Madhya Pradesh High Court
Bahid Khan vs The State Of Madhya Pradesh on 25 March, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
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1
WRIT PETITION No. 10026/2025
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 25th OF MARCH, 2025
WRIT PETITION No. 10026 of 2025
BAHID KHAN
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
None present for petitioner.
Shri Ravindra Dixit - Government Advocate for State.
ORDER
This petition under article 226 of constitution of India has been fired
seeking following reliefs:-
"7.1 That, the relevant respondent authorities may kindly be
directed to provide compassionate appointment to the
petitioner at the earliest.
Or
In alternate, relevant respondent authorities may kindly be
directed to provide and pay compassionate allowance Rs 2
lakh (Rs Two lakh) forthwith if compassionate appointment
could not be provided.
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7.2 That, any other relief doing Justice into the matter
including cost of petition, advocate fee etc. may also kindly
be awarded to the petition."
2. It is the case of petitioner that petitioner is adopted son of deceased
Munabbar Baig. Munabbar Baig expired on 26/06/2001. Petitioner had filed an
application for grant of appointment on compassionate ground, but the case of
petitioner is not being considered. It is submitted that now, even adopted son has
been included in the policy for appointment of compassionate ground, therefore,
petitioner is otherwise eligible to seek appointment on compassionate ground.
3. It is submitted by counsel for State that it is well established principle of
law that policy which was invogue on the date of death of employee would apply.
It is not the case of petitioner that even on the date of death of employee, any
adopted child was also eligible. Furthermore, this petition has been filed after 23
years of the date of death of employee and after 17 years of the date of attaining
majority. Even otherwise, belated approach to the court for appointment on
compassionate ground has already frustrated the very purpose of appointment on
compassionate ground.
4. Heard the learned counsel for State.
5. Late Shri Munabbar Baig expired on 26/06/2001 and petitioner was minor
on that date and he attained majority in the year 2008. On the date of death of
deceased Munabbar Baig, there was no policy for grant of appointment on
compassionate ground to the adopted son.
6. The Supreme Court in the case of Indian Bank and others Vs. Promila
and another reported in (2020) 2 SCC 729 has held that crucial date for
consideration of application for appointment on compassionate ground is the
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policy which was invogue on the date of death of employee. It has been held as
under:-
"18. The question of applicability of any subsequent Scheme really
does not apply in view of the judgment of this Court in Canara Bank.
Thus, it would not be appropriate to examine the case of the
respondents in the context of subsequent Schemes, but only in the
context of the Scheme of 4-4-1979, the terms of which continued to be
applicable even as per the new Scheme of 5-11-1985 i.e. the Scheme
applicable to the respondents. There is no provision in this Scheme
for any ex gratia payment. The option of compassionate appointment
was available only if the full amount of gratuity was not taken,
something which was done. Thus, having taken the full amount of
gratuity, the option of compassionate appointment really was not
available to the respondents."
7. The Supreme Court in the case of the State of Madhya Pradesh and
others Vs. Ashish Awasthi decided on 18.11.2021 in Civil Appeal
No.6903/2021 has held as under:-
"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.
4.2 The submission on behalf of the respondent that after the
impugned judgment and order passed by the High Court, the
respondent has been appointed and therefore his appointment may not
be disturbed, deserves rejection. Once the judgment and order passed
by the Division bench under which respondent is appointed is quashed
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and set aside, necessary consequences shall follow and the
appointment of the respondent, which was pursuant to the impugned
judgment and order passed by the Division Bench of the High Court
cannot be protected."
8. 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 Scheme Decision of this
on the date of which came into Court
death of the force after death
Government
servant
State Bank of The Scheme of the The 1996 Scheme Rejecting the claim
India v. Jaspal year 1996, which was subsequently of the wife of the
Kaur (2007) 9 made the financial modified by policy deceased
SCC 571 [a two condition of the issued in 2005, employee, this
member Bench] family as the main which laid down Court held that the
criterion, was in few parameters for application of the
force, on the date determining dependant made in
of death of the penury. One of the the year 2000, after
employee in the parameters was to the death of the
year 1999. see if the income employee in the
of the family had year 1999, cannot
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been reduced to be decided on the
less than 60% of basis of a Scheme
the salary drawn which came into
by the employee at force in the year
the time of death. 2005.
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 died But with effect This Court held
India v. Raj on 1.10.2004 and from 04.08.2005 a that the application
Kumar (2010) 11 the applications for new Scheme for could be
SCC 661 [a two compassionate payment of considered only
member Bench] appointment were exgratia lump-sum under the new
made on 6.06.2005 was introduced in Scheme, as it
and 14.06.2005. the place of the old contained a
On the date of Scheme. The new specific provision
death and on the Scheme contained relating to pending
date of the a provision to the applications.
applications, a effect that all
Scheme known as applications
compassionate pending under the
appointment old Scheme will be
Scheme was in dealt with only in
force. accordance with
the new Scheme.
MGB Gramin The employee died However, a new This Court took the
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Bank v. Chakrawa on 19.04.2006 and Scheme dated view that the new
rti Singh (2014) 13 the application for 12.06.2006 came Scheme alone
SCC 583 [a two appointment made into force on would apply as it
member Bench] on 12.05.2006. A 6.10.2006, contained a
scheme for providing only for specific provision
appointment on ex gratia payment which mandated all
compassionate instead of pending
grounds was in compassionate applications to be
force on that date. appointment. considered under
the new Scheme.
Canara Bank v. M. The employee died The 1993 Scheme This Court
Mahesh on 10.10.1998 and was substituted by dismissed the
Kumar (2015) 7 the application for a Scheme for appeals filed by the
SCC 412 [a two appointment on payment of ex Bank on account of
member Bench] compassionate gratia in the year two important
grounds, was made 2005. But by the distinguishing
under the Scheme time the 2005 features,
of the year 1993. It Scheme was namely, (i) that the
was rejected on issued, the application for
30.06.1999. The claimant had appointment on
1993 Scheme was already approached compassionate
known as "Dying the High Court of grounds was
in Harness Kerala by way of rejected in the year
Scheme." writ petition and 1999 and the
succeeded before rejection order was
the learned Single set aside by the
Judge vide a High Court in the
Judgment dated year 2003 much
30.05.2003. The before the
Judgment was compassionate
upheld by the appointment
Division Bench in Scheme was
the year 2006 and substituted by an
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the matter landed ex gratia Scheme
up before this in year 2005;
Court thereafter. In and (ii) that in the
other words, the year 2014, the
Scheme of the year original scheme for
2005 came into appointment on
force : (i) after the compassionate
rejection of the grounds stood
application for revived, when the
compassionate civil appeals were
appointment under decided.
the old scheme;
and (ii) after the
order of rejection
was set aside by
the Single Judge of
the High Court
Indian The employee died A new Scheme In the light of the
Bank v. Promila (2 on 15.01.2004 and was brought into decision in Canara
020) 2 SCC 729 [a the application for force on Bank v. M.
two member appointment was 24.07.2004 after Mahesh Kumar,
Bench] made by his minor the death of the this Court held that
son on 24.01.2004. employee. Under the case of the
On these dates, a this Scheme an ex claimant cannot be
circular bearing gratia examined in the
No. 56/79 dated compensation was context of the
4.04.1979 which provided for, subsequent
contained a subject to certain Scheme and that
Scheme for conditions. After since the family
appointment on the coming into had taken full
compassionate force of the new gratuity under the
grounds was in Scheme, the old scheme, they
force. But the claimant was were not entitled to
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Scheme provided directed by the seek
for appointment, bank to submit a compassionate
only for those who fresh application appointment even
do not opt for under the new under the old
payment of Scheme. The Scheme.
gratuity for the full claimant did not
term of service of apply under the
employee who died new Scheme, as he
in harness. was interested only
in compassionate
appointment and
not monetary
benefit.
N.C. Under the existing But by virtue of an After taking note
Santosh v. State of Scheme referable amendment to the of a reference
Karnataka (2020) to Rule 5 of the proviso to Rule 5, made in State Bank
7 SCC 617 (a Karnataka Civil a minor dependant of India v. Sheo
three Member Services should apply Shankar Tewari to
Bench) (Appointment on within one year a larger bench, a
Compassionate from the date of three member
Grounds) Rules, death of the Bench of this
1999, a minor Government Court held in N.C.
dependant of a servant and must Santosh that the
deceased have attained the norms prevailing
Government age of 18 years on on the date of
employee may the date of making consideration of
apply within one the application. the application
year from the date Applying the should be the basis
of attaining amended for consideration
majority. provisions, the of the claim for
appointment of compassionate
persons already appointment. The
made on Bench further held
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compassionate that the dependant
grounds, were of a government
cancelled by the employee, in the
appointing absence of any
authority which led vested right
to the challenge accruing on the
before this Court. 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.
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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
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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
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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.
9. Furthermore, the Supreme Court in the case of The State of West Bengal
vs. Debabrata Tiwari & others by judgment dated 03.03.2023 passed in Civil
Appeal Nos.8842-8855/2022 has held that if dependents of deceased employee
can survive for a considerable long time, then that by itself would frustrate the
very purpose of appointment of compassionate ground. Petitioner has approached
after 23 years of death of employee. That by itself is sufficient to dismiss this
petition.
10. Considering the fact that there was no policy for giving appointment on the
compassionate ground to the adopted son and 23 years have already passed after
the death of Munabbar Baig, this Court is of considered opinion that no case is
made out of warranting interference.
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11. Accordingly, petition fails and is hereby dismissed.
(G.S. Ahluwalia)
Judge
Rashid
