Madhya Pradesh High Court
Meenakshi Dubey vs Madhya Pradesh Poorva Kshetra Vidyut ... on 8 January, 2020
Equivalent citations: AIRONLINE 2020 MP 128
Author: Sanjay Yadav
Bench: Sanjay Yadav, Atul Sreedharan
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WA-756-2019
THE HIGH COURT OF MADHYA PRADESH
(Division Bench)
Writ Appeal No.756/2019
Meenakshi Dubey
versus
Madhya Pradesh Poorva Kshetra Vidyut Vitran Company Limited
and others
Shri Anubhav Jain, Advocate for appellant.
Shri Ankit Agrawal, Advocate for respondent No.3.
CORAM :
Hon'ble Mr. Justice Sanjay Yadav, Judge
Hon'ble Mr. Justice Atul Sreedharan, Judge
ORDER
(Jabalpur, dated : 08.01.2020) Per : Sanjay Yadav, J :-
This appeal under Section 2(1) of the Madhya Pradesh Uchcha Nyayalaya (Khandpeeth Ko Appeal) Adhiniyan, 2005, is directed against the order dated 08.01.2019 passed in Writ Petition No.9631/2017 whereby, challenge to order dated 20.01.2017 has been negatived.
2. That, by order dated 20.01.2017, claim of the petitioner for grant of compassionate appointment in lieu of death of her father was negatived on the ground that she does not fall in the category of 2 WA-756-2019 persons who are entitled for such appointment as stipulated in Clause 2.2 of the Chief General Manager's Order No. lk&435/7836- 37 dated 12.12.2014 which stipulates that "only son, unmarried daughter, widowed daughter or divorcee daughter dependent on the employee who dies in harness" are entitled for consideration for said appointment. As the petitioner was a married daughter, she was declined the appointment.
3. Father of the petitioner was employed as Senior Lineman with respondent-organization who died while in service on 05.04.2016. Petitioner, married daughter, living with her husband, gave a representation seeking appointment on compassionate ground on the plea that her mother is old and the brother is vagabond and has not borne the responsibility. It was stated that the petitioner was dependent on his parents and almost separated with her husband. Evidently, no order regarding judicial separation or of divorce was filed. Be that as it may. The petitioner was not falling within the category under Clause 2.2 of the Policy.
4. Learned Single Judge observing that the petitioner does not fall into any of the category of Clause 2.2 and that the petitioner did not challenge its validity, declined indulgence. It also observed :
"That apart, the division bench in the similar circumstances vide order dated 23/10/2017 passed in 3 WA-756-2019 WP No.270/2017 in the case of Sanjay Shriwas Vs. The Chairman-cum-Managing Director MP Paschim Kshetra Vidyut Vitaran Co.Ltd & another and vide order dated 10/7/2018 in WP No.7713/2016 in the case of Ravi Talimpuri Vs. State of MP & four others has upheld the policy as also the order of rejection of compassionate appointment based upon the Policy of 2013.
That apart, in the present case, the claim for compassionate appointment is in respect of the married daughter and there is nothing on record to show that the married daughter has no means to support herself. Having regard to the aforesaid, I am of the opinion that the respondents have not committed any error in rejecting the petitioners case for compassionate appointment by the impugned order dated 14/7/2017 because the petitioner is not eligible as per the terms of the Policy of Compassionate Appointment of 2013."
5. Appellant questions the order on the contention that the view taken by learned Single Judge is contrary to the decision by a Division Bench at Indore in the case of Smt. Meenakshi vs State of Madhya Pradesh & others : Writ Petition No.3769/2017 decided on 09.10.2018; wherein the co-ordinate Bench, dwelling on Clauses 2.2, 2.3 and 2.4 of the Policy of the State Govt. for compassionate appointment, which mandates :
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WA-756-2019 2-2 e`rd 'kkldh; lsod ds vkfJr ifr@ifRu }kjk ;ksX;rk u j[kus vFkok Lo;a vuqdaik fu;qfDr u ysuk pkgs rks mlds }kjk ukekafdr iq= ;k vfookfgr iq=h A 2-3 'kkldh; lsod dh e`R;q ds le; ml ij iw.kZr% vkfJr gksdj mlds lkFk jg jgh gks vFkok mijksDr ik= lnL; u gksus dh fLFkfr esa fo?kok iq=o/kq tks 'kkldh; lsod dh e`R;q ds le; ml ij iw.kr% vkfJr gksdj muds lkFk jg jgh gks A 2-4 fnoaxr 'kkldh; lsod dh larku flQZ iq=h@iqf=;ka gks vkSj og fookfgr gks rks fnoaxr 'kkldh; lsod ds vkfJr ifr@ifRu }kjk ukekafdr fookfgr iq=h A ;g Li"V fd;k tkrk gS fd e`rd 'kkldh; lsod ds vkfJr ifr@iRuh thfor gksus ij gh fookfgr iq=h dks vuqdaik fu;qfDr dh ik=rk gksxh A (,sls vuqdaik fu;qfDr ikus okyh iq=h dks 'kkldh; lsod ds vkfJr ifr@ifRuh ds ikyu iks"k.k dh ftEesnkjh dk 'kiFk i= nsuk gksa)
- and by relying on the decision by Hon'ble Supreme Court in the case of Indian Young Lawyers Association vs The State of Kerala (Writ Petition (Civil) No.373 of 2006) wherein, the restriction upon entry of women by virtue of provisions contained under the Kerala Places of Public Worship (Authorization of Entry) Act, 1965 was questioned on the anvil of Articles 14, 15, 25 and 51(A)(e) of the Constitution, held Clause 2.2 and 2.4 as violative of Article 14, 15, 25 and 51(A)(e) of the Constitution by observing :5
WA-756-2019
7. The aforesaid paragraphs make it very clear that inspite of glorifying that the women are goddesses, they have been subjected to discrimination time and again. If a male married dependent child can be considered for grant of compassionate appointment, there is no justification in not considering the female married child, who is also totally dependent upon the deceased government servant. The Constitution of India does not provide for such discrimination. Man and woman are to be treated with equality crossing all artificially created barriers and therefore, the policy issued by the State Government to the extent it discriminates between male child and female child specially, Clause 2.2 and 2.4 to the extent the right of the married daughter specially when the deceased government servant was having male children also, has been curtailed is certainly unconstitutional and violative of Article 14, 15, 25 and 51(A)(e) of the Constitution of India. Net result is that the policy to the extent it debars married girl to be considered for grant of compassionate appointment is quashed and the respondent/State is directed to consider the case of the petitioner on merits even though she is married keeping in view policy dated 29.09.2014.
6. Close reading of the order in Smt. Meenakshi (supra) reveals that the appointment on compassionate ground has been treated as a right.6
WA-756-2019
7. Trite it is that, appointment on compassionate ground is given solely on humanitarian grounds with the sole object to provide immediate relief to the employee's family to tide over the sudden financial crisis and cannot be claimed as a matter of right. Appointment based solely on descent is inimical to our constitutional scheme, and ordinarily public employment must be strictly on the basis of open invitation of applications and comparative merit, in consonance with Articles 14 and 16 of the Constitution of India. No other mode of appointment is permissible. Nevertheless, the concept of compassionate appointment has been recognised as an exception to the general rule, carved out in the interest of justice, in certain exigencies, by way of a policy of an employer, which partakes the character of the service rules. That being so, it needs little emphasis that the scheme or the policy, as the case may be, is binding both on the employer and the employee. Being an exception, the scheme has to be strictly construed and confined only to the purpose it seeks to achieve. (Please see :
Bhawani Prasad Sonkar vs Union of India (2011) 4 SCC 209).
8. In view whereof, we respectfully disagree with their Lordships decision in Smt. Meenakshi (supra) in holding Clauses 2.2 and 2.4 of the Policy of compassionate appointment 2014 as ultra vires. 7
WA-756-2019 Therefore, let the record be placed before Hon'ble Chief Justice for placing the matter before Larger Bench for deciding the issue :
"Whether in the matter of compassionate appointment covered by Policy framed by the State Government wherein, certain class of dependent which includes unmarried daughter, a widowed daughter and a divorced daughter and in case of a deceased Govt. servant who only has daughter, such married daughter who was wholly dependent on Govt. servant subject to she giving her undertaking of bearing responsibility of other dependents of the deceased Govt. servant, Clause 2.2 and 2.4 can be said to be violative of Article 14, 15, 25 and 51(A)(e) of the Constitution."
9. So far as present case is concerned, reference to larger Bench does not deter us from deciding the matter because in respondent- organisation, they have their own policy for compassionate appointment. The Scheme was brought in vogue on 03.06.2013 which was amended on 29.12.2014. The Scheme was challenged before Indore Bench of this High Court in Sanjay Shrivas vs Chairman-cum-Managing Director, M.P. Paschim Kshetra Vidyut Vitaran Company Ltd. : Writ Petition No.5386/2015 decided on 13.02.2017, wherein it is held :
"9/ The new scheme of compassionate appointment was introduced on 3rd June, 2013 which was amended on 8 WA-756-2019 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:
1-1 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,xkA 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 9 WA-756-2019 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 petitioner's 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 reported in (1994) 4 SCC 138) . 15/ Since it is not a vested right therefore, respondent's option to change the policy of compassionate appointment is not closed. (See Kuldip 10 WA-756-2019 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 11 WA-756-2019 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 petitioner's challenge to the amended policy of 2013 for compassionate appointment cannot be accepted."
10. The order passed in Sanjay Shrivas (supra) is affirmed by the Division Bench at Indore in an intra Court appeal : Writ Appeal No.270/2017 decided on 23.10.2017.
11. In view whereof, the petitioner being a married daughter and not shown to be dependent on her father, we perceive no illegality in the impugned order as will call for an interference.
12. Consequently, the appeal is disposed of in above terms. No costs.
(Sanjay Yadav) (Atul Sreedharan)
JUDGE JUDGE
vinod
Digitally signed by VINOD
VISHWAKARMA
Date: 2020.01.16 18:40:57
+05'30'