Madhya Pradesh High Court
Harish Raikwar vs The State Of Madhya Pradesh on 27 October, 2022
Author: Gurpal Singh Ahluwalia
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 27th OF OCTOBER, 2022
WRIT PETITION No.18489 OF 2017 (S)
Between:-
HARISH RAIKWAR S/O LATE SHRI
GHANSHYAM RAIKWAR, AGE - 25
YEARS, OCCUPATION NIL, R/O -
BEHIND BRIGHT CAREER
SCHOOL, SHIKSHAK COLONY,
VIDISHA, MADHYA PRADESH.
........PETITIONER
(BY SHRI BHAGWAN RAJ PANDEY - ADVOCATE)
AND
1. STATE OF MADHYA PRADESH,
THROUGH PRINCIPAL
SECRETARY, DEPARTMENT OF
MATS-UDYOG GOCERNMENT OF
MADHYA PRADESH, VALLABH
BHAWAN BHOPAL MADHYA
PRADESH.
2. DIRECTOR, MATS-UDYOG
DEPARTMENT OF MADHYA
PRADESH, VALLABH BHAWAN
BHOPAL MADHYA PRADESH.
3. ASSISTANT DIRECTOR
2
DEPARTMENT OF MATS-UDYOG,
VIDISHA MADHYA PRADESH.
4. COLLECTOR, VIDISHA DISTRICT
VIDISHA MADHYA PRADESH.
........RESPONDENTS
(BY SHRI A.K. NIRANKARI - GOVERNMENT ADVOCATE)
----------------------------------------------------------------------------------------
This petition coming on for hearing this day, the Court passed the
following:
ORDER
This petition under Article 226 of the Constitution of India has
been filed seeking the following reliefs:-
"a. That, this Hon'ble Court may kindly be pleased to
allow this writ petition and impugned order
(Annexure P-1) may kindly be quashed and
respondents may kindly be directed to appoint the
petitioner on compassionate basis.
b. That, the clause 12.1 of the policy dated 28-08-08
(Annexure P-6) may kindly also be quashed, in
the interest of justice.
c. Any other writ order, or direction as this Hon'ble
Court may deem fit in the facts and
circumstances of the case be granted costs be
awarded."
2. It is submitted by the counsel for the petitioner that initially the
father of the petitioner was engaged in Mats-udyog Department on daily
wages and later on, by order dated 19/2/1990 his services were
regularized on the post of Chowkidar. The father of the petitioner died in
harness on 14/3/2009 and he was survived by five persons, i.e. two
sisters, two brothers including the petitioner and his mother. Accordingly,
the petitioner moved an application on 20/7/2009 for appointment on
compassionate ground and the said application was rejected by order
dated 24/8/2009. Being aggrieved by the said order, the petitioner filed
Writ Petition No.6035/2012 before this Court. The respondents filed their
return and submitted that the father of the petitioner was regularized
under the work charged contingency scheme and he was drawing his
salary from contingency fund and, therefore, as per Clause 12.1 of the
policy dated 28/8/2008 issued by GAD, the petitioner was not entitled for
appointment on compassionate ground. Writ Petition No.6035/2012 was
allowed by order dated 21/6/2017 and the respondents were directed to
consider the case of the petitioner afresh on the basis of the documents
appended by the petitioner and if required, the respondents may seek
further documents from the petitioner. It is submitted that now the
respondents have once again rejected the claim of the petitioner by order
dated 25/9/2017 and thus, this petition has been filed on the ground that
in fact the father of the petitioner was not regularized under work-
charged contingency scheme, but was regularized as a regular employee.
3. Per contra, the petition is vehemently opposed by the counsel for
the State. It is submitted by the counsel for the respondents that
appointment on compassionate ground is not a regular mode of
appointment. It is a speedy remedy provided to the dependents of the
employee, so that they can tied over the financial crises, which has arisen
because of untimely death of the employee. The father of the petitioner
had died in the year 2009 and 13 long years have passed. If the petitioner
and his family can survive for 13 long years, then they cannot claim
appointment on compassionate ground. Further, the petitioner has not
disclosed that whether he is a married person or not and whether he is
having any children or not. As per the cause-title of Writ Petition
No.6035/2012, the petitioner was 20 years of age. Thus, it is clear that
now he must be beyond the age of 30 years. It is not his case that he is an
unemployed person having no source of income.
4. Heard learned counsel for the parties.
5. Before considering the merits of the case, this Court would like to
consider the effect of delay.
6. It is submitted by the counsel for the petitioner that there is no
delay on the part of the petitioner. The father of the petitioner died in the
year 2009. He immediately moved an application for appointment on
compassionate ground in the year 2009 itself and the application was also
rejected in the year 2009. However, the petitioner filed the writ petition
in the year 2012, but the said writ petition was allowed and the matter
was remanded back. The impugned order was passed in the year 2017
and the petition has also been filed in the year 2017. Thus, when there is
no fault on the part of the petitioner, then his claim may not be dismissed
on the ground that 13 long years have passed.
7. Considered the submissions of the petitioner.
8. Compassionate appointment is an exception to the general rule.
Articles 14 and 16 of the Constitution of India provides that employment
in the government or public sector should be open to all eligible
candidates, who may come forward to apply and compete with each
other. However, the appointment on compassionate ground is an
exception to face the extraordinary compelling circumstances due to
death of sole breadwinner. The Supreme Court in the case of Steel
Authority of India Ltd. Vs. Gouri Devi by judgment dated 18/11/2021
passed in Civil Appeal No.6910/2021 has held that delay in pursuing
claim and approaching the court would militate against claim for
compassionate appointment as very objective of providing immediate
amelioration to family would stand extinguished. In the case of State of
J & K and others Vs. Sajad Ahmed Mir reported in (2006) 5 SCC 766,
the Supreme Court has held that: -
"11. We may also observe that when the Division Bench of the
High Court was considering the case of the applicant holding
that he had sought 'compassion', the Bench ought to have
considered the larger issue as well and it is that such an
appointment is an exception to the general rule. Normally, an
employment in Government or other public sectors should be
open to all eligible candidates who can come forward to apply
and compete with each other. It is in consonance with Article
14 of the 5 Constitution. On the basis of competitive merits, an
appointment should be made to public office. This general rule
should not be departed except where compelling
circumstances demand, such as, death of sole bread earner and
likelihood of the family suffering because of the set back.
Once it is proved that in spite of death of bread earner, the
family survived and substantial period is over, there is no
necessity to say 'goodbye' to normal rule of appointment and to
show favour to one at the cost of interests of several others
ignoring the mandate of Article 14 of the Constitution.
12. In State of Haryana and Ors. v. Rani Devi and Anr., it
was held that the claim of applicant for appointment on
compassionate ground is based on the premise that he was
dependent on the deceased employee. Strictly this claim
cannot be upheld on the touchstone of Article 14 or 16 of the
Constitution. However, such claim is considered reasonable as
also allowable on the basis of sudden crisis occurring in the
family of the employee who had served the State and died
while in service. That is why it is necessary for the authorities
to frame rules, regulations or to issue such administrative
instructions which can stand the test of Articles 14 and 16.
Appointment on compassionate ground cannot be claimed as a
matter of right.
13. In Life Insurance Corporation of India v. Asha
Ramchandra Ambekar (Mrs.) and Anr., it was indicated that
High Courts and Administrative Tribunals cannot confer
benediction impelled by sympathetic considerations to make
appointments on compassionate grounds when the regulations
framed in respect thereof do not cover and contemplate such
appointments.
14. In Umesh Kumar Nagpal v. State of Haryana and Ors.,
it was ruled that public service appointment should be made
strictly on the basis of open invitation of applications and on
merits. The appointment on compassionate ground cannot be a
source of recruitment. It is merely an exception to the
requirement of law keeping in view the fact of the death of
employee while in 6 service leaving his family without any
means of livelihood. In such cases, the object is to enable the
family to get over sudden financial crisis. Such appointments
on compassionate ground, therefore, have to be made in
accordance with rules, regulations or administrative
instructions taking into consideration the financial condition of
the family of the deceased. This favorable treatment to the
dependent of the deceased employee must have clear nexus
with the object sought to be achieved thereby, i.e. relief against
destitution. At the same time, however, it should not be
forgotten that as against the destitute family of the deceased,
there are millions and millions of other families which are
equally, if not more, destitute. The exception to the rule made
in favour of the family of the deceased employee is in
consideration of the services rendered by him and the
legitimate expectation, and the change in the status and affairs
of the family engendered by the erstwhile employment, which
are suddenly upturned.
15. In Smt. Sushma Gosain and Ors. v. Union of India and
Ors. it was observed that in claims of appointment on
compassionate grounds, there should be no delay in
appointment. The purpose of providing appointment on
compassionate ground is to mitigate the hardship due to death
of the bread-earner in the family. Such appointments should,
therefore, be provided immediately to redeem the family in
distress.
16. Recently, in Commissioner of Public Instructions and
Ors. v. K.R. Vishwanath, one of us (Pasayat, J.) had an
occasion to consider the above decisions and the principles
laid down therein have been reiterated.
17. In the case on hand, the father of the applicant died in
March, 1987. The application was made by the applicant after
four and half years in September, 1991 which was rejected in
March, 1996. The writ petition was filed in June, 1999 which
was dismissed by the learned single Judge in July, 2000. When
the Division Bench decided the matter, more than fifteen years
had 7 passed from the date of death of the father of the
applicant. The said fact was indeed a relevant and material fact
which went to show that the family survived in spite of death
of the employee. Moreover, in our opinion, the learned single
Judge was also right in holding that though the order was
passed in 1996, it was not challenged by the applicant
immediately. He took chance of challenging the order in 1999
when there was inter-departmental communication in 1999.
The Division Bench, in our view, hence ought not to have
allowed the appeal."
(Underline Supplied)
9. It is the case of the respondents that the father of the petitioner was
regularized under the work-charged contingency scheme. The Supreme
Court in the case of Secretary to Govt. Deptt. Of Education (Primary)
Vs. Bheemesh reported in 2021 SCC Online 1264 has held as under :
12. But we do not consider it necessary to do so. It is no doubt
true that there are, as contended by the learned senior Counsel
for the respondent, two lines of decisions rendered by Benches
of equal strength. But the apparent conflict between those two
lines of decisions, was on account of the difference between an
amendment by which an existing benefit was withdrawn or
diluted and an amendment by which the existing benefit was
enhanced. The interpretation adopted by this Court varied
depending upon the nature of the amendment. This can be seen
by presenting the decisions referred to by the learned senior
counsel for the respondent in a tabular column as follows:
Citation Scheme in force Modified Decision of this
on the date of Scheme which Court
death of the came into force
Government after death
servant
State Bank of The Scheme of The 1996 Rejecting the
India v. Jaspal the year 1996, Scheme was claim of the wife
Kaur (2007) 9 which made the subsequently of the deceased
SCC 571 [a two financial modified by employee, this
member Bench] condition of the policy issued in Court held that
family as the 2005, which laid the application
main criterion, down few of the dependant
was in force, on parameters for made in the year
the date of death determining 2000, after the
of the employee penury. One of death of the
in the year 1999. the parameters employee in the
was to see if the year 1999,
income of the cannot be
family had been decided on the
reduced to less basis of a
than 60% of the Scheme which
salary drawn by came into force
the employee at in the year 2005.
the time of
death. Therefore,
the wife of the
deceased
employee
claimed the
consideration of
the application
on the basis of
parameters laid
down in the
policy of the
year 2005.
State Bank of The employee But with effect This Court held
India v. Raj died on from 04.08.2005 that the
Kumar (2010) 11 1.10.2004 and a new Scheme application could
SCC 661 [a two the applications for payment of be considered
member Bench] for exgratia lump- only under the
compassionate sum was new Scheme, as
appointment introduced in the it contained a
were made on place of the old specific
6.06.2005 and Scheme. The provision
14.06.2005. On new Scheme relating to
the date of death contained a pending
and on the date provision to the applications.
of the effect that all
applications, a applications
Scheme known pending under
as compassionate the old Scheme
appointment will be dealt with
Scheme was in only in
force. accordance with
the new Scheme.
MGB Gramin The employee However, a new This Court took
Bank v. Chakra died on Scheme dated the view that the
warti 19.04.2006 and 12.06.2006 came new Scheme
Singh (2014) 13 the application into force on alone would
SCC 583 [a two for appointment 6.10.2006, apply as it
member Bench] made on providing only contained a
12.05.2006. A for ex gratia specific
scheme for payment instead provision which
appointment on of compassionate mandated all
compassionate appointment. pending
grounds was in applications to
force on that be considered
date. under the new
Scheme.
Canara The employee The 1993 This Court
Bank v. M. died on Scheme was dismissed the
Mahesh 10.10.1998 and substituted by a appeals filed by
Kumar (2015) 7 the application Scheme for the Bank on
SCC 412 [a two for appointment payment of ex account of two
member Bench] on gratia in the year important
compassionate 2005. But by the distinguishing
grounds, was time the 2005 features,
made under the Scheme was namely, (i) that
Scheme of the issued, the the application
year 1993. It was claimant had for appointment
rejected on already on
30.06.1999. The approached the compassionate
1993 Scheme High Court of grounds was
was known as Kerala by way of rejected in the
"Dying in writ petition and year 1999 and
Harness succeeded before the rejection
Scheme." the learned order was set
Single Judge aside by the
vide a Judgment High Court in
dated the year 2003
30.05.2003. The much before the
Judgment was compassionate
upheld by the appointment
Division Bench Scheme was
in the year 2006 substituted by an
and the matter ex gratia Scheme
landed up before in year 2005;
this Court and (ii) that in
thereafter. In the year 2014,
other words, the the original
Scheme of the scheme for
year 2005 came appointment on
into compassionate
force : (i) after grounds stood
the rejection of revived, when
the application the civil appeals
for were decided.
compassionate
appointment
under the old
scheme;
and (ii) after the
order of rejection
was set aside by
the Single Judge
of the High
Court
Indian The employee A new Scheme In the light of the
Bank v. Promila died on was brought into decision
(2020) 2 SCC 15.01.2004 and force on in Canara
729 [a two the application 24.07.2004 after Bank v. M.
member Bench] for appointment the death of the Mahesh Kumar,
was made by his employee. Under this Court held
minor son on this Scheme an that the case of
24.01.2004. On ex gratia the claimant
these dates, a compensation cannot be
circular bearing was provided examined in the
No. 56/79 dated for, subject to context of the
4.04.1979 which certain subsequent
contained a conditions. After Scheme and that
Scheme for the coming into since the family
appointment on force of the new had taken full
compassionate Scheme, the gratuity under
grounds was in claimant was the old scheme,
force. But the directed by the they were not
Scheme provided bank to submit a entitled to seek
for appointment, fresh application compassionate
only for those under the new appointment
who do not opt Scheme. The even under the
for payment of claimant did not old Scheme.
gratuity for the apply under the
full term of new Scheme, as
service of he was interested
employee who only in
died in harness. compassionate
appointment and
not monetary
benefit.
N.C. Under the But by virtue of After taking note
Santosh v. State existing Scheme an amendment to of a reference
of referable to Rule the proviso to made in State
Karnataka (2020 5 of the Rule 5, a minor Bank of
) 7 SCC 617 (a Karnataka Civil dependant India v. Sheo
three Member Services should apply Shankar
Bench) (Appointment on within one year Tewari to a
Compassionate from the date of larger bench, a
Grounds) Rules, death of the three member
1999, a minor Government Bench of this
dependant of a servant and must Court held
deceased have attained the in N.C.
Government age of 18 years Santosh that the
employee may on the date of norms prevailing
apply within one making the on the date of
year from the application. consideration of
date of attaining Applying the the application
majority. amended should be the
provisions, the basis for
appointment of consideration of
persons already the claim for
made on compassionate
compassionate appointment.
grounds, were The Bench
cancelled by the further held that
appointing the dependant of
authority which a government
led to the employee, in the
challenge before absence of any
this Court. vested right
accruing on the
date of death of
the government
employee, can
only demand
consideration of
his application
and hence he is
disentitled to
seek the
application of
the norms
prevailing on the
date of death of
the government
servant.
13. Apart from the aforesaid decisions, our attention was also
drawn to the decision of the three member Bench in State of
Madhya Pradesh v. Amit Shrivas. But that case arose out of a
claim made by the dependant of a deceased Government
servant, who was originally appointed on a work charged
establishment and who later claimed to have become a
permanent employee. The Court went into the distinction
between an employee with a permanent status and an employee
with a regular status. Despite the claim of the dependant that
his father had become a permanent employee, this Court held
in that case that as per the policy prevailing on the date of
death, a work charged/contingency fund employee was not
entitled to compassionate appointment. While holding so, the
Bench reiterated the opinion in Indian Bank v. Promila.
14. The aforesaid decision in Amit Shrivas (supra) was
followed by a two member Bench of this Court in the yet to be
reported decision in the State of Madhya Pradesh v. Ashish
Awasthi decided on 18.11.2021.
15. Let us now come to the reference pending before the larger
Bench. In State Bank of India v. Sheo Shankar Tewari (supra),
a two member Bench of this Court noted the apparent conflict
between State Bank of India v. Raj Kumar and MGB Gramin
Bank on the one hand and Canara Bank v. M. Mahesh
Kumar on the other hand and referred the matter for the
consideration of a larger Bench. The order of reference to a
larger Bench was actually dated 8.02.2019.
16. It was only after the aforesaid reference to a larger Bench
that this Court decided at least four cases, respectively
in (i) Indian Bank v. Promila; (ii) N.C. Santhosh v. State of
Karnataka; (iii) State of Madhya Pradesh v. Amit Shrivas;
and (iv) State of Madhya Pradesh v. Ashish Awasthi. Out of
these four decisions, N.C. Santosh (supra) was by a three
member Bench, which actually took note of the reference
pending before the larger Bench.
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 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.
10. Thus, it is clear that the policy which was prevailing on the date of
death of the employee would be the relevant one. The Supreme Court in
the case of State of Madhya Pradesh Vs. Ashsish Awasthy by
Judgment dated 18/11/2021 Passed in C.A. No. 6903 of 2021 has held
as under :
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 4 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.
11. Thus, it is clear that on the date of death, the father of the
petitioner was working on work-charged contingency, therefore, the
petitioner was not entitled to be appointed on compassionate ground.
Further, when the petitioner and his family can survive for 13 long years,
then it is clear that there was no emergency in front of the dependents of
the deceased employee. Accordingly, this Court is of the considered
opinion that no case is made out for interfering with the matter.
12. The petition fails and is hereby dismissed.
(G.S. AHLUWALIA)
JUDGE
Arun*
ARUN KUMAR MISHRA
2022.11.02 18:50:39 +05'30'
