Madhya Pradesh High Court
Himanshu Sharma vs State Of M.P on 11 April, 2019
Equivalent citations: AIRONLINE 2019 MP 308
1
THE HIGH COURT OF MADHYA PRADESH
WP No. 6809 of 2012
Himanshu Sharma vs. State of MP & Others
Gwalior, Dated :11/04/2019
Shri RP Singh, counsel for the petitioner.
Shri Pawan Singh Raghuvanshi, Govt. Advocate for the respondents No. 1 and
2/ State.
This petition under Article 226 of the Constitution of India has been filed seeking the following reliefs:-
''7. It is, therefore, most humbly prayed that this Hon'ble Court may kindly be pleased to allow the instant petition and the respondent no.2 may kindly be directed to grant compassionate appointment to petitioner on the place of late father of petitioner in the interest of justice.
Any other relief which the Hon'ble Court thinks appropriate may be awarded in the interest of justice.'' During pendency of this petition, the respondent No.4, who is step-brother of the petitioner, was granted appointment on compassionate ground and accordingly, his step-brother was impleaded as respondent No.4 and following relief (Relief 7.1) was added in the Relief Clause:-
''7.1. That, the compassionate appointment order dt. 22/03/2013, passed by respondent No.2 i.e. by Collector Gwalior Annexure P-6, with respect to Mohan Sharma i.e. with respect to respondent No.4, being contrary to the settle norms, attending circumstances of the matter and against the compassionate policy is liable to set-aside, and petitioner is only entitled for the compassionate appointment from every corner of law.'' It is submitted by the counsel for the petitioner that after the death of mother of the petitioner, his father had performed second marriage and the respondent No.4 had born out of wedlock of his father and second wife and accordingly, he is his step- brother. After the death of his father, an application was filed for grant of succession certificate, which has been decided by order dated 30 th April, 2012 passed by Fourth Civil Judge, Class-I, Gwalior in Succession Case No.39 of 2011. It is submitted that 2 THE HIGH COURT OF MADHYA PRADESH WP No. 6809 of 2012 Himanshu Sharma vs. State of MP & Others however, the remaining property like house as well as valuable articles have been kept by his step-mother and he has been deprived of the entire property of his father and, therefore, the respondents had committed a mistake in granting appointment to the respondent No.4. It is further submitted that before granting appointment to the respondent No.4, the respondents have not considered the educational qualification of the respondent No.4. The respondent No.4 had failed in Class-VIII, whereas the petitioner has passed Class-XII, therefore, the petitioner was more qualified than the respondent No.4. Thus, the respondents could not have ignored Clause 3.1 of the Compassionate Policy, dated 18th August, 2008. It is further submitted that after the appointment is given to the respondent No.4, he has been ignored by the respondent No.4. Therefore, in the light of Clause 11.2 of the Policy of the year 2008, the appointment of the respondent No.4 is liable to be set aside.
Per contra, it is submitted by the Counsel for the State that in Clause 2.4 of the Policy, it has been provided that in case, if there are more than one eligible person/candidate for appointment on compassionate ground, then the appointment can be given to anyone of them on the recommendation of the wife of the deceased employee. In the present case, since the wife of the deceased employee had recommended in favour of the respondent No.4, therefore, in the light of Clause 2.4 of the Compassionate policy, dated 18th August, 2008, the respondents were left with no other option, but to give appointment on compassionate ground to the respondent No.4.
So far as the question of educational qualification of the respondent No.4 is concerned, it is submitted that the respondent No.4 has been granted appointment on the post of Peon. The petitioner, while amending the writ petition, has not taken a 3 THE HIGH COURT OF MADHYA PRADESH WP No. 6809 of 2012 Himanshu Sharma vs. State of MP & Others ground that the respondent No.4 was not having a minimum qualification for recruitment to the post of Peon. In absence of this factual dispute, the submission made by the counsel for the petitioner in this regard, may be ignored.
So far as the submission made by the counsel for the petitioner that after getting appointment the respondent No.4 has ignored the petitioner and he is not looking after him is concerned, it is submitted that the petitioner has not pleaded in this petition regarding the subsequent conduct of the respondent No.4. If the petitioner is of the view that the respondent No.4 has not complied with the conditions of the Compassionate Policy, then he is free to make a representation to the authorities in this behalf.
Heard the learned counsel for the petitioner.
Clause 2.4 of the Policy, dated 18th August, 2008 reads as under:-
^^2-4 ,d ls vf/kd vuqdaik fu;qfDr ds ik= lnL; gksus ij fnoaxr 'kkldh; lsod ds iRuh@ifr dh vuq'kalk ,oa ifr@iRuh ds u gksus ij ifjokj ds loZlEefr ls fdlh ,d lnL; dks vuqdaik fu;qfDr dh ik=rk gksxhA ifjokj esa lgefr u gksus ij lacfa /kr ftys ds dysDVj }kjk ;g fu.kZ; fy;k tkosxk fd fdls vuqdaik fu;qfDr nh tkosA^^ In the present case, the petitioner as well as his step-brother were eligible for appointment on compassionate ground. Under these circumstances, the respondents were left with no other option but to give appointment in accordance with the provisions of the Compassionate Policy. As per clause 2.4 of the Compassionate Policy, in case where there are more than one eligible person/candidate for appointment on compassionate ground, then the appointment to anyone of them, can be given on the recommendation of the wife of the deceased employee. In the present case, the wife of the deceased employee has recommended in favour of the respondent 4 THE HIGH COURT OF MADHYA PRADESH WP No. 6809 of 2012 Himanshu Sharma vs. State of MP & Others No.4. Under these circumstances, the respondents were left with no other option, but to accept the option/consent given by the respondent No.4. Thus, the appointment of the respondent No.4 cannot be quashed on the ground that the same has been made de hors the provisions of Compassionate Policy.
So far as the qualification of respondent No.4 is concerned, he has been granted appointment on the post of Peon. After the respondent No.4 was given appointment, the petitioner has amended the writ petition challenging the appointment order, but he has not raised any dispute with regard to his qualification to hold the post of Peon. In absence of any factual dispute, this Court is of the considered opinion that the petitioner cannot be allowed to raise this dispute verbally at this stage.
So far as the violation of Clause 11.2 of the Compassionate Policy is concerned, it reads as under:-
^^11-2 fnoaxr 'kkldh; lsod ds vkfJr dks vuqdaik fu;qfDr nsus dh fLFkfr essa vkosnd@vkosfndk ls fu;qfDr ds iwoZ bl vk'k; dk ,d opu i= fy;k tk;sxk fd og fnoaxr 'kkldh; lsod ds ifjokj ds vU; lnL;ksa dk leqfpr Hkj.k iks"k.k djsxk rFkk ckn esa fdlh Hkh le; ;fn ;g izekf.kr gks tk;s fd mlds }kjk ifjokj ds lnL;ksa dks vuns[kk fd;k tk jgk gS] vFkok mudk lgh <ax ls Hkj.k iks"k.k ugh fd;k tk jgk gS rks mldh fu;qfDr lekIr dh tk ldsxhA^^ This Clause deals with post appointment situation. The petitioner, in this writ petition, has not taken a stand by amending the petition that the respondent No.4 has violated Clause 11.2 of the Compassionate policy.
Under these circumstances, this Court is of the considered opinion that the petition sans merits and it is accordingly dismissed.
(G.S. Ahluwalia)
MKB Judge
MAHENDRA
KUMAR BARIK
2019.04.11 16:53:59
+05'30'