Madhya Pradesh High Court
Nishar Ahmed vs The State Of Madhya Pradesh Thr. on 29 January, 2018
THE HIGH COURT OF MADHYA PRADESH
1
WA.326.2015
(Nisar Ahmed Vs. State of M.P. and others)
Gwalior, Dated : 29.01.2018
Shri Bhagwan Raj Pandey, learned counsel
for the appellant.
Shri Vivek Jain, learned Government
Advocate, for the respondent/State.
With the consent of learned counsel for the parties, the matter is finally heard.
Challenge is to an order dated 17/11/2015 passed in Writ Petition No.5873/2011 (s) whereby the claim of the appellant for direction to respondents to consider him for appointment on compassionate ground has been negatived on the finding that the claim of the petitioner for compassionate appointment was rightly considered as per policy in vogue in 2007 when his claim was considered. Learned Single Judge relied upon the decision in "Bank of Maharashtra and another Vs. Manoj Kumar Deharia and another [2010(4) MPHT 18 (FB)]" whereby Full Bench held that the policy of compassionate appointment prevailing at the time of consideration of the application shall be invoked and not the policy in vogue at the time of the death of government servant.
The relevant facts are that, father of the appellant, who was a Lower Division Teacher, died in harness on 22.02.1999. The appellant on THE HIGH COURT OF MADHYA PRADESH 2 WA.326.2015 (Nisar Ahmed Vs. State of M.P. and others) attaining majority in the year 2001 (his date of birth being 10/08/1983) filed an application for compassionate appointment. The application remained pending and was decided on 20.04.2007 as per Clause 3.2 and 7 of the policy Memo No.C- 3-7/2000/03/1 dated 22.01.2007 issued by the General Administration Department, Government of Madhya Pradesh on the ground of delay. Appellant questioned the order on the anvil that his application ought to have been considered on the basis of the policy in vogue when his father died in 1999 as a right of consideration accrued in his favour. The claim since has been negatived by impugned order.
Learned counsel for the appellant while not disputing that Full Bench in Manoj Kumar Deharia and another (supra) was in seisin with the issue as to whether:-
"In a case of compassionate appointment pursuant to the death of a deceased employee, which policy of the Government is to be applied:-
"(1) The policy prevailing at the time of the death of employee?
Or (2) The policy prevailing at the time of application for compassionate appointment?
THE HIGH COURT OF MADHYA PRADESH 3 WA.326.2015 (Nisar Ahmed Vs. State of M.P. and others) Or (3) The policy prevailing at the time of consideration of the application for compassionate appointment?"
And that it is held:-
"33. In view of the foregoing discussion, we proceed to record our conclusions as follows:-
(a) The grant of compassionate appointment is not a vested legal right. It is only a benefit granted in certain circumstances de hors the normal rule of appointment and when the employer has a right to evolve an appropriate policy after considering various factors for granting such a benefit, the considerations have to be made in accordance with the policy that is prevailing at that point of time.
(b) When it is held that compassionate appointment is not a vested right and when grant of such appointment is governed by the rules and policies prevailing in an establishment, then consideration as per the rules existing is required to be made and consideration on the basis of a policy, which is given up by the employer and which has no application at that point of time cannot be insisted upon.
(c) Having regard to the
exceptional nature of this
appointment and taking note of the THE HIGH COURT OF MADHYA PRADESH 4 WA.326.2015 (Nisar Ahmed Vs. State of M.P. and others) fact that it is granted under a special scheme carved out de hors the normal mode of recruitment, the same has to be governed as per the policies or provisions governing such appointment prevalent at a particular point of time when consideration is to be made, and not on the basis of a policy which was in vogue and has been given up by the employer due to changed circumstances.
(d) As compassionate appointment is granted by carving out a special scheme contrary to the normal mode of recruitment and when the employer or the Government is at liberty to evolve a scheme for granting such appointment from time to time, then the consideration for appointment has to be made in accordance with the scheme or policy that is in existence.
(e) The decisions rendered in T. Swamy Dass (supra) and Heeralal Baria (supra) do not lay down the correct law and are hereby overruled.
(f) Any right flowing from a settlement between the employer and employees' union or association has to be in a different compartment.
(g) It would be the obligation of the employer to deal with the application with immediacy and promptitude so that the grievance of a family in distress gets a fair THE HIGH COURT OF MADHYA PRADESH 5 WA.326.2015 (Nisar Ahmed Vs. State of M.P. and others) treatment in accordance with law."
Learned counsel for the appellant, however, submits that the Full Bench had considered the aspect of right to appointment whereas the aspect that right of consideration is a vested right has been dwelt upon by the Supreme Court in "Canara Bank and another Vs. M. Mahesh Kumar [(2015) 7 SCC 412]". It is urged that since right of consideration is a vested right, which accrued in favour of the appellant when his father died in harness on 22.02.1999, the case of the appellant ought to have been considered on the basis of the policy in vogue when his father died.
In M. Mahesh Kumar (supra) the issue as evident from the opening paragraph was:
"Whether the dependant family members of the deceased employee of the appellant Canara Bank were entitled to seek compassionate appointment on the basis of "Dying in Harness Scheme"
which was passed vide Circular No.154/1993 w.e.f. 8.05.1993".
Their Lordships were pleased to hold:-
"17. Applying these principles to the case in hand, as discussed earlier, respondent's father died on 10.10.1998 while he was serving as a clerk in the appellant-bank and the respondent applied timely for compassionate appointment as per the scheme "Dying in THE HIGH COURT OF MADHYA PRADESH 6 WA.326.2015 (Nisar Ahmed Vs. State of M.P. and others) Harness Scheme" dated 8.05.1993 which was in force at that time. The appellant- Bank rejected the respondent's claim on 30.06.1999 recording that there are no indigent circumstances for providing employment to the respondent. Again on 7.11.2001, the appellant-Bank sought for particulars in connection with the issue of respondent's employment. In the light of the principles laid down in the above decisions, the cause of action to be considered for compassionate appointment arose when the Circular No.154/1993 dated 8.05.1993 was in force. Thus, as per the judgment referred in Jaspal Kaur's case, the claim cannot be decided as per 2005 Scheme providing for ex-gratia payment. The Circular dated 14.2.2005 being an administrative or executive order cannot have retrospective effect so as to take away the right accrued to the respondent as per circular of 1993.
22. Considering the scope of the scheme "Dying in Harness Scheme 1993" then in force and the facts and circumstances of the case, the High Court rightly directed the appellant bank to reconsider the claim of the respondent for compassionate appointment in accordance with law and as per the Scheme (1993) then in existence. We do not find any reason warranting interference."
(Emphasis Supplied) The impugned order when tested on the anvil of the M. Mahesh Kumar (supra) cannot be given the stamp of approval. Consequently, it is THE HIGH COURT OF MADHYA PRADESH 7 WA.326.2015 (Nisar Ahmed Vs. State of M.P. and others) set aside. The respondents are directed to consider the claim of appellant for appointment on compassionate ground on the basis of the policy which was in vogue when his father died.
Let the consideration be there within a period of three months from the date of communication of this order.
Appeal is finally disposed of in above terms. There shall be no costs.
(Sanjay Yadav) (Ashok Kumar Joshi)
Judge Judge
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PAWAN
DHARKAR
2018.01.31
16:05:29 -08'00'