Madhya Pradesh High Court
Smt. Rashmi Dubey vs The State Of Madhya Pradesh on 29 January, 2025
Author: Vishal Mishra
Bench: Vishal Mishra
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 29th OF JANUARY, 2025
WRIT PETITION No. 767 of 2019
SMT. RASHMI DUBEY
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Sanjay Sanyal - Advocate for petitioner.
Shri Jubin Prasad - Panel Lawyer for respondents/State.
ORDER
This petition has been filed seeking the following reliefs:
7A. The Hon'ble Court may kindly be pleased to direct
the respondents to consider the case of the petitioner for
compassionate appointment and pass appropriate order
in the light of format application of compassionate
appointment (Annexure P/2) which is pending before
the concerned authority.
7AA. That this Hon'ble Court may be pleased to quash
the impugned order dated 06.08.2015 vide Annexure
R/4.
7B. This Hon'ble Court may be pleased to direct the
respondents to complete the exercise within 60 days
from passing the order of this Hon'ble Court.
7C. To grant any other relief as deemed fit and proper
in the circumstances of this case.
7D. Cost of the petition may kindly be awarded to the
petitioner.
2. It is the case of the petitioner that the petitioner's late husband Mukesh
Dubey was working on the post of Shiksha Karmi Grade III in the office of
Block Education Officer, Tahsil Gugri District Mandla (M.P.). He was
permanent employee in the Tribal Welfare Department, Mandla. The
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petitioner's husband was murdered and his dead body was recovered from
Amanala, Janpad Panchayat, Mandla as is evident from death certificate
which has been issued by the Registrar (Birth & Death), Gram Panchayat,
Amanala, Janpad Panchayat, Mandla on 23.06.2008. The date of death of
petitioner's husband was shown as 18.06.2008. Thereafter, the petitioner
applied for grant of compassionate appointment in the prescribed format to
the Tribal Welfare Department along with relevant documents. Endorsement
was given by Block Education officer, Tahsil Gugri District Mandla on
22.11.2012.
3. It is to be noted that initially this writ petition was filed pointing out
the fact that the authorities have not taken a final decision on the application
for compassionate appointment. However, when the notices were issued, the
respondents-authorities have brought on record an order dated 06.08.2015
(Annexure R/4) passed by Assistant Commissioner, Tribal Welfare District
Mandla whereby her application for compassionate appointment was rejected
on the ground that in terms of the guidelines which have been issued with
respect to grant of compassionate appointment to the dependant of a
deceased-employee working on the post of Samvida Shala Shikshak Grade
III, the petitioner does not fall under the guidelines fixed by the authorities.
Therefore, her application for grant of compassionate appointment was
rejected.
4. It is argued that if the petitioner is not having the qualification for the
post of Samvida Shala Shikshak Grade III then her case could have been
considered for any other post, even Class IV post, for which she is having
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required qualification. It is submitted that the petitioner is hand to mouth
f o r her survival and the basic object and purpose of the compassionate
appointment is to provide immediate financial assistance and succour to the
family of the deceased-government servant so as to protect them against any
form of indigent because of the death of the sole bread winner of the family.
The aspects which are to be considered by the authorities are dependency
and penury. It is a specific case of the petitioner that there is no source of
income and she is hand to mouth. Therefore, her case ought to have been
considered for grant of compassionate appointment on any other post. By
way of amendment in the memo of petition, the order dated 06.08.2015 is
also put to challenge by the petitioner.
5. On notice being issued, a reply has been filed by the respondents-
authorities pointing out the fact that in case of sudden demise of a Samvida
Shala Shikshak Grade III employee, the compassionate appointment can only
be given on the said post. Since the petitioner is not having qualification to
hold the said post in question, therefore, her application for grant of
compassionate appointment was rejected. He has prayed for dismissal of the
petition.
6. Heard learned counsels for the parties and perused the record.
7. Under similar circumstances, this Court in the case of Mayank Acharya
vs State Civil Supplies Corporation Limited and others : WP No. 10137 of
2023 (Gwalior Bench) decided on 30.08.2024 has passed the following order
:
"It is submitted that the controversy involved in the case
has been put to rest by the order of this Court in the
case of Arun Kumar Parihar vs. State of M.P. and
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others (W.P. No.1860 of 2017) dated 12.06.2023,
wherein it is held that if a candidate is not having
qualification for the post of Assistant Grade - III then
his case for grant of compassionate appointment should
be considered on the Class-IV post. The procedure has
been provided in the Policy of the compassionate
appointment.
Counsel appearing for the State fairly submits that the
matter is squarely covered by the order passed by this
Court in the Case of Arun Kumar Parihar (supra).
Therefore, they will reconsider the case of petitioner for
grant of compassionate appointment on the Class-IV
post in terms of the policy issued by the State
Government.
Under these circumstances and in view of the statement
given by the State counsel that the petitioner is also held
entitled to the benefits as directed in the case of Arun
Kumar Parihar (supra), the authorities are directed to
complete the exercise of reconsideration of the case of
the petitioner for grant of compassionate appointment
on the Class-IV post in terms of the policy applicable to
his case within a period of 60 days from the date of
receipt of certified copy of this order.
Needless to mention that this counsel has not expressed
any opinion on the merit of the case.
Accordingly, the petition stands disposed off. No order
as to costs.
8. Further, this Court in the case of Manish Kumar Rajak vs State of
Madhya Pradesh and others : Writ Petition No. 1091 of 2022 decided on
23.09.2024 has observed as follows :
"... The second reason which has been assigned by the
authorities that the case of the petitioner cannot be
considered for appointment to Adhyapak Samvark or
Teacher as he is not having the requisite qualification
for the same, the fact remains that in cases of
compassionate appointment, the authorities can always
consider the case of dependent of the deceased
Government servant for appointment to any other post
even to a Class-IV post in case he is not having
qualification to be appointed to Class-III post. The same
has not been done in the present case by the authorities.
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Under both the counts, the impugned order dated
02.12.2021 (Annexure P/5) is unsustainable and it is
hereby quashed."
9. A coordinate Bench of this Court in the case of Hina Kausar vs State
of Madhya Pradesh : Writ Petition No. 5271 of 2024 decided on
13.08.2024 (Indore Bench) has observed as follows :
2. Facts of the case are that the mother of the petitioner
Smt. Baby Akila was appointed as Shiksha Karmi-III
with the respondents No.4 & 5. After getting the
eligibility certificate, she was absolved on the post
Sahayak Adhyapak and was continuously working. She
died due to illness on 7.10.2014 during the service
period. The petitioner possessed qualification of 8th
Class examination from Govt. Urdu Middle School,
Gautampura, Depalpur, Indore. The petitioner made a
representation dated 28.10.2014 before the respondent
No.4 to give compassionate appointment on the post of
Class-IV employee. The petitioner again submitted
representation on 01.02.2019 before respondents No.4
& 5 for giving compassionate appointment. The
petitioner again submitted number of representations
and reminders, but no heed was paid. The petitioner
filed a writ petition W.P. No.3027/2023. The petitioner
submitted that being married daughter of the deceased
employee is entitled to claim compassionate
appointment. A reference was made to the judgment
passed by this Court in the case of Meenakshi Dubey
vs. M.P. Poorv Kshetra Vidyut Vitaran Company Ltd.
(W.A. No.756/2019) wherein it was held that a married
daughter is entitled to claim compassionate
appointment. Considering the aforesaid, the said writ
petition was disposed off with a direction to the
respondents to decide the pending representation within
60 days with speaking and reasoned order from
production of certified copy of this order. An
application for modification of the said order was filed.
The said application was disposed off by modifying the
order dated 09.02.2023 directing the respondents to
consider the application of the petitioner for grant of
compassionate appointment only on Class-IV post
under the policy of compassionate appointment
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prevailing at the time of death of her mother. After the
orders passed by this Court in the said petition, the case
of the petitioner for compassionate appointment was
rejected by order dated 27.03.2023 on the ground that
the petitioner does not possess the qualification for
Class-III post. The petitioner again approached this
Court and filed WP No.9046/2023 challenging the
rejection order dated 27.03.2023. The said petition was
allowed and the impugned order was set aside and the
respondents were directed to consider the application of
the petitioner for compassionate appointment on
compassionate basis afresh by strictly complying with
the directions issued by this Court in W.P.
No.3027/2023 and on merits. After the said order, the
impugned order dated 14.08.2023 have been passed and
the case of the petitioner for compassionate
appointment has been rejected on the ground that as per
the letter dated 06.08.2015 (Annexure R/1) approved by
Commissioner, Public Instructions, there is no provision
under the government Rules for giving appointment to
the dependent of a deceased employee on the post of
Peon and Class-III.
3. Counsel for the petitioner submits that despite the
order passed by this Court in the previous petition that
the case of the petitioner has to be considered on the
basis of policy prevailing at the time of the death of the
deceased employee, the case of the petitioner has been
rejected on the basis of a communication dated
06.08.2015 issued from the office of the Director,
Public Instructions approved by Commissioner, Public
Instructions. He has referred the policy for
compassionate appointment dated 29.09.2014 issued by
General Administration Department and submitted that
as per Clause-5.4, it is clearly provided that if the
claimant does not possess the qualification for Class-III
post in a case of compassionate appointment, the case
of such applicant can be considered for appointment on
the vacant post of Class-IV provided if he fulfills the
eligibility provided for direct recruitment for Class- IV
post. It is argued that letter issued by Commissioner,
Public Instructions cannot override the Circular issued
by General Administration Department dated
29.09.2014 which was prevailing on the date of death of
the deceased employee.
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4. Counsel for the respondents/State submits that there
is no provision under the Rules to give appointment on
the post of Class-IV to a dependent of a deceased
employee who was working on the post of Sahayak
Adhyapak. The aforesaid contention cannot be
appreciated as it is established law that the
compassionate appointment is an exception to the
Recruitment Rules and is governed by the Circulars
issued by the government in absence of any Rules in
this regard. Admittedly, there is no Rules for
appointment on compassionate basis and, therefore, the
case of the petitioner would be governed by the Circular
(Annexure P/9) dated 29.09.2014. In absence of any
contrary statutory Rule, the case would be governed by
executive instructions/circulars issued by the State
Government which are enforceable by law.
5. Counsel for the respondent No.4 submits that the
respondent No.4 has got limited supervision over the
government school and has no role in the
compassionate appointment of the petitioner.
6. After hearing learned counsel for the parties and
considering the previous orders passed by this Court in
W.P. No.3027/2023 and WP No.9046/2023, this Court
finds that the impugned order has not been passed
strictly as per the directions of this Court and further the
respondent No.3 has failed to consider Clause 5.4 of
GAD Circular dated 29.09.2014. In view of the
aforesaid, the impugned order dated 14.08.2023
(Annexure P/1) is quashed. The respondent No.3 is
directed to reconsider the case of the petitioner for
compassionate appointment on Class-IV post as per
Clause-5.4 of GAD Circular dated 24.09.2014 within a
period of two months from the date of filing of copy of
this order.
7. With the aforesaid, the petition is allowed and
disposed off.
10. Clause 5.4 of the Circular dated 29.09.2014 specifically provides that
if aspirant is not holding the minimum qualification for his/her appointment
on Class III post, then he/she can be granted appointment on compassionate
ground on Class-IV post. It envisages thus :
5.4 तृतीय ण
े ी क यो यता न होने पर एवं चतुथ ण
े ी के
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पद क अहता होने पर सीधी भरती के र चतुथ ण
े ी के पद
पर द जा सकेगी।
11. It is a settled principle and even the circulars have been issued by the
State Government to the effect that in case a candidate is not holding
qualification for Class III post then his/her case for grant of compassionate
appointment can be considered on Class IV post also. The detailed procedure
is provided in the various circulars issued by the State Government from
time to time. The circulars further reflect that in case vacancy is not available
in the department then a procedure is prescribed and the matter has to be
referred to the Collector of concerning district to enable him to accommodate
the candidate for compassionate appointment in any other department where
the post is available.
12. In the present case, if the said circulars of the State Government as
well as the observations made by this Court in the aforesaid cases are applied
to the facts of the present case, then the authorities should have considered
the case of the petitioner for grant of compassionate appointment on any
other post which is commensurate to her educational qualification. The main
requirements of considering the case of compassionate appointment are the
factum of dependency and penury. Admittedly, the petitioner was totally
dependent upon the income of her husband and it is specifically argued
before this Court that as on date, she is having no source of income and she is
hand to mouth. Under these circumstances, this Court deems it appropriate to
allow the present petition.
13. In view of the aforesaid, the impugned order dated 06.08.2015 is
hereby quashed. The matter is remanded back to the respondents-authorities
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concerned to reconsider the case of the petitioner for grant of compassionate
appointment on any other post available in the department for which she is
having requisite qualification. The entire exercise be completed within a
period of 90 days from the date of receipt of certified copy of this order.
14. Consequently, the petition is allowed and disposed of finally in above
terms. No order as to costs.
(VISHAL MISHRA)
JUDGE
VV
