Madhya Pradesh High Court
Ayyub Khan vs M.P. Paschim Kshetra Vidyut Vitran ... on 27 February, 2017
WP-5383-2015
(AYYUB KHAN Vs M.P. PASCHIM KSHETRA VIDYUT VITRAN COMPANY LTD.)
27-02-2017
Shri C.M. Nair, learned counsel for the petitioner.
Shri M.S. Dwivedi, learned counsel for the respondent.
Petitioner has filed the present petition claiming
compassionate appointment by challenging the
Compassionate Appointment Policy' 2013 (Amended), so
far it relates to the condition No.1.1(a) depriving
petitioner from getting compassionate appointment.
Facts of the case are as under:
Petitioner's father was appointed as Line Helper/Assistant Line Man in the erstwhile Madhya Pradesh State Electricity Board vide order dated 23.10.1986. Unfortunately, he died on 20.05.2010 on duty at 33/11 KV Sub-station Harsoud. The Assistant Engineer has informed about his death vide letter dated 21.05.2010 to Executive Engineer.
The petitioner being a son and qualified for the appointment submitted an application for compassionate appointment under the Policy dated 30.01.1997. His application was forwarded to the respondent No.1 vide letter dated 21.07.2010 (Annexure P/6). The respondent has rejected the claim of the petitioner by letter dated 29.01.2015 on the basis of condition No.1.1(a) of Policy for Compassionate Appointment'2013 (Amended), hence, the present petition.
After notice, the respondent filed the return and submitted that the case of the petitioner does not fall in any of the category enumerated in Clause 1.1(a) or 1.1(b) of the Compassionate Policy of 2013 (Amended), therefore, respondent has rightly rejected his claim. The petitioner has challenged the aforesaid condition 1.1(a) in this petition that the said condition is discriminatory and by which the respondent cannot debar the petitioner to claim compassionate appointment.
Simultaneously, Shri Nair, learned counsel for the petitioner submits that father of the petitioner died on duty, therefore, he would be covered under Clause 1.1(b) since the respondents are not treating death of petitioner in any of the category, therefore, the petitioner was required to challenge the said policy. Shri Dwivedi, learned counsel for the respondent submits all the objections raised in the petition has been decided by this Court in W.P.No.5386/2015, vide order dated 13.02.2017.
Shri Nair, learned counsel for the petitioner tried to distinguish the facts of the present case with W.P.No.5386/2015, in which the father of the petitioner died due to heart attack and in present case father of the petitioner died while performing the duties in substation. Clause 1.1(a) and (b) specifically provides that the death of the employee held due to accident occurred while performing the duties. In the present case, no such accident has been reported. The father of the petitioner died while working on the duty, but died not due to accident, therefore, there is no distinguishable fact in the present case.
All the grounds raised in the present petition has been decided by this Court in W.P.No.5386/2015. Operative part of the order dated 13.02.2017, passed in W.P.No.5386/2015 is produced below:
â7/ No error in the above action of the respondents is found because an application for compassionate appointment is required to be considered in accordance with policy prevailing at the time of its consideration (See: Bank of Maharashtra and another Vs. Manoj Kumar Deharia and Another reported in ILR (2010) MP 1876 (FB)).
8/ The petitionerâs contention that he should be given appointment under 1997 policy has also no force in view of the above Full Bench Judgment because at that time policy of 1997 was not in force and in the similar circumstances writ petitions of other petitioners have been rejected vide order dated 14/1/08 passed in WP No. 6286/06 in the case of Lokendra Ambia Vs. MP State Electricity Board and others, Division Bench judgment in WA No. 275/08 in the matter of Lokendra Ambia Vs. MP State Electricity Board and others and in the matter of Ankit Verma Vs. M.P. Madhya Kshetra Vidyut Vitran Company reported in 2016(1) MPLJ 418. 9/ The new scheme of compassionate appointment was introduced on 3rd June, 2013 which was amended on 29/12/14 by incorporating clauses 1.1(a) & 1.1(b) confining benefit of the scheme only to certain category of persons in respect of old cases prior to 10/4/12. Clauses 1.1 & 3.8 relevant for present controversy provide as under:
â1-1 e/;izns'k if'pe {ks= fo?kqr forj.k daiuh esa dk;Zjr (1) e/;izns'k jkT; fo?kqr eaMy ds ,sls dkfeZd tks jkT; 'kklu dh vf/klwpuk fnukad 10-04-2012 ds }kjk if'pe {ks= daiuh dks vafre :i ls varfjr ,oa vkesfyr gq, gS ,oa daiuh esa gh dk;Zjr gS ;k (2) if'pe {ks= daiuh }kjk fu;qDr ,oa ftudh lsok;sa daiuh ds }kjk fu;af=r gSa ,oa daiuh lsokdky esa e`R;q gqbZ gks] ds vkfJrksa dks dafMdk 2 ,oa 3 esa of.kZr ik=rk dh 'krksZ ds vuqlkj vuqdaik fu;qfDr nh tk;sxhA 1-1 (v) ,sls dkfeZd] ftudh e`R;q fnukad 15-11-2000 ds i'pkr~ fdarq 10-04-2012 ds iwoZ e-iz-jk-fo-e.My@ daiuh dk dk;Z djrs le;] vkdfLed nq?kZVuk] fo?kqr nq?kZVuk] geykojksa }kjk gR;k vFkok dk;Z ds nkSjku okgu nq?kZVuk] ds dkj.k gqbZ gks] ds vkfJrksa dks dafMdk 2 ,oa 3 esa of.kZr ik=rk dh 'krksZ ds vuqlkj vuqdaik fu;qfDr nh tkosxhA 1-1 (c) nq?kZVuk e`R;q ls vfHkizsr gS] fd daiuh ds dk;Z djrs le; vkdfLed nq?kZVuk] fo?kqr nq?kZVuk] geykojksa }kjk gR;k vFkok dk;Z djrs le; okgu nq?kZVuk ds dkj.k gqbZ e`R;qA 3-8 dafMdk 1 ds n'kkZ;s vuqlkj fnukad 10-04-2012 ds iwoZ ,oa fnukad 15-11-2000 ds i'pkr~ ds nq?kZVuk e`R;q ds izdj.kksa dks NksMdj] 'ks"k vLohd`r] fujkd`r ,oa yafcr izdj.kksa ij fopkj ugha fd;k tk,xkAâ 10/ As per clause 1.1(a) the dependents of the employee dying in harness due to sudden accident, electrocution, murder or vehicular accident while doing the work of company/board after 15/11/2000 and prior to 10/4/12 working in earlier MP State Electricity Board/company are eligible for compassionate appointment and as per clause 3.8 the cases except relating to accidental death after 15/11/2000 and prior to 10/4/12 either rejected, decided or pending, will not be considered.
11/ Since the father of petitioner had died on account of heart attack therefore, in terms of clauses 1.1(a) and 3.8 of the policy petitionerâs case falls outside the purview of consideration under the new amended policy of 2013.
12/ The matter does not end here because the petitioner has challenged the new amended policy of 2013 itself on the ground of being arbitrary and unreasonable.
13/ The compassionate appointment is an exception to the General Rule of appointment to public office. As a general rule appointment to public office is to be made strictly in accordance with mandatory requirement of Articles 14 & 16 of the Constitution. The 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.
14/ Compassionate appointment is not a vested right (See. MGB Gramin Bank Vs. Chakrawarti Singh reported in AIR 2013 SC 3365, Umesh Kumar Nagpal Vs. State of Haryana &others reported in (1994) 4 SCC 138) .
15/ Since it is not a vested right therefore, respondentâs option to change the policy of compassionate appointment is not closed. (See Kuldip Singh Vs. Government, NCT Delhi reported in AIR 2006 SC 2652).
16/ It is no longer res integra that compassionate appointment is to be granted on consideration of several factors such as eligibility, financial condition of the company etc. as may be provided in the scheme and such a right is a legal right which is creation of terms of the applicable scheme. 17/ Power to frame policy by executive decision or by legislation also includes power to withdraw the same unless in the former case, it is done by malafide exercise of power or the decision or action taken is in abuse of power. The doctrine of legitimate expectation plays no role when the appropriate authority is empowered to take a decision by an executive policy or under law. The authority also has full range of choice within the limits of its executive or legislative power. (See: P.T.R. Exports (Madras) Pvt. Ltd. And others Vs. Union of India and others reported in (1996) 5 SCC 268).
18/ In the present case the amended policy reveals that benefit of compassionate appointment in the cases concerning the period prior to 10/4/2012 is restricted to only certain categories of persons. The justification for providing cut off date as 10/4/12 for such cases is given in para 1.1 of the scheme itself. Under Clause 1.1(a) of the amended policy, the new scheme has retrospective application for the period prior to 10/4/2012 only to the dependents of the employee dying in harness on account of accidental death in certain specified eventualities while doing the work of the Board/company. Such employees form separate class, therefore, the classification is reasonable having nexus with object sought to be achieved. The policy is not tailor made to favour any particular person nor malafides are reflected and it is also neither whimsical nor has been issued with ulterior motive. Hence the petitionerâs challenge to the amended policy of 2013 for compassionate appointment cannot be accepted.
19/ Keeping in view the above analysis, the petitioner cannot be granted the benefit of judgment of the Supreme court in the matter of The Energy and Resources Institute Vs. Suhrid Sudarshan Shah and others reported in AIR 2016 SC (Civil) 2475 and in the matter of Reliance Energy Ltd. And another Vs. Maharashtra State Road Development Corporation Ltd. And others reported in (2007) 8 SCC 1.
20/ Hence I am of the opinion that the writ petition filed by petitioner is devoid of any merit and petitioner is not entitled for the relief of compassionate appointment since his case is not covered by the above policy of compassionate appointment.
The writ petition is accordingly dismissed.â In view of the above, I do not find any reason to interfere with the impugned order.
Petition is dismissed.
(VIVEK RUSIA) JUDGE