Madhya Pradesh High Court
Shivendra Singh Tomar vs The State Of Madhya Pradesh on 29 October, 2025
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1 WP. No. 13183 of 2020
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ANAND SINGH BAHRAWAT
ON THE 29th OF OCTOBER, 2025
WRIT PETITION No. 13183 of 2020
SHIVENDRA SINGH TOMAR
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Prashant Singh Kaurav - learned counsel for petitioner.
Shri Yogesh Parashar - learned Government Advocate for respondents/State.
ORDER
This petition, under Article 226 of the Constitution of India, has been
preferred by petitioner seeking following relief(s):
" It is, therefore, most humbly prayed that Hon'ble Court
may kindly allow the present petition and may kindly
quash the Order Impugned Annexure P/1 and direct the
respondents to grant compassionate appointment to the
petitioner.
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Any other relief which this Hon'ble Court deems fit in the
facts and circumstances of the case may also kindly be
granted.
Also the order impugned Annexure P/13 may kindly be
quashed and Respondent Department to be directed to
consider the candidature of petitioner in light of
Compassionate appointment policy dated 31.8.2016 and
29.9.2014 vide Annexure P/9."
2. The present petition has been filed by the petitioner assailing the order
dated 16.03.2020, whereby the claim for compassionate appointment has been
denied by passing a non-speaking order relying upon the circular dated
29.09.2014. Learned counsel for the petitioner further submits that the father of
the petitioner, late Shri Bhure Singh Tomar, died on 19.06.2003 and the case of
the petitioner has been considered on the basis of the letter dated 31.08.2016
read with the policy dated 29.09.2014. It is further submitted that as per the
judgment of the Hon'ble Supreme Court reported in (2022) 2 SCC 157, State
of M.P. v. Ashish Awasthi, the Hon'ble Supreme Court has held that the
policy prevailing at the time of death of the deceased employee alone is
required to be considered and not any subsequent policy.
3. Learned counsel for the respondents/State supported the impugned order
and opposed the prayer made by the learned counsel for petitioner. It is further
submitted that since the father of petitioner died in the year 2003, at the
relevant point of time, there was no policy granting compassionate appointment
to the family members of an employee working under the Work-Charged and
Contingency establishment. Hence, the application of the petitioner has been
rightly rejected.
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4. Heard the learned counsel for the parties and perused the record.
5. As per the impugned order dated 16.03.2020 (Annexure P/1), the case of
the petitioner has been considered on the basis of the policy dated 29.09.2014,
without considering the fact that the petitioner's father had expired in the year
2003. At the time of issuing the impugned order dated 02.02.2021 (Annexure
P/13), no opportunity of being heard was provided to the petitioner.
6. 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
India v. Jaspal year 1996, which was subsequently claim of the wife
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Kaur (2007) 9 made the financial modified by policy of the 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,
employee in the parameters was to after the death of
year 1999. see if the income the employee in
of the family had the year 1999,
been reduced to cannot be decided
less than 60% of on the basis of a
the salary drawn Scheme which
by the employee at came into force in
the time of death. the year 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 But with effect This Court held
India v. Raj died on 1.10.2004 from 04.08.2005 a that the
Kumar (2010) 11 and the new Scheme for application could
SCC 661 [a two applications for payment of be considered only
member Bench] compassionate exgratia lump-sum under the new
appointment were was introduced in Scheme, as it
made on the place of the contained a
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6.06.2005 and old Scheme. The specific provision
14.06.2005. On new Scheme relating to pending
the date of death contained a applications.
and on the date of provision to the
the applications, a effect that all
Scheme known as applications
compassionate pending under the
appointment old Scheme will
Scheme was in be dealt with only
force. in accordance with
the new Scheme.
MGB Gramin The employee However, a new This Court took
Bank v. Chakrawa died on Scheme dated the view that the
rti Singh (2014) 19.04.2006 and 12.06.2006 came new Scheme alone
13 SCC 583 [a the application for into force on would apply as it
two member appointment made 6.10.2006, contained a
Bench] on 12.05.2006. A providing only for specific provision
scheme for ex gratia payment which mandated
appointment on instead of all pending
compassionate compassionate applications to be
grounds was in appointment. considered under
force on that date. the new Scheme.
Canara The employee The 1993 Scheme This Court
Bank v. M. died on was substituted by dismissed the
Mahesh 10.10.1998 and a Scheme for appeals filed by
Kumar (2015) 7 the application for payment of ex the Bank on
SCC 412 [a two appointment on gratia in the year account of two
member Bench] compassionate 2005. But by the important
grounds, was time the 2005 distinguishing
made under the Scheme was features,
Scheme of the issued, the namely, (i) that the
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year 1993. It was claimant had application for
rejected on already appointment on
30.06.1999. The approached the compassionate
1993 Scheme was High Court of grounds was
known as "Dying Kerala by way of rejected in the
in Harness writ petition and year 1999 and the
Scheme." succeeded before rejection order
the learned Single was set aside by
Judge vide a the High Court in
Judgment dated the year 2003
30.05.2003. The much before the
Judgment was compassionate
upheld by the appointment
Division Bench in Scheme was
the year 2006 and substituted by an
the matter landed ex gratia Scheme
up before this in year 2005;
Court thereafter. and (ii) that in the
In other words, the year 2014, the
Scheme of the original scheme
year 2005 came for appointment
into on compassionate
force : (i) after the grounds stood
rejection of the revived, when the
application for civil appeals were
compassionate decided.
appointment under
the old scheme;
and (ii) after the
order of rejection
was set aside by
the Single Judge
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of the High Court
Indian The employee A new Scheme In the light of the
Bank v. Promila ( died on was brought into decision
2020) 2 SCC 15.01.2004 and force on in Canara
729 [a two the application for 24.07.2004 after Bank v. M.
member Bench] appointment was the death of the Mahesh Kumar,
made by his minor employee. Under this Court held
son on this Scheme an ex that the case of the
24.01.2004. On gratia claimant cannot be
these dates, a compensation was examined in the
circular bearing provided for, context of the
No. 56/79 dated subject to certain subsequent
4.04.1979 which conditions. After Scheme and that
contained a the coming into since the family
Scheme for force of the new had taken full
appointment on Scheme, the gratuity under the
compassionate claimant was old scheme, they
grounds was in directed by the were not entitled
force. But the bank to submit a to seek
Scheme provided fresh application compassionate
for appointment, under the new appointment even
only for those who Scheme. The under the old
do not opt for claimant did not Scheme.
payment of apply under the
gratuity for the new Scheme, as he
full term of was interested
service of only in
employee who compassionate
died in harness. appointment and
not monetary
benefit.
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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
7 SCC 617 (a Karnataka Civil a minor dependant Bank of
three Member Services should apply India v. Sheo
Bench) (Appointment on within one year Shankar Tewari to
Compassionate from the date of a larger bench, a
Grounds) Rules, death of the three member
1999, a minor Government Bench of this
dependant of a servant and must Court held in N.C.
deceased have attained the Santosh that the
Government age of 18 years on norms prevailing
employee may the date of making on the date of
apply within one the application. consideration of
year from the date Applying the the application
of attaining amended should be the basis
majority. provisions, the for consideration
appointment of of the claim for
persons already compassionate
made on appointment. The
compassionate Bench further held
grounds, were that the dependant
cancelled by the of a government
appointing employee, in the
authority which absence of any
led to the vested right
challenge before accruing on the
this Court. date of death of
the government
employee, can
only demand
consideration of
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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.
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
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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
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,
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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 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
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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.
7. Thus, it is clear that the policy which was in force on the date of death of
employee would be applicable.
8. Considering the aforesaid, this petition is disposed of with a direction to
the petitioner to submit a detailed and fresh representation regarding
compassionate appointment and ex-gratia payment, based on the policy
prevalent at the time of death of the deceased employee, who passed away in
the year 2003, within a period of three weeks from today before the Competent
Authority. In turn, the respondent/Competent Authority shall consider and
decide the petitioner's representation by passing a speaking and reasoned order
within a period of three months from the date of receipt of the certified copy of
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this order. Consequently, impugned orders dated 16.3.2020 (Annexure P/1) and
2.2.2021 (Annexure P/13) are hereby set aside.
9. The competent authority is directed to provide the personal opportunity
of being heard to the petitioner before deciding the representation of petitioner.
10. With the aforesaid, present petition stands disposed of.
11. Needless to mention that this Court has not expressed any opinion on the
merits of the case.
(ANAND SINGH BAHRAWAT)
JUDGE
ahmad
