.04.2012, the widow of late Galichand Parteti i.e. mother of the petitioner Smt. Laxmi Bai Parteti was granted compensation as per policy amounting to Rs.1,00,000/-. Thereafter, the petitioner again approached this Court in W.P.No.7519/2017 and vide order HIGH COURT OF MADHYA PRADESH, W.P.No.28956/2021 (Shri Ram Parteti Vs. State of Madhya Pradesh and Ors.)

dated 30.06.2017, this Court again directed to consider the representation for grant of compassionate appointment in the light of amended Circular dated 31.08.2016. The respondents considered the claim of the petitioner again and vide the impugned order dated 22.08.2017 rejected the same on the ground that the claim of the petitioner has already been rejected on 05.11.2011 since he is not eligible for grant of compassionate appointment in view of the Policy dated 18.08.2008 Clause 12.1. Being aggrieved, the petitioner has assailed the order dated 22.08.2017, on the ground that as per amended Policy dated 31.08.2016, the petitioner is entitled for grant of compassionate appointment. Moreover, the petitioner is brilliant student and due to Covid-19 Pandemic, it has become difficult for the petitioner to survive as he does not have sufficient income. The rejection amounts violation of Article 14, 16 and 21 of the Constitution of India, hence this petition.

Per contra, learned Panel Lawyer appearing for the State opposed the prayer and submitted that appointment on compassionate grounds is an exception to the regular mode of recruitment, as it is intended to provide succor to the family of the deceased Government servant, which is thrown out of gear both financially and otherwise, due to the sudden death of the Government servant in harness. He further submitted that since the claim of the petitioner was rightly rejected in accordance with the Policy dated 18.08.2008, which prevailed at the time of death of the deceased employee, now after the amendment in the year 2016, the petitioner cannot claim the benefit as the amendment would not have retrospective applicability. Learned counsel for the State relied upon the judgment of the Apex Court in the case of Secretary to the Government, Department of Education (Primary) and others vs. Bheemesh @ Bheemappa, 2021 SCC online SC 1264 to contend that the Supreme Court has categorically clarified that the Policy, which HIGH COURT OF MADHYA PRADESH, W.P.No.28956/2021 (Shri Ram Parteti Vs. State of Madhya Pradesh and Ors.)

was in force at the time of death would be applicable. In absence of specific terms in the amended policy that the same would be applicable retrospectively, the claim of the petitioner has rightly been rejected. This petition is bereft of merit and substance and the same is liable to be dismissed.

Heard the learned counsel for the parties. Admittedly, the appointment on compassionate ground is an exception to the regular mode of recruitment as the same is intended to tide over the immediate distress of the family members of the deceased employee who died in harness while in service. The deceased employee died in the year 2008. The family was able to survive for more than 13 years. The Apex Court in the case of Bheemesh @ Bheemappa (supra) has laid down as under:-

"17. Keeping the above in mind, if we critically analyse the way in which this Court has proceeded to interpret the applicability of a new or modified Scheme that comes into force after the death of the employee, we may notice an interesting feature. In cases where the benefit under the existing Scheme was taken away or substituted with a lesser benefit, this Court directed the application of the new Scheme. But in cases where the benefits under an existing Scheme were enlarged by a modified Scheme after the death of the employee, this Court applied only the Scheme that was in force on the date of death of the employee. This is fundamentally due to the fact that compassionate appointment was always considered to be an exception to the normal method of recruitment and perhaps looked down upon with lesser compassion for the individual and greater concern for the rule of law.

18. If compassionate appointment is one of the conditions of service and is made automatic upon the death of an employee in harness without any kind of scrutiny whatsoever, the same would be treated as a vested right in law. But it is not so. Appointment on compassionate grounds is not automatic, but subject to strict scrutiny of various parameters including the financial position of the family, the economic dependence of the family upon the deceased employee and the avocation of the other members of the family. Therefore, no one can claim to have a vested right for appointment on compassionate grounds. This is why some of the decisions which we have tabulated above appear to have interpreted the applicability of revised Schemes differently, leading to conflict of opinion. Though there is a conflict as to whether the Scheme in force on the date of death of the employee would apply or the Scheme in force on the date of consideration of the application of appointment on HIGH COURT OF MADHYA PRADESH, W.P.No.28956/2021 (Shri Ram Parteti Vs. State of Madhya Pradesh and Ors.)

compassionate grounds would apply, there is certainly no conflict about the underlying concern reflected in the above decisions. Wherever the modified Schemes diluted the existing benefits, this Court applied those benefits, but wherever the modified Scheme granted larger benefits, the old Scheme was made applicable.

19. The important aspect about the conflict of opinion is that it revolves around two dates, namely, (I) date of death of the employee; and (ii) date of consideration of the application of the dependant. Out of these two dates, only one, namely, the date of death alone is a fixed factor that does not change. The next date namely the date of consideration of the claim, is something that depends upon many variables such as the date of filing of application, the date of attaining of majority of the claimant and the date on which the file is put up to the competent authority. There is no principle of statutory interpretation which permits a decision on the applicability of a rule, to be based upon an indeterminate or variable factor. Let us take for instance a hypothetical case where 2 Government servants die in harness on January 01, 2020. Let us assume that the dependants of these 2 deceased Government servants make applications for appointment on 2 different dates say 29.05.2020 and 02.06.2020 and a modified Scheme comes into force on June 01, 2020. If the date of consideration of the claim is taken to be the criteria for determining whether the modified Scheme applies or not, it will lead to two different results, one in respect of the person who made the application before June 1, 2020 and another in respect of the person who applied after June 01, 2020. In other words, if two employees die on the same date and the dependants of those employees apply on two different dates, one before the modified Scheme comes into force and another thereafter, they will come in for differential treatment if the date of application and the date of consideration of the same are taken to be the deciding factor. A rule of interpretation which produces different results, depending upon what the individuals do or do not do, is inconceivable. This is why, the managements of a few banks, in the cases tabulated above, have introduced a rule in the modified scheme itself, which provides for all pending applications to be decided under the new/modified scheme. Therefore, we are of the considered view that the interpretation as to the applicability of a modified Scheme should depend only upon a determinate and fixed criteria such as the date of death and not an indeterminate and variable factor.

20. Coming to the case on hand, the employee died on 8.12.2010 and the amendment to the Rules was proposed by way of a draft notification on 20.06.2012. The final notification was issued on 11.07.2012. Merely because the application for appointment was taken up for consideration after the issue of the amendment, the respondent could not have sought the benefit of the amendment. The Judgment of the Division Bench of the Karnataka High Court in Akkamahadevamma on which the Tribunal as well as the High Court placed reliance, was not applicable to the case of compassionate appointments, HIGH COURT OF MADHYA PRADESH, W.P.No.28956/2021 (Shri Ram Parteti Vs. State of Madhya Pradesh and Ors.)

as the amendment in Akkamahadevamma came as a result of the existing rule being declared to be ultra vires Articles 14 and 16 of the Constitution.

21. In view of the above, the appeal is allowed and the impugned order of the High Court as well as that of the Tribunal are set aside. The application of the respondent for compassionate appointment shall stand dismissed. There shall be no order as to costs."

In view of the categorical finding given by the Apex Court in the case of Bheemesh @ Bheemappa (supra) that merely because the application for appointment was taken up for consideration after the issue of amendment, the petitioner could not have sought the benefit of amendment. Admittedly, the claim of the petitioner was rejected in the year of 2011. Repeated representations/directions would not open a stale claim, which stood already closed in the year 2011. Accordingly finding no merit in this case, this writ petition is dismissed at the admission stage itself.

(S.A.Dharmadhikari) Judge vinay* VINAY KUMAR BURMAN 2022.01.17 16:10:36 +05'30'