Madhya Pradesh High Court
Nihal Upadhyay vs The State Of Madhya Pradesh on 28 August, 2024
Author: Vishal Mishra
Bench: Vishal Mishra
NEUTRAL CITATION NO. 2024:MPHC-GWL:14659
1 WP-6326-2017
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 28th OF AUGUST, 2024
WRIT PETITION No. 6326 of 2017
NIHAL UPADHYAY
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Anil Sharma - Advocate for petitioner.
Shri Sohit Mishra - Government Advocate for respondents/State.
ORDER
Assailing the order dated 22.06.2017 (Annexure P/1) and 15.11.2016 (Annexure P/2) passed by the respondents/authority by which the claim of the petitioner for compassionate appointment has been rejected, the present petition has been filed.
2. It is the case of the petitioner that his father was working as Mechanic Class-III in the regular work-charged and contingency establishment and died on 09.01.2016 while in service. The petitioner has submitted an application for grant of compassionate appointment on 27.10.2016 along with relevant documents. The respondent/authority vide impugned order dated 15.11.2016 has rejected the claim of the petitioner for compassionate appointment on the ground that circular dated 31.08.2016 is not applicable to the case of the petitioner. Against which, the petitioner preferred a writ petition being W.P.No.8947 of 2016 and this Court has Signature Not Verified Signed by: SUSHEEL KUMAR JHARIYA Signing time: 8/31/2024 7:59:21 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:14659 2 WP-6326-2017 disposed off the writ petition directing to consider the claim of the petitioner in terms of the policy dated 31.08.2016. Thereafter, the respondent/authority vide impugned order dated 22.06.2017 (Annexure P/1) again rejected the claim of the petitioner and deposited Rs.2.00 Lakhs in the account of petitioner's mother in lieu of reinstatement. Hence, the present petition.
3. Per contra, learned counsel appearing for the State has vehemently opposed the contentions and supported the impugned order. It is pointed out that death has taken place on 09.01.2016. The policy on which reliance is placed is dated 31.08.2016 which covers the cases of Worked Charged and Contingency Paid employees for consideration for grant of compassionate appointment. The said policy is not applicable to the case of the petitioner owing to the fact that the said policy comes into existence on 31.08.2016 and there is a clear wording that the same will be applicable to the cases in which death has taken place on or after 31.08.2016. It is submitted that settled proposition of law is that policy prevailing at the time of death of an employee has to be taken into consideration. It is settled legal proposition of law by the Hon'ble Supreme Court in the recent judgments in the cases of The Secretary to Govt. Department of Education (Primary) and others v. Bheemesh alias Bheemappa, 2021 SCC OnLine SC 1264; Indian Bank and others v. Promila and another (2020) 2 SCC 729 and State of Madhya Pradesh v. Amit Shrivas (2020) 10 SCC 496 that the policy prevailing on the date of death of an employee is to be taken into consideration while granting compassionate appointment. Even otherwise, the death has taken place on 09.01.2016 and almost 8 years have passed away. The sole consideration for Signature Not Verified Signed by: SUSHEEL KUMAR JHARIYA Signing time: 8/31/2024 7:59:21 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:14659 3 WP-6326-2017 grant of compassionate appointment is to overcome the sudden hardship being faced by the dependent of the sole earner of the family owing to sudden demise. The factum of penury and dependency and the urgent requirement of a job, are the factors to be considered in the cases of compassionate appointment. In the present case, the petitioner and other family members have survived for a considerable period of more than 8 years. The very object of grant of compassionate appointment will be defeated and frustrated in the present facts and circumstances of the case. He has prayed for dismissal of the writ petition.
4. Heard learned counsel for the parties and perused the record.
5. The law with respect to compassionate appointment is considered and decided in several judgments and held that the compassionate appointment cannot be an alternate mode of recruitment, rather it is in a form of compassion shown by the authorities while considering the cases. The Hon'ble Supreme Court in several cases has held there are two recognized contingencies for grant of compassionate appointment; (i) to meet the sudden crisis occurring on account of death of the bread winner of the family and; (ii) to meet the crisis in a family on account of medical invalidation of the bread winner of the family. The factum of dependency and penury are required to be considered by the authorities.
6. The Hon'ble Supreme Court in the case of Santosh Kumar Dubey vs. State of U.P., reported in (2009) 6 SCC 481 has held as under:
"12. The request for appointment on compassionate grounds should be reasonable and proximate to the time of the death of the bread earner of the family, inasmuch as the very purpose of giving such benefit is to make financial help available to the family to overcome sudden economic crisis Signature Not Verified Signed by: SUSHEEL KUMAR JHARIYA Signing time: 8/31/2024 7:59:21 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:14659 4 WP-6326-2017 occurring in the family of the deceased who has died in harness. But this, however, cannot be another source of recruitment. This also cannot be treated as a bonanza and also as a right to get an appointment in government service."
7. The Hon'ble Supreme Court in the case of Sanjay Kumar vs. State of Bihar and others, reported in (2000) 7 SCC 192 has held as under:
"3... This Court has held in a number of cases that compassionate appointment is intended to enable the family of the deceased employee to tide over sudden crisis resulting due to death of the bread earner who had left the family in penury and without any means of livelihood. In fact such a view has been expressed in the very decision cited by the petitioner in Director of Education Vs. Pushpendra Kumar. It is also significant to notice that on the date when the first application was made by the petitioner on 02/06/1988, the petitioner was a minor and was not eligible for appointment. This is conceded by the petitioner. There cannot be reservation of a vacancy till such time as a petitioner becomes a major after a number of years, unless there are some specific provisions. The very basis of compassionate appointment is to see that the family gets immediate relief."
8. A similar view was taken by the Division Bench of this Court in the case of Beni Lal Bamney vs. Union of India and others , reported in 2003 (1) MPLJ 342 and in the case of Riazuddin Khan vs. State of M.P. and others, reported in 2005(4) MPLJ 575 and in the case of Managing Director, Madhya Pradesh Paschim Kshetra Vidyut Vitaran Co. and others vs. Ashiq Shah and another (W.A.No.10 of 2020).
9. It is also settled legal proposition of law that the policy prevailing at the time of death of an employee is to be taken into consideration as has been held by the Hon'ble Supreme Court in the cases of Indian Bank and others v. Promila and another (2020) 2 SCC 729; State of Madhya Pradesh v. Amit Shrivas (2020) 10 SCC 496; State of Madhya Pradesh v. Ashish Awasthi (Civil Appeal No. 6903/2021, decided on 18.11.2021); The Chief General Manager, Telecommunication, BSNL v. Vidya Prasad (Civil Appeal No. 6019/2021, decided on 28.09.2021); and recently in the case of The Secretary to Govt. Department of Education (Primary) and others v.
Signature Not Verified Signed by: SUSHEEL KUMAR JHARIYA Signing time: 8/31/2024 7:59:21 PMNEUTRAL CITATION NO. 2024:MPHC-GWL:14659 5 WP-6326-2017 Bheemesh alias Bheemappa, 2021 SCC OnLine SC 1264 to the effect that scheme and/or the rules prevalent at the time of death of the employee, who died in harness, and/or at the time of submitting the application is required to be considered and not the amended rules prevalent at the time of consideration of the application.
10. In the present case, admittedly, the death took place on 09.01.2016 and there is no provision for grant of compassionate appointment to the dependent of deceased employee worked in the work charged and contingency paid establishment. The respondents/authorities have considered the case of the petitioner and rejected his claim on the ground that at the time of death of the employee, there was no provision for grant of compassionate appointment to the dependent of the deceased employee worked under the Work Charged Contingency Establishment. The policy dated 31.08.2016 will be applicable to the cases in which death has taken place on or after 31.08.2016 and prior to that there is no provision for grant of compassionate appointment to the dependent of the employee working under the Work Charged Contingency Establishment. Even otherwise, the petitioner and other family members have survived for considerable period of almost 8 years from the date of death of sole bread-earner. The basic object of grant of compassionate appointment is to overcome the sudden hardship and financial crisis arisen to the family members of the deceased Government servant on account of sudden death of bread earner of the family, but a direction for considering of the application for grant of compassionate appointment after lapse of 8 years is against the very object of the compassionate appointment.
Signature Not Verified Signed by: SUSHEEL KUMAR JHARIYA Signing time: 8/31/2024 7:59:21 PMNEUTRAL CITATION NO. 2024:MPHC-GWL:14659 6 WP-6326-2017 On both counts the case of the petitioner does not fall under the category of compassionate appointment. Under these circumstances, no relief can be extended to the petitioner.
11. The petition sans merits and is hereby dismissed. No order as to costs.
(VISHAL MISHRA) JUDGE sj Signature Not Verified Signed by: SUSHEEL KUMAR JHARIYA Signing time: 8/31/2024 7:59:21 PM