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Madhya Pradesh High Court
Smt. Pushpa Mishra vs The State Of Madhya Pradesh Thr on 11 March, 2026
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE ANAND SINGH BAHRAWAT
ON THE 11th OF MARCH, 2026
WRIT PETITION No. 2802 OF 2017
SMT. PUSPA MISHRA
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Aditya Pratap Singh - learned Counsel for petitioner.
Shri Prabhat Pateriya - 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):-
"7. It is, therefore, most humbly prayed that the instant
petition may kindly be allowed and a writ of mandamus
and/or a suitable writ, order or direction in the nature of a
writ be issued against the respondent and following reliefs
may kindly be granted:-
i. Impugned order Annexure P-1 may kindly be
quashed.
ii. Respondent be directed to consider the case of
petitioner for grant of compassionate appintment as per his
qualification.
iii. Respondents be further directed to declared
petitioner's husband as regularized employee.
Any other relief which this Hon'ble Court deems fit
in the facts and circumstances of the case same may kindly
be granted to the petitioner "
2. Learned counsel for the petitioner submitted that the petitioner's husband
was appointed as a Peon under contingency on 14th June, 1989. It was argued
that although similarly situated employees had already been regularized, the
service of the petitioner's husband was not regularized by the respondent
authorities. Vide order dated 28th December, 2005, the husband of the petitioner
was formally declared a member of the contingency service. Learned counsel
for the petitioner further submitted that the petitioner's deceased husband was
entitled to regularization at par with his peers. The petitioner's husband expired
on 27th January, 2013, and thereafter the petitioner submitted a representation
seeking compassionate appointment. However, the said representation was
rejected vide order dated 23rd March, 2017. Learned counsel for the petitioner
further submitted that once similarly situated persons to the petitioner's husband
had been regularized, the same benefit should be extended to her husband and,
consequently, her case should be considered for compassionate appointment.
3. Per contra, learned counsel for the State submitted that the petitioner's
husband was appointed on the post of Peon on a contingency basis on 14th
June, 1989 and died on 27th January, 2013. At the time of his death, the circular
dated 18th August, 2008 was in force. According to this circular, if an employee
was appointed on a contingency or daily-wage basis, his legal heirs or
dependents had no legal right to seek or obtain compassionate appointment
upon the employee's death. Learned counsel for the State further submitted that
although a new policy was introduced on 31st August, 2016 extending such
benefits to the legal heirs of contingency-paid employees, the said policy was
not in force when the petitioner's husband died. Therefore, the representation of
the petitioner was rightly rejected by order dated 23rd March, 2017. Hence, it
was prayed that the petition be dismissed.
4. Heard learned counsel for the parties and perused the record.
5. 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
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 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 new Scheme for could be
SCC 661 [a two for 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
Scheme was in be dealt with only
force. in accordance with
the new Scheme.
MGB Gramin The employee died However, a new This Court took
Bank v. Chakrawa on 19.04.2006 and Scheme dated the view that the
rti Singh (2014) 13 the application for 12.06.2006 came new 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
compassionate instead of all pending
grounds was in compassionate applications to be
force on that date. appointment. considered under
the new Scheme.
Canara The employee died The 1993 Scheme This Court
Bank v. M. on 10.10.1998 and was substituted by dismissed the
Mahesh the application for a Scheme for appeals filed by
Kumar (2015) 7 appointment on payment of ex the Bank on
SCC 412 [a two compassionate gratia in the year account of two
member Bench] grounds, was 2005. But by the important
made under the time the 2005 distinguishing
Scheme of the Scheme was features,
year 1993. It was issued, the namely, (i) that the
rejected on claimant had application for
30.06.1999. The already appointment on
1993 Scheme was approached the compassionate
known as "Dying 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
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 original scheme
year 2005 came for appointment on
into force : (i) after compassionate
the 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
020) 2 SCC 729 [a the application for force on in Canara
two member appointment was 24.07.2004 after Bank v. M.
Bench] made by his minor the death of the Mahesh Kumar,
son on 24.01.2004. employee. Under this Court held
On these dates, a this Scheme an ex that the case of the
circular bearing gratia claimant cannot be
No. 56/79 dated compensation was examined in the
4.04.1979 which provided for, context of the
contained a subject to certain subsequent
Scheme for conditions. After Scheme and that
appointment on the coming into since the family
compassionate force of the new had taken full
grounds was in Scheme, the gratuity under the
force. But the claimant was old scheme, they
Scheme provided directed by the were not entitled
for appointment, bank to submit a to seek
only for those who fresh application compassionate
do not opt for under the new appointment even
payment of Scheme. The under the old
gratuity for the full claimant did not Scheme.
term of service of apply under the
employee who new Scheme, as he
died 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
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
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
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,
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 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.''
6. Upon going through the aforesaid circular, policy and the provisions
referred to hereinabove, this Court finds that no case is made out for granting
compassionate appointment to the petitioner. There is also no rule or provision
that allows the service of petitioner's deceased husband to be regularized after
his death. The petitioner's husband was working as a contingency Peon and died
on 27th January, 2013. At the time of his death, the Government circular dated
18th August, 2008 was in force, which clearly stipulated that family members of
contingency-paid or daily-wage employees were not entitled to claim
compassionate appointment. Though a new policy dated 31st August, 2016
subsequently extended such benefits to the families of contingency employees,
the said policy was not in force at the time of death of the petitioner's husband.
Therefore, the said policy cannot be applied retrospectively. Further, there is no
legal provision enabling the regularization of the deceased employee's services.
7. In view of above, this Court finds no merit in the present petition.
Accordingly, the writ petition stands dismissed. No order as to costs.
(ANAND SINGH BAHRAWAT)
JUDGE
VIJAY
vj Digitally signed by VIJAY TRIPATHI
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postalCode=474001, st=Madhya
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serialNumber=58392d8c4e7c9693bf
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Date: 2026.03.11 18:36:01 +05'30'
