Shailendra Kumar Pandey vs The State Of Madhya Pradesh
2024 Latest Caselaw 3412 MP

Madhya Pradesh High Court

Shailendra Kumar Pandey vs The State Of Madhya Pradesh on 6 February, 2024

Author: Vivek Agarwal

Bench: Vivek Agarwal

                                                             1
                            IN     THE      HIGH COURT OF MADHYA PRADESH
                                                 AT JABALPUR
                                                      BEFORE
                                        HON'BLE SHRI JUSTICE VIVEK AGARWAL
                                               ON THE 6 th OF FEBRUARY, 2024
                                              WRIT PETITION No. 16048 of 2018

                           BETWEEN:-
                           SHAILENDRA KUMAR PANDEY S/O LATE SHRI
                           RAMSALON PANDEY, AGED ABOUT 36 YEARS,
                           OCCUPATION: UNEMPLOYEE R/O. BEHIND MBA
                           COLLEGE KAILASH PURI REWA (MADHYA PRADESH)

                                                                                         .....PETITIONER
                           (BY SHRI PRAKASH UPADHYAY - ADVOCATE)

                           AND
                           1.    THE STATE OF MADHYA PRADESH THR THE
                                 PRINCIPAL SECRETARY PUBLIC WORKS DEPT.
                                 M AN TR ALAYA VALLABH BHAWAN (MADHYA
                                 PRADESH)

                           2.    CHIEF ENGINEER PUBLIC WORKS DEPARTMENT
                                 BHOPAL RANGE, BHOPAL (MADHYA PRADESH)

                           3.    EXECUTIVE   ENGINEER   PUBLIC  WORKS
                                 D EPARTM EN T SAGAR DIVISION (MADHYA
                                 PRADESH)

                                                                                       .....RESPONDENTS
                           (BY SHRI ATUL DWIVEDI - PANEL LAWYER)

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

This writ petition is filed by the petitioner being aggrieved of order of November 2017 Annx.P/6, passed by the Engineer-in-Chief, Public Works Department, rejecting petitioner's case for grant of compassionate appointment.

2. Learned counsel for the petitioner Shri Prakash Upadhyay, submits that

petitioner's father Shri Ramsalon Pandey, was working as Assistant Grade-III in Public Works Department, Bridge Division. He died in harness on 28.11.2016. Petitioner whose date of birth is 09.11.1981, had applied for compassionate appointment. His educational qualification is Higher Secondary School from Government Martand Higher Secondary School, Rewa.

3. It is submitted that petitioner's case for grant of compassionate appointment was rejected on the ground that younger son of the deceased, namely, Shivendra Kumar Pandey is employed in Army.

4. It is submitted that the law in this behalf is that if a member of the family is though employed, but is not supporting the family, then such employment will

not come in the way of the grant of compassionate appointment.

5. Reliance is placed on the Division Bench decision of High Court of Madhya Pradesh at Indore in Writ Appeal No.157/2019 (General Administration Department and another Vs. Prem Singh S/o Ishwar Singh Rajawat), wherein, taking into consideration the ratio of law laid down in case of Prajesh Vs. State of Madhya Pradesh [2016 (3) MPLJ 88], it is held that "a brother who is living separately is also come under the definition of a member of the family, therefore, merely a member of the family of the deceased servant, who is in employment in Government service or Corporation, or Board, Council, or Commission, has started living separately, he cannot be excluded from the clause under Clause 4.1 of the policy. The writ Court has considered the nature of employment in the Indian Army and held that it cannot be equated with regular services in the Government as well as Central Government. Hence, the case of the petitioner deserves to be considered on merit ignoring Clause 4.1 of the policy."

6. Hon'ble Division Bench while considering another decision passed in Writ

Appeal No.13/2020, noted that mere employment of a brother in service is not sufficient to deny benefit of compassionate appointment and, therefore, matter was remitted back to conduct an enquiry with regard to the penury of the petitioner and as to whether her brother, who had secured the employment is taking care to the family or not, or other related issues.

7. Shri Upadhyay, learned counsel, also places reliance on the judgment of Supreme Court in Balbir Kaur and others Vs. Steel Authority of India Limited and others [(2000) 6 SCC 493]. Drawing attention to para 13 of the said judgment, it is submitted that under the facts and circumstances mentioned therein, Supreme Court has held that compassionate appointment cannot be substituted with any other relief.

8. Shri Atul Dwivedi, learned Panel Lawyer for the State, in his turn, opposes the prayer for grant of compassionate appointment and submits that a bald affidavit by the mother of the petitioner that her younger son is not supporting the family, is not sufficient.

9. After hearing learned counsel for the parties, when this Court categorically asked Shri Prakash Upadhyay, learned counsel for the petitioner, that as to whether the widow is in receipt of family pension or not, he fairly admits that widow is in receipt of family pension. Thus, first aspect as has been considered by the Division Bench of this Court in Writ Appeal No.13/2020, i.e. aspect of

penury is not made out as widow is already in receipt of the family pension. When this aspect is taken into consideration, then it is evident that widow being in receipt of family pension and also having received retiral benefits like GPF, Leave Encashment and Gratuity cannot be said to be in the state of penury.

10. As far as law laid down in case of Balbir Kaur (supra) is concerned, facts

of that case are different. In para 13, it is mentioned that counsel appearing for Steel Authority had contended that the family benefit Scheme was introduced on 21.11.1992 and the salient features of the Scheme were to the effect that he family being unable to obtain regular salary from the management could avail of the Scheme by depositing the lump sum provident fund and gratuity amount with the Company in lieu of which the management would make monthly payment equivalent to the basic pay together with dearness allowance last drawn, which payment would continue till the normal date of superannuation of the employee in question.

11. Under such facts and circumstances, where dependents of a deceased employee were required to surrender the lump-sum provident fund and gratuity with the Company, Hon'ble Supreme Court observed that "But in our view this Family Benefit Scheme cannot in any way be equated with the benefit of compassionate appointments. The sudden jerk in the family by reason of the death of the bread earner can only be absorbed by some lump-sum amount being made available to the family - this rather unfortunate but this is a reality. The feeling of security drops to zero on the death of the bread earner and insecurity thereafter reigns and it is at that juncture if some lump-sum amount is made available with a compassionate appointment, the grief-stricken family may find some solace to the mental agony and manage its affairs in the normal course of events. It is not that monetary benefit would be the replacement of the bread earner, but that would undoubtedly bring some solace to the situation".

12. Thus, the facts of that case were different in that case lump-sum amount received by the bread earner was required to be surrendered to get the benefit of last pay drawn till the age of superannuation of the employee, but the Scheme

of the State Government is different. Here widow is entitled to family pension throughout her life. Similarly, she has been given lump-sum amount of Gratuity, Leave Encashment and GPF so to invest it and earn returns on it so to maintain her family.

13. Age of the petitioner at the time of filing up of the application for grant of compassionate appointment was more than 35 years. This is another glaring aspect available in the case. In this backdrop, law laid down by Supreme Court in State of Uttar Pradesh Vs. Paras Nath (AIR 1998 SC 2612), wherein it is held that compassionate appointment is not an alternate source and is an exception to the general rule that appointment to public service should be on merits and through open invitation is clear on this aspect. It is held that theory of compassionate appointment has a precise connotation that it has been recognized as an exception to the general rules relating to appointments.

14. In case of Smt. Sushma Gosain and others Vs. Union of India and others (AIR 1989 SC 1976), Supreme Court has held that "the purpose of providing appointment on compassionate ground is to mitigate the hardship due to death of the bread earner in the family and, thus, such appointment should, therefore, be provided immediately to redeem the family in distress." However, it is also true as held in Haryana State Electricity Board Vs. Naresh Tanwar and another [(1996) 8 SCC 23] and in case of Srikanth Vs. Chief Engineer, Karnataka Electricity Board [(1996) 1 SLR 118], that the aspect of compassionate appointment is neither a vested right which can be exercised at any time nor a hereditary right nor can be be bequeathed.

15. In Life Insurance Corporation of India Vs. Asha Ramchandra Ambedkar [(1994) SCC 2148], Supreme Court has held as under :-

"Of late, this Court is coming across many cases in which appointment on compassionate ground is directed by judicial authorities. Hence, we would like to lay down the law in this regard. The High Courts and the Administrative Tribunals cannot confer benediction impelled by sympathetic consideration........ Yielding to instinct will tend to ignore the cold logic of law. It should be remembered that "law is the embodiment of all Wisdom." Justice according to law is a principle as old as the hills. The Courts are to administer law as they find it, however, inconvenient it may be ........"The Courts should endeavour to find out whether a particular case in which sympathetic considerations are to be weighed falls within the scope of law. Disregardful of law, however, hard the case may be, it should never be done."

16. Thus, taking this fact into consideration that the approach of the Court has been that the grant of compassionate appointment is to overcome penury and immediate hardship and looking to the fact that family pension is available to the petitioner, the ratio of the law laid down in case of Prem Singh (supra)

and having not discussed the aspect of penury and the grant of family pension is distinguishable on its own facts.

17. As far as law laid down by Supreme Court, it is on different aspect and, therefore, when tested, then impugned order refusing to grant compassionate appointment not only on the ground of employment of younger brother of the petitioner that is the younger son of the deceased employee, but also on the ground of absence of penury in the hands of the widow and looking to the fact that the petitioner was more than 35 years of age on the date of the death of the deceased employee, compassionate appointment being not a source of alternate employment or a backdoor entry, impugned decision cannot be faulted with.

18. Accordingly, petition fails and is dismissed.

(VIVEK AGARWAL) JUDGE A.Praj.