Madhya Pradesh High Court
Atul Manjhi vs The State Of Madhya Pradesh on 15 May, 2025
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
1
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
WRIT PETITION NO. 28266 of 2019
ATUL MANJHI
Versus
THE STATE OF M.P. & ORS.
Appearance:
Shri Chetan Kanungo- learned counsel for the petitioner.
Shri Sohit Mishra - Government Advocate for the
respondent/State.
----------------------------------------------------------------------------------
Reserved on : 28.03.2025
Delivered on : 15.05.2025
----------------------------------------------------------------------------------
ORDER
This petition under Article 226 of the Constitution of India
has been filed by the petitioner seeking following reliefs:-
"(a) Declare the notification/circular dated 31.08.2016 (Annexure
P-1) read with Clause 11.1 of the notification/circular dated
29.09.2014 (Annexure P-2) as ultra-vires and unconstitutional
being violative of Article 14 of the Constitution of India, to the
extent it discriminates between the dependents and family members
of permanent employees on one hand and dependents of regular
employees/work-charged and contingency based employees on the
other hand, for the purpose of compassionate appointment;
(b) It be further declared that dependents/ family members of a
permanent employee, who died in harness,are eligible to be
considered for compassionate appointment;
(c) Set-aside and quash order dated 22.10.2019 (Annexure P-3)
passed by Respondent No.5;
(d) Direct the Respondents to consider afresh and pass a speaking
order on the application of the petitioner for compassionate
appointment;
(e) Any other suitable relief which this Hon'ble Court may deem fit
in the facts and circumstances of the case.
Draped with brevity, the facts necessary for adjudication of the
present controversy are that father of petitioner Late Shri Munna Bathan
was a permanent classified employee (daily wager skilled labour) of
respondent/department. At the time of his death i.e. 25.04.2018, he was
working as a permanent worker (Sthaikarmi). Petitioner being son of
deceased employee having responsibility of entire family moved an
application seeking compassionate appointment. Since no heed was paid to
his application, he filed W.P. No.11500/2019 which was disposed of vide
order dated 01.07.2019 with a direction to the concerned Authority to
decide the application of petitioner for compassionate appointment and pass
a well reasoned order and communicate it to the petitioner. The Divisional
Forest Officer, Sheopur upon examining the application refused
compassionate appointment by relying upon circular dated 07.10.2016 and
03.05.2017 holding that as per guidelines stated in the circular, since there
is no policy for granting compassionate appointment to family members of
permanent classified employees, therefore, his application cannot be
considered. Aggrieved by the said rejection, the petitioner had preferred
present petition challenging the circular dated 31.10.2016, circular dated
29.09.2014 and order dated 22.10.2019 whereby in the light of 01.07.2010
ex-gratia amount of Rs.1,25,000/- was sanctioned and credited in the bank
account of mother of petitioner.
A reply has been filed on behalf of State and it has been averred
therein that the circular dated 29.09.2014 and 31.08.2016 issued by GAD
are for family members of deceased regular government employees and
work-charged contingency paid employees claiming compassionate
appointment and as the father of the petitioner was a daily-wager, the
petitioner was not entitled to get compassionate appointment at par with
regular employee or work-charged contingency paid employees.
In the reply, it has also been averred that vide circular dated
07.10.2016 issued by GAD, a policy was introduced by the State for the
benefit of the persons who had worked as daily wager and they were
declared as Sthaikari so that they can get better wages than minimum wages
which they were getting. As per the said circular, the said daily-wagers who
were given status of permanent classified employees were to be accorded
minimum pay-scale attached to the post on which they were permanently
classified though there were no sanctioned post in the Department. While
referring to the judgment of Ramnaresh Rawat Vs. Ashwani Ray & Ors.
(2017) 3 SCC 436, it has been contended that the Apex Court has drawn a
distinction between the permanent employee and the regular employee and
had held that the permanent employee is only entitled for minimum pay-
scale and without any increment and they are not at par with the regular
government employee.
It has also been averred that the State Government has already
considered the said anomaly and in the year 2010 vide circular dated
01.07.2010 has increased the payment of ex-gratia amount to the dependent
of deceased employee from Rs.1,00,000/- to Rs.1,25,000/- which in the
light of circular dated 29.09.2014 has been increased to Rs.2 lacs, therefore,
it cannot be said that there is discrimination with dependents of permanent
classified employee or non-grant of compensation amount after their death.
It was thus averred that when there is a clear distinction between
permanent classified employee and regular employee and it has been held
that they are not at par with each other since regular employees enter into
service only after following recruitment rules whereas permanent classified
employee/daily wager in ordinarily terms is not appointed as per
recruitment rules, therefore, it cannot be said that circular dated 29.09.2014
and 31.08.2016 issued by GAD are violative of Article 14 of the
Constitution of India as granting compassionate appointment to the
dependent of the permanent employee will amount to give a regular job to
such dependent whose predecessor was not a Government employee and
thus deprive the dependents of the Regular Government employee. Thus, in
the wake of settled legal position, it was averred that present petition is
liable to be dismissed.
It is submitted by counsel for the petitioner that the whole object of
compassionate appointment is to remove the financial constraints of the
bereaved family on loosing the bread earner and to enable the family of
deceased employee to tide over the sudden crises and protect the family in
question from penury on the death of sole bread earner and the said
appointment is required to be given so as to provide some source of
livelihood and enable the family to make both ends meet. The object is to
give succor to the family which has been suddenly plunged into penury due
to the untimely death of its sole breadwinner and as the permanent
classified employees (Sthaikarmi) are not strangers or aliens in the
government department as even they dedicate decades of service to the
government department, just like the livelihood of the dependents/family
members is jeopardized by the sudden death of regular employee or Work
Charged-Contingency Paid employee, the livelihood of family members of
dependents of permanent classified employee is also jeopardized. Thus, this
Court is required to take judicial notice of the fact that the financial position
of family members of deceased permanent employee is worse than family
members of deceased regular/ Work Charged and Contingency Paid
employee as they do not get the benefits of family pension etc.
It is further argued that when any impugned rule or statutory
provision (Government policy in the instant case) is assailed on the ground
that it contravenes Article 14, its validity can be sustained if two tests are
satisfied. The first test is that the classification on which it is founded must
be based on an intelligible differentia which distinguishes persons or things
grouped together from others left out of the group; and the second test is
that the differentia in question must have a reasonable relation to the object
sought to be achieved by the rule or statutory provision in question.
It is further submitted that Respondent - State has carved out two
classes of dependents of the deceased employees in respect of claims for
compassionate appointment, on the basis of employment-status of the
deceased employee. The service benefits like pension etc. are intrinsically
related with the status of employment, therefore, dependents and family
members of deceased permanent employee can not claim family pension
etc, however, it is beyond comprehension as to how, compassionate
appointment, which has to be given to the dependent of the deceased
employee, can be ascertained on the basis of the employment status of the
deceased employee, and it begs the question, what exactly is the purpose,
the State seeks to achieve by this classification.
It is further submitted that keeping the family members/dependents
of deceased permanent employee (Sthaikarmi) out of the "zone of
consideration" for compassionate appointment on the ground that
compassionate appointment can be given only to the dependents/ family
members of regular and Work-charged and Contingency Paid employeesis
prima facie discriminatory and violative of Article 14 of the Constitution of
India, inasmuch as the same is based only on descent.
It is further submitted that the logic behind the compassionate
appointment policy of Respondent - State is that only the dependents of
regular/ work-charged and contingency paid employees are entitled to
'inherit' the post under the scheme of compassionate appointment is not
understandable as there is no reasonable basis or intelligible differentia to
discriminate between the family members/dependents of regular
employee/Work Charged and Contingency Paid employee or permanent
employee (Sthaikarmi). The class of dependents is distinct class and cannot
be differentiated on the basis of the employment status of the deceased
employee. Since the appointment on the grounds of compassion is itself an
exception (though recognized) to the Constitutional scheme of public
employment, and policy in question in the instant case, has introduced
"discrimination in compassion" as the dependents of permanent employees
are not found worthy of compassion when even the dependents and family
members of deceased regular employee or work charged and contingency
paid employee can claim compassionate appointment as a matter of right.
Thus giving preferential treatment to them only on the basis of descent is
blatantly arbitrary and unconstitutional. In the light of the aforesaid
arguments, it was submitted that the instant petition deserves to be allowed
and the circular dated 31.08.2016 and 29.09.2014 be declared ultra-vires
and unconstitutional being violative of Article 14 of the Constitution of
India, to the extent it discriminates between the dependents and family
members of permanent employees on one hand and dependents of regular
employees/work-charged and contingency based employees on the other
hand, for the purpose of compassionate appointment and further the order
dated 22.10.2019 passed by respondent No.5 be also quashed and and set-
aside and respondents be directed to consider afresh and pass a speaking
order on the application of the petitioner for compassionate appointment.
Learned counsel for the State on the other hand has confined his
arguments to the averments already made in the reply and has not made any
further argument.
Heard counsel for the parties and perused the record.
Compassionate appointment is not a matter of right but is an
exception to the general rule of recruitment. The State Government, in
exercise of its executing power and within the bounds of Article 162 of the
Constitution, is competent to lay down the policy and terms for such
appointments.
The impugned circular makes a distinction between regular
employees and daily wage workers for the purpose of extending the benefit
of compassionate appointment. Such classification cannot be said to be
arbitrary and unreasonable. Regular employees are appointed through a
prescribed recruitment process and hold posts sanctioned under regular
establishment, whereas daily wager are engaged on a purely temporary and
need based basis, often without adherence to recruitment norms.
The Hon'ble Apex Court in the case of Umesh Kumar Nagpal Vs.
State of Haryana reported in (1994) 4 SCC 138 held that compassionate
appointment is not a vested right and must be strictly in terms of prevailing
policy. Furthermore, in State of Himachal Pradesh Vs. Prakash Chand
reported in (2019) 4 SCC 285, it was held that exclusion of daily wage
employee from compassionate appointment does not violate Articles 14 and
16 of the Constitution of India. The relevant paras 10 to 12 of the said
judgmentare quoted as hereunder:-
"10. In the exercise of judicial review under Article 226 of the Constitution,
it was not open to the High Court to re-write the terms of the policy. It is
well-settled that compassionate appointment is not a matter of right, but
must be governed by the terms on which the State lays down the policy of
offering employment assistance to a member of the family of a deceased
government employee. [Umesh Kumar Nagpal v. State of Haryana, SBI vs.
Kunti Tiwary, Punjab National Bank v. Ashwani Kumar Teneja, State Bank
of India v. Somvir Singh, Mumtaz Yunus Mulani v. State of
Maharashtra, Union of India v. Shashank Goswami, State Bank of India v.
Surya Narain Tripathi and Canara Bank v. M. Mahesh Kumar].
11. For the above reasons, we are of the view that the judgment of the High
Court is unsustainable. The High Court has virtually re- written the terms of
the Policy and has issued a direction to the State to consider applications
which do not fulfill the terms of the Policy. This is impermissible.
12. That apart, we find from the record that the father of the Respondent
died on 4-1-1997. Though the Respondent applied on attaining majority, as
permissible under the Policy, the application was rejected on 25-4-2008.
The writ petition was filed nearly two years and six months thereafter. Apart
from stating that the elder brother of the Respondent who was engaged in
government service was living separately, there were no factual averments
in support of the plea. In any event, as we have already held, the High Court
was not justified in issuing a direction which would breach the policy
framed by the State."
There is no quarrel to the proposition as laid down in the above said
judgments that the Court cannot re-write the policy nor can frame the policy
pertaining to the compassionate appointment, as it is left to the employer
and it is the freedom of the employer in this regard. Even the Court cannot
compel the employer to frame a guideline or issue a scheme relating to
compassionate appointment as it is within the exclusive domain of the
employer and the Court should not over-reach nor should sit in the armchair
of the employer.
Accordingly, this Court does not find merit in the challenge to the
said circulars. The circulars dated 31.08.2016 (Annexure P-1) and 29.09.2014
(Annexure P-2) are valid exercise of policy discretion by the State and does
not suffer from any constitutional or legal infirmity. Consequently, the said
circulars cannot be declared ultra vires.
In view of above, this petition stands dismissed.
(MILIND RAMESH PHADKE)
ojha JUDGE
