Shashikant Mishra vs Cantonment Board
2023 Latest Caselaw 1795 MP

                                  1
 IN     THE       HIGH COURT OF MADHYA PRADESH
                       AT JABALPUR
                              BEFORE
                HON'BLE SHRI JUSTICE ANAND PATHAK
                    ON THE 1 st OF FEBRUARY, 2023
                   WRIT PETITION No. 30189 of 2022

BETWEEN:-
SHASHIKANT MISHRA S/O LATE RAM SAGAR MISHRA,
AGED    ABOUT     41    YEARS, R/O   Q.NO.   2,
CHANDRASHEKHAR     ENCLAVE,    SADAR    BAZAR,
JABALPUR (MADHYA PRADESH)

                                                               .....PETITIONER
(BY SHRI VIBHUDHENDRA MISHRA - ADVOCATE)

AND
CANTONMENT     BOARD    THROUGH    ITS   CHIEF
EXECUTIVE OFFICER O/O CHIEF EXECUTIVE OFFICER,
CANTONMENT     BOARD,    JABALPUR     (MADHYA
PRADESH)

                                                              .....RESPONDENT
(BY NONE)

      This petition coming on for admission this day, th e court passed the
following:
                                   ORDER

Heard on admission.

By this petition, filed under Article 226 of the Constitution of India, the petitioner is aggrieved by order dated 26.9.2020 (Annexure P/1) passed by Chief Executive Officer, Cantonment Board, Jabalpur, (for short, "the Board") whereby case of petitioner for compassionate appointment has been considered and rejected.

Precisely stated facts of the case are that Ram Sagar Mishra, father of petitioner herein, was working with the Board and he died in harness on

4.9.2019. The petitioner applied for compassionate appointment in his place. His application was rejected on the ground that he was a married son of the deceased-employee having independent source of income and there were no other dependent members of the deceased-employee in the family. Petitioner again represented the Board in proper format and requested for compassionate appointment but again his claim was rejected citing earlier decision of the Board.

Petitioner raised the point of discrimination on the ground that one Vikas Mehto, who similar placed vis-a-vis petitioner has been given benefit of compassionate appointment because Vikas Mehto's mother and father both

were in regular service of the Board and his father Prakash Mehto died in harness while his wife Smt. Usha Prakash Mehto was in regular services of the Board. The said Vikas Mehto applied for compassionate appointment in place of his deceased father. Vikas Mehto also had a separate source of income as he was working with M/s. Glow & Guard, a listed labour supplier contractor of the Board. Despite all these facts, the Board has considered the case of said Vikas Mehto and rejected the claim of petitioner. Therefore, this petition is being preferred.

Heard counsel for the petitioner at length on admission. This is a case of compassionate appointment.

It is true that compassionate appointment is a special mechanism provided by the modal employer as benevolent gesture for those employees who passed away during harness rendering families vulnerable to the vagaries of life but at the same time, employee has to ensure that compassionate appointment be given to the family members and/or as per their qualification

and as per the availability of vacant post, provided no other family member is in government job. Since compassionate appointment is antithesis to the Articles 14 and 16 of the Constitution because it dehors the statutory rule meant for recruitment in general, therefore, only eligible person can be held entitled for appointment on compassionate basis.

In the present case, petitioner, who is a 41-year-old man, is seeking compassionate appointment. Earlier, he filed Writ Petition No.311/2021 in which all these grounds were raised impliedly before co-ordinate Bench of this Court which vide detail order dated 10.2.2022 considered all the grounds and dismissed the petition. In other words, ground raised by the petitioner were rejected by the co-ordinate Bench. The said judgment is based upon different judgments of Apex Court passed in the case of Haryana State Electricity Board v. Naresh Tanwar (1996) 8 SCC 23 in which it has been held that compassionate appointment is neither a vested right, which can be exercised at any time even after the crisis created by the death is over, nor a hereditary right. Not only this, in the case of Director of Education (Secondary) v. Pushpendra Kumar (1998) 5 SCC 192, a three-Judge-Bench of Supreme Court has explained the purpose of compassionate appointment and pointed out its exceptional nature. The said judgment referred the earlier judgment of Apex Court passed in the case of Umesh Kumar Nagpal v. State of Haryana

(1994) 4 SCC 138.

Incidentally, the impugned order is dated 25.9.2020 and the said writ petition was preferred by petitioner in the year 2021 (Writ Petition No.311/2021). Impliedly, petitioner knew the fact of passing of impugned order dated 25.9.2020 (Annexure P/1 of this writ petition) and, as the discussion surfaced in the said petition it binds the petitioner. He cannot re-agitate the issue

being bound by principle of res-judicata.

Be that as it may. another contention raised by petitioner appears to be of discrimination because, according to him, one Vikas Mehto has been appointed on compassionate basis when his father passed away despite the fact that his mother was working with the Cantonment Board, Jabalpur, and he was given appointment on 11.8.2021 (Annexure P/3).

Perusal of appointment order of Vikas Mehto indicates that the petitioner was working on the post of Sweeper (Group D) and said Vikas Mehto was also appointed on the same post. So far as case of petitioner is concerned, facts and circumstances of said Vikas Mehto may be different than the attending facts of the present case. In fact, the order passed in Writ Petition No.311/2021 is of 10.2.2022 and, therefore, the petitioner must have been in knowledge of the order dated 11.8.2021 passed by the respondent whereby Vikas Mehto was appointed on compassionate basis. Therefore, impliedly, that argument was also available to the petitioner, at least, if not pressed into service in previous round of litigation. Still he did not opt to do so. Therefore, on this count also, plea of discrimination does not gain enough ground to evoke indulgence by this court. In cumulative analysis, once the case of petitioner has been duly considered by the co-ordinate Bench by way of Writ Petition No.311/2021 (Annexure P/7) then this court cannot re-appreciate the facts and circumstances of the case afresh. However, it is expected from the respondent that if petitioner and Vikas Mehto are identically placed like carbon copy so far as factual contours are concerned, then respondent may consider the case of the petitioner also for grant of appointment on compassionate basis otherwise not. No further direction can be issued in the given set of facts.

Admission declined.

Resultantly, the petition fails and is hereby dismissed.

(ANAND PATHAK) JUDGE ps

Digitally signed by PRASHANT SHRIVASTAVA Date: 2023.02.03 10:28:49 +05'30'