Madhya Pradesh High Court
The State Of Madhya Pradesh vs Laxman Prasad Raikwar on 4 October, 2018
Bench: Hemant Gupta, Vijay Kumar Shukla, Subodh Abhyankar
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HIGH COURT OF MADHYA PRADESH : JABALPUR
REVIEW PETITION No. 868/2018
The State of M.P. & Ors.
Versus
Laxman Prasad Raikwar
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CORAM :
Hon'ble Shri Justice Hemant Gupta, Chief Justice.
Hon'ble Shri Justice Vijay Kumar Shukla, Judge.
Hon'ble Shri Justice Subodh Abhyankar, Judge.
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Shri Purushaindra Kaurav, Advocate General with Shri Vishal Dhagat and Shri
Amit Seth, Government Advocate for the petitioner/State.
None for the respondent.
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Whether approved for reporting ? Yes/No
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ORDER
(Jabalpur, dated: 04.10.2018) Per: Vijay Kumar Shukla, J.-
In view of the divergent views of two Division Bench of this Court in W.A. No. 326/2017 (Madhya Pradesh Electricity Board Vs. Chandra Bosh Tripathi) and a Division Bench at Gwalior Bench of this Court in W.A. No. 326/2015 (Nishar Ahmed Vs. State of M.P.) the following question was referred to the larger Bench:
"Whether the right for consideration of compassionate appointment is a vested right?" and "in case of consideration of case of compassionate appointment pursuant to death of deceased employee, whether the policy prevailing at the time of death of employee or the policy prevailing at the time of application for compassionate appointment would be applicable?".
2. The Division Bench at Jabalpur in W.A. No. 326/2017 (Madhya 2 Pradesh Electricity Board Vs. Chandra Bosh Tripathi) following the ratio laid down by the Full Bench of this Court in the case of Bank of Maharashtra & Ors. Vs. Manoj Kumar Dehria & another 2010 (4) MPHT 18(FB) held that the policy of compassionate appointment prevailing at the time of consideration of the application shall be applicable and not the policy prevailing at the time of death of the Government Servant. The Division Bench at Gwalior Bench in W.A. No. 326/2015 (Nishar Ahmed Vs. State of M.P.) held that the claim for appointment on compassionate ground will be considered on the basis of policy which was prevailing at the time of death of the employee, referring the judgment passed by the Apex Court in the case of Canara Bank and another Vs. M. Mahesh Kumar (2015)7 SCC 412.
3. In order to consider the issue that whether the right for consideration of compassionate appointment is a 'vested right' it is apposite to refer the various judgments of the Apex Court. In the case of Umesh Kumar Nagpal Vs. State of Haryana & Ors. (1994) 4 SCC 138, Steel Authority of India Ltd. Vs. Madhusudan Das (2008)15 SCC 560, Union of India and another Vs. B. Kishan (2011)4 Scale 298, State of Haryana Vs. Naresh Kumar Bali (1994) 4 SCC 448, SBI & Ors. Vs. Jaspal Kaur (2007)9 SCC 571 and State Bank of India and another Vs. Raj Kumar (2010)11 SCC 661 the Apex Court has been pleased to held that the consideration for appointment of compassionate ground is contrary to the Articles 14 & 16 of the Constitution of India and it is only in the nature of concession and, therefore, it does not create a vested right in favour of the claimant. The Court 3 should not stretch the provision by liberal interpretation beyond permissible limits on humanitarian ground. Such appointment should, therefore, be provided immediately to redeem the family in distress.
4. The Apex Court in the case of State Bank of India and another Vs. Raj Kumar (2010)11 SCC 661 had an occasion to discuss the object of the compassionate appointment scheme and clarified the judgment in the case of Jaspal Kaur (Supra). It was held that the appointment under the scheme can be made only if the scheme is in force and not after it is abolished/withdrawn. It follows therefore, therefore, that when a scheme is abolished, any pending application seeking compassionate appointment under the scheme will also cease to exist, unless saved. The mere fact that an application was made when the scheme was in force, will not by itself create a right in favour of the applicant. It was further held that there is no vested right for compassionate appointment and therefore, the policy enforce at the time of consideration of application would apply and not the scheme enforce earlier to the said scheme.
5. In the case of MGB Gramin Bank Vs. Chakrawarti Singh (2014)13 SCC 583, the Apex Court again had taken into consideration the said issue and clarifying the same in para 6, 11 & 15, which are reproduced as under:
"6. Every appointment to public office must be made by strictly adhering to the mandatory requirements of Articles 14 and 16 of the Constitution. An exception by providing employment on compassionate grounds has been carved out in order to remove the financial constraints on the 4 bereaved family, which has lost its breadearner. Mere death of a Government employee in harness does not entitle the family to claim compassionate employment. The Competent Authority has to examine the financial condition of the family of the deceased employee and it is only if it is satisfied that without providing employment, the family will not be able to meet the crisis, that a job is to be offered to the eligible member of the family. More so, the person claiming such appointment must possess required eligibility for the post. The consistent view that has been taken by the Court is that compassionate employment cannot be claimed as a matter of right, as it is not a vested right. The Court should not stretch the provision by liberal interpretation beyond permissible limits on humanitarian grounds. Such appointment should, therefore, be provided immediately to redeem the family in distress. It is improper to keep such a case pending for years.
11. The word "vested" is defined in Black's Law Dictionary (6th Edition) at page 1563, as 'vested'- Fixed; accrued; settled; absolute; complete. Having the character or given in the rights of absolute ownership; not contingent; not subject to be defeated by a condition precedent. Rights are 'vested' when right to enjoyment, present or prospective, has become property of some particular person or persons as present interest; mere expectancy of future benefits, or contingent interest in property founded on anticipated continuance of existing laws, does not constitute vested rights.
15. The Court considered various aspects of service jurisprudence and came to the conclusion that as the appointment on compassionate ground may not be claimed as a matter of right nor an applicant becomes entitled automatically for appointment, rather it depends on various other circumstances i.e. eligibility and financial conditions of the family, etc., the application has to be considered in accordance with the scheme. In case the Scheme does not create any legal right, a candidate cannot claim that his case is to be considered as per the Scheme existing on the date the cause of action had arisen i.e. death of the incumbent on the post. In State Bank of India & Anr. (supra), this Court held that in such a situation, the case under the new Scheme has to be considered."
6. The Full Bench of this Court in the case of Manoj Kumar Dehria (Supra) framed specific issue that in the case of compassionate 5 appointment which policy of the Government should be followed while considering the application for compassionate appointment which are as follows:
"(1) The policy prevailing at the time of death of employee?
Or (2) The policy prevailing at the time of application for compassionate appointment?
Or (3) The policy prevailing at the time of prevailing at the time of consideration of the application for compassionate appointment?"
and held in para-33 as under :
"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 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 6 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 treatment in accordance with law."
7. In the case of SBI Vs. Jaspal Kaur (2007)9 SCC 571, taking into consideration that the employee of the bank had died on 01.08.1999 and the widow of the employee applied for compassionate appointment on 05.02.2000. The competent authority of the Bank rejected the application for compassionate appointment on 07.01.2002 in view of the Scheme vis-a-vis the financial position of the family. Against the decision of the Bank, the employee filed a writ petition before the Punjab & Haryana High Court who had directed to consider the case of the petitioner by applying the scheme formulated on 04.08.2005wherein the application was made in the year, 2000. In this back ground the Apex Court has held that the claim of the compassionate appointment under a scheme of particular year cannot be 7 decided in the light of subsequent scheme that came into force much after the claim.
8. In the case of Canera Bank Vs. M. Mahesh Kumar (Supra), the Bank has challenged the order passed by the High Court directing for consideration on the application for compassionate appointment as per scheme dying in "harness scheme, 1993". The Apex Court has taken note of the facts that initially there was a scheme of compassionate appointment under "dying in harness scheme" issued by Circular No. 154/1993 w.e.f. 01.05.1993. The claim was resisted by the Bank on the ground that the financial condition of family members of the deceased employee was good and the said scheme was replaced with the scheme dated 14.02.2015 (HO Circular No. 35/2005) whereby the scheme of compassionate appointment was scrapped and in lieu of the same a new scheme of ex-gratia payment was introduced. However, the scheme of 2005 was also superseded by Scheme of 2014 which has revived the scheme providing for compassionate appointment. In para -14 of the judgment in Canara Bank (Supra) it was noted that the scheme of compassionate appointment was revived and therefore, it was held that the Bank was not justified in contending that the application for compassionate appointment of the respondent cannot be considered in view of passage of time. Thus the judgment passed by the Apex Court in the case of Canara Bank (Supra) is on consideration of the fact that the scheme for compassionate appointment was again introduced and revived.
9. In view of the aforesaid, we follow the ratio laid down by the 8 Full Bench of this Court in the case of Bank of Maharasthra Vs. Manoj Kumar Dehria (Supra) and the reference is answered that compassionate appointment can not be claimed as a matter of right as it is not a vested right and the policy prevailing at the time of consideration of the application for compassionate appointment would be applicable.
10. In the light of the aforesaid opinion, the matter be placed beore the appropriate Bench for orders as per roster.
(Hemant Gupta) (Vijay Kumar Shukla) (Subodh Abhyankar)
Chief Justice Judge Judge
amitabh
Digitally signed by AMITABH RANJAN
Date: 2018.10.11 03:40:33 -07'00'
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HIGH COURT OF MADHYA PRADESH : JABALPUR
REVIEW PETITION No. 868/2018
The State of M.P. & Ors. Versus Laxman Prasad Raikwar Jabalpur Dated 04.10.2018 Shri Purushaindra Kaurav, Advocate General with Shri Vishal Dhagat and Shri Amit Seth, Government Advocate for the petitioner/State.
None for the respondent.
Order passed separately.
Signed and dated.
(Hemant Gupta) (Vijay Kumar Shukla) (Subodh Abhyankar)
Chief Justice Judge Judge
amitabh