Madhya Pradesh High Court
Deepak Kushwaha vs The Managing Director Madhya Pradesh ... on 10 November, 2017
~1~
W.P. No. 5253/2016
Indore, Dated: 10/11/2017
Shri Abhishekh Singh Rathore, learned counsel for
petitioner.
Shri M.S. Dwivedi learned counsel for respondents.
Heard finally with consent.
By this writ petition, the petitioner is seeking a direction to respondents to consider his case for compassionate appointment.
The case of petitioner is that his father Ram Prasad Kushwaha who was employed with respondents had died in harness on 24/4/2006. The petitioner had filed an application for compassionate appointment on 16/6/2006 and thereafter he had submitted reminder on 9/7/07 but no action was taken and therefore, he has filed the present writ petition.
The respondents have filed their reply taking the stand that when petitioner's father had died and petitioner had made an application for compassionate appointment at that time there was a ban on compassionate appointment. Their stand is that vide notification dated 1/9/2000 due to financial constraints the erstwhile board had taken a policy decision to impose a ban on compassionate appointment. The amended policy of compassionate appointment 2013 was introduced and clause 1.1(a) & 1.1(b) of the amended policy provides for consideration of past cases for compassionate appointment in case where the employee concerned had died in harness between 15/11/2000 to 10/4/2012 with an exception that only the cases of those employees dying during this period by causality, electrical accident, attack or vehicular accident during ~2~ the employment/working for the board/company will be considered and cases where the employee concerned had suffered natural death during this period will not be considered for compassionate appointment.
Having heard the learned counsel for parties and on perusal of the record, it is noticed that undisputedly petitioner's father had died natural death in the year 2006 and the application for compassionate appointment was made in the year 2007 during the ban period.
The record reflects that no action was taken by petitioner after 2007 till 2016 i.e. for a period of about 9 years and without there being proper explanation for such a delay, the present writ petition has been filed.
Even otherwise, the petitioner is not entitled for compassionate appointment in view of clause 1.1(a) & 1.1(b) of amended policy of compassionate appointment.
This court in WP No. 5386/2015 in the matter of Sanjay Shriwas Vs. The Chairman-cum-Managing Director, MP Paschim Kshetra Vidyut Vitaran Company Ltd. & another had considered the same issue in respect of similarly situated candidate whose father had died natural death in 2006 and who had filed application for compassionate appointment in the year 2007 and on the same ground the application was rejected. This court by order dated 13/2/2017 while rejecting the writ petition had held as under:
"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 ~3~ 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 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 ~4~ 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, respondent's 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 ~5~ (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 petitioner's 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."
The aforesaid order of this court was subject matter of ~6~ challenge before the Division Bench in WA No. 270/2017 and Division Bench also by order dated 23/10/2017 has dismissed the appeal and has affirmed the order of Single Bench by holding as under:
8. Learned Writ Court has considered all these arguments advanced by the learned counsel for the appellant and has held that nothing is there to show that the new amended policy is arbitrary or unjust or unreasonable. We have also examined the policy and find that nothing is there to fasten any malafide to the policy or that the policy contains any discriminatory provisions or extend partiality towards any particular employee or class of employees. Learned Writ Court has rightly observed that power to frame or to amend such policy is within the limits of Company/Board and no interference can be made in such powers unless and until malafide intention is attributed to the decision of the employer. The company has introduced the new scheme of compassionate appointment in parity towards all and has restricted the benefit of the scheme to the dependents of the employees whose cases are covered under the categories mentioned in the policy. When in the policy equal and similar treatment is provided for all the employees, then it cannot be said that the policy is unjust or unreasonable. A person can claim compassionate appointment within the purview of the scheme or when he fulfills the criteria settled/determined by the scheme. Learned Writ Court further considered the authorities cited by the appellant i.e. The Energy and Resources Institute case (supra) and Reliance Energy Ltd. case (Supra) and distinguished both the judgments. Circular dated 11.08.2014 is related to scheme of compassionate appointment prevailing in the public sector banks and circular dated 29.09.2014 is a scheme of compassionate appointment issued by the General Administration Department, Government of M.P. for the State Government employees. As it is made clear by the learned writ Court that such scheme of compassionate appointment is prerogative of employer/company, therefore, these circulars have no relevancy with the present case. We do not find any ~7~ incorrectness or illegality in the findings made by the learned Writ Court.
Writ Appeal has no substance, deserves to be and is dismissed hereby."
Since the case of petitioner is identical and in terms of clause 1.1(a) & 1.1(b) of amended policy of compassionate appointment the petitioner is not entitled for compassionate appointment, therefore, the prayer made by petitioner seeking a direction to respondents to consider his case for compassionate appointment cannot be granted.
The writ petition is found to be devoid of any merit which is accordingly dismissed.
C.C. as per rules.
(Prakash Shrivastava) Judge BDJ Digitally signed by Bhuneshwar Datt Bhunesh DN: c=IN, o=High Court of Madhya Pradesh, ou=Administration, postalCode=452001, st=Madhya Pradesh, war Datt 2.5.4.20=3fb5bcda9fd75d95d6c7cdc bd092ee5a74a94a5534aed3a66d938 5cfcfc201e0, cn=Bhuneshwar Datt Date: 2017.11.15 11:00:54 -08'00'