Madhya Pradesh High Court
Bhagwant Rao Shithole vs Food Corporation Of India Thr on 17 July, 2015
1 WP.1995/2015
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
SB: Justice Sujoy Paul
Writ Petition No.1995/2015
Bhagwant Rao Shithole
Vs.
Food Corporation of India & Ors.
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Shri Devendra Sharma, Advocate for the petitioner.
Shri A.K. Agrawal, Advocate for the respondents / FCI
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Writ Petition No. 1012/2015
Abhishek Sharma
Vs.
Food Corporation of India & Ors.
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Shri D.P.Singh, Advocate for the petitioner.
Shri A.K. Agrawal, Advocate for the respondents / FCI
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Writ Petition No. 1950/2015
Ashish Jain
Vs.
Food Corporation of India & Ors.
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Shri Devendra Sharma, Advocate for the petitioner.
Shri A.K. Agrawal, Advocate for the respondents / FCI
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Writ Petition No. 1951/2015
Ajay Kushwah
Vs.
Food Corporation of India & Ors.
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Shri Devendra Sharma, Advocate for the petitioner.
Shri A.K. Agrawal, Advocate for the respondents / FCI
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Writ Petition No. 1952/2015
Pradeep Singh
Vs.
Food Corporation of India & Ors.
2 WP.1995/2015
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Shri Devendra Sharma, Advocate for the petitioner.
Shri A.K. Agrawal, Advocate for the respondents / FCI
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Writ Petition No. 1954/2015
Nirmal Kumar Jatav.
Vs.
Food Corporation of India & Ors.
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Shri Devendra Sharma, Advocate for the petitioner.
Shri A.K. Agrawal, Advocate for the respondents / FCI
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Writ Petition No. 1955/2015
Mukesh Kushwah
Vs.
Food Corporation of India & Ors.
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Shri Devendra Sharma, Advocate for the petitioner.
Shri A.K. Agrawal, Advocate for the respondents / FCI
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Writ Petition No. 1956/2015
Ram Prakash Kushwah
Vs.
Food Corporation of India & Ors.
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Shri Devendra Sharma, Advocate for the petitioner.
Shri A.K. Agrawal, Advocate for the respondents / FCI
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Writ Petition No. 1957/2015
Rajendra Kumar Harijan
Vs.
Food Corporation of India & Ors.
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Shri Devendra Sharma, Advocate for the petitioner.
Shri A.K. Agrawal, Advocate for the respondents / FCI
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Writ Petition No. 2114/2015
Kapil Kumar sharma
Vs.
Food Corporation of India & Ors.
3 WP.1995/2015
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Shri Amit Lahoti, Advocate for the petitioner.
Shri A.K. Agrawal, Advocate for the respondents / FCI
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Writ Petition No. 2132/2015
Surendra Singh
Vs.
Food Corporation of India & Ors.
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Shri Devendra Sharma, Advocate for the petitioner.
Shri A.K. Agrawal, Advocate for the respondents / FCI
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Writ Petition No. 3544/2015
Vinod Kumar Bhatele
Vs.
Food Corporation of India & Ors.
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Shri Devendra Sharma, Advocate for the petitioner.
Shri A.K. Agrawal, Advocate for the respondents / FCI
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Writ Petition No. 3732/2015
Brij Kumar Guppa
Vs.
Food Corporation of India & Ors.
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Shri Devendra Sharma, Advocate for the petitioner.
Shri A.K. Agrawal, Advocate for the respondents / FCI
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ORDER
( 17 / 07 / 2015) Since singular point is involved in this batch of petitions, petitions were analogously heard and decided by this common order.
2. The petitioners are aggrieved by similar orders whereby the applications seeking compassionate appointment are rejected on the ground that they are married. Admittedly, petitioners are dependent of deceased employees. On the death of employee, petitioners submitted their candidature / application for grant of compassionate appointment. It is rejected by assigning singular reason that 4 WP.1995/2015 petitioners are married.
3. Shri D.P.Singh and Shri Devendra Sharma, learned counsel for the petitioners criticized the said orders and submit that under the policy, petitioners are entitled for consideration.
4. Shri Arvind Agrawal, Advocate for the FCI, submits that for the purpose of considering application for compassionate appointment, the FCI has adopted the policy made by Department of Personal and Training ( DOP & T). He drew the attention of this Court on the various policies filed along with the return. It is fairly admitted by him that as per policy dated 9th October, 1998 the son is treated as dependent. Note (I) defines "Dependent Family Members". This includes spouse, son (including adopted son), daughter (including adopted daughter), brother or sister (in the case of unmarried Government Servant) etc. Shri Agrawal fairly submits that in basic policy dated 9th October, 1998, it is not mentioned that married son is not eligible for compassionate appointment. However, in subsequent policy dated 30th May, 2013, it is mentioned that married son is not eligible. Since, the FCI has adopted the policy of (DOP & T), they have rightly rejected the applications of married persons / petitioners. During the course of arguments, he admitted that as per FAQ dt.25.02.2015 even application of married son can be considered if he is otherwise eligible. However, It is submitted that this decision is not retrospective in nature and earlier settled cases cannot be reopened.
5. No other point is pressed by learned counsel for the parties.
6. I have heard learned counsel for the parties and perused the record.
7. As noticed above, in the main policy dated 9th October, 1998 there is no impediment that married son cannot be considered for grant of compassionate appointment. Reliance is placed on document dated 30th May, 2013. A careful reading of this order shows that it is termed as "frequently asked question (FAQ)" in relation to compassionate appointment. In answer to question No. 13 it is mentioned that married son cannot be treated as dependent of Government servant. These answers are given by Director (E.I). It is clear that answers given in these FAQs are explanation / 5 WP.1995/2015 interpretation by the Director (E.I). In the main enabling provision, there is no impediment that married son cannot be treated as Dependants. It appears that Department itself realized this mistake and then passed the order dated 25th February, 2015. It reads as under :-
S.No. Question Answer
60. Whether 'married son' Yes, if he is otherwise fulfills all the other can be considered for requirements of the Scheme i.e. he is otherwise compassionate eligible and fulfills the criteria laid down in this appointment? Department's O.M. dated 16th January, 2013. This would be effective from the date of issuance of this FAQ viz. 25th February, 2015 and the cases of compassionate appointment already settled w.r.t. FAQs dated 30th May, 2013 may not be reopened.
Sr.No.13 of the FAQs dated 30th May, 2013 may be deemed to have been modified to this extent.
8. A plain reading of this decision dated 25th February, 2015 makes it clear that Department has realized that a married son is eligible for compassionate appointment under the scheme, if he is otherwise eligible and fulfills criteria laid down in the policy. FAQ dated 30th May, 2013 and FAQ dt. 25 February, 2015 are based on the main policy. The basic policy nowhere deprives the married son from consideration, if he is otherwise eligible. The basic purpose of grant of compassionate appointment is to provide immediate helping hand to the dependents of an employee. If dependent is otherwise eligible, there is no justification in depriving him from his right of consideration. No clarification or answer which takes away the basic object and purpose of the policy can sustain judicial scrutiny.
9. In (1997) 1 SCC 641 (Director General of Posts and Another Vs. B. Ravindran and Another) the Apex Court opined that clarificatory instructions cannot supersede or take away any right which was flowing from main provision. In (2008) 7 SCC 353 (Tamil Nadu Electricity Board and Anr. Vs. Status Spinning Mills Limited and Anr.) the Apex Court opined that if clarification is given, it could be given retrospective operation. High Court's order in this regard is upheld.
10. In the opinion of this Court, the petitioners are entitled to be 6 WP.1995/2015 considered for compassionate as per the main scheme. They being dependent sons have a right of consideration under the main scheme. The respondents cannot deprive the petitioners from such consideration by putting cut of date. This kind of cut of date will divide a homogeneous class and create a class within the class. This will be wholly unconstitutional and violation of Article 14 of the Constitution. Thus, in the fitness of things, the petitioners' cases are required to be considered as per the main policy dated 9th October, 1998. The impediment of cut of date, as per circular dated 25th February, 2015 will not come in the way of petitioners.
11. Resultantly, impugned order in all the writ petitions are set aside. Respondents are directed to consider the cases of the petitioners for compassionate appointment. Their cases cannot be rejected on the ground that they are married. If they are otherwise eligible, their cases be considered by respondents. The respondents shall take a decision on the pending applications of the petitioners within 90 days from the date of communication of this order.
12. Petitions are allowed to the extent indicated above.
13. The Registry is directed to keep a true of this order in all the connected matters.
(Sujoy Paul)
sarathe Judge