Ashutosh Sadh vs State Of Madhya Pradesh And Others

Deepak Khot, J

The present petition has been filed under Article 226 of the Constitution of India seeking the following reliefs :-

i) A writ order or direction in the nature of certiorari thereby quashing the order dated 18.10.2021 (Annexure P/13) issued by the District Level Scrutiny Committee.

ii) A writ order or direction in the nature of mandamus thereby directing the respondents to grant compassionate appointment to the petitioner on the post of Assistant Grade III or any other suitable post commensurate to his qualification.

iii) Any other appropriate writ, order or direction which the Hon'ble court may deem just and proper in the nature and circumstances of the case.

It is submitted by learned counsel for the petitioner that the petitioner's father was working on the post of Assistant Teacher and was posted in Government Middle School, Block Kesla, Tehsil Itarsi, District Narmada Puram. The father of the petitioner died in harness on 29.12.2008.

At the time of death of father, the petitioner was minor of 11 years of age. The petitioner became major or 19.9.2015. The petitioner passed higher secondary examination in the year 2016. In April 2016, the petitioner had submitted an application before the respondent No.4 D.E.O. Narmadapuram. However, no acknowledgment could be demanded because of lack of knowledge. The petitioner was informed that as his father was the employee of the Tribal Welfare Department, the application was required to be filed before the respondent No.5. The petitioner immediately on 18.8.2017 submitted an application annexure P/4 before the respondent no.5. Vide annexure P/5 dated 23.12.2017 guidance has been sought by the authorities from the higher authorities. Again on 20.12.2018 he submitted an application for consideration of his application on the sympathetic ground. It was informed to the petitioner that petitioner has not submitted complete documents vide letter dated 28.6.2019, annexure P/7. The petitioner again submitted documents on 16.7.2019, annexure P/8. The petitioner was asked for his choice of appointment vide letter dated 2.9.2019, annexure P/9. The petitioner has submitted the choice of appointment on the post of Shikshak cadre. As the petitioner was not possessing the B.Ed. or D.Ed certificate of professional degrees which was essential for appointment in teaching cadre, the petitioner was informed by the letter dated 1.1.2020 that in case the certificates are not submitted within three days, the application of the petitioner would be rejected. The petitioner requested the authorities to grant compassionate appointment based on the degree of Graduation and grant him 2 years' time to obtain degree of B.Ed vide letter dated 9.1.2020. Thereafter, the petitioner again submitted an application on 29.1.2020, annexure P/12, for appointment on the post of Assistant Grade III. The application of the petitioner has been rejected vide order dated 18.10.2021, annexure P/13, by a Three Member Committee and a letter dated 2.6.2022, annexure P/14, was issued to the petitioner.

It has been submitted by learned senior counsel for the petitioner that though it is settled law that the policy prevalent at the time of death of deceased employee is applicable for the purpose of compassionate appointment, but the case of the petitioner has been considered in the light of policy dated 29.9.2014, which allows the applicant of deceased employee to file an application within one year from the date of his attaining majority. The petitioner has attained majority on 19.9.2015 and first application was submitted in April 2016 to the D.E.O., which was informed to be a wrong forum, therefore, again application was submitted on 18.8.2017, annexure P/4, whereby the option was asked to the petitioner to submit the post, wherein the petitioner had chosen Shikshak cadre. However, in absence of the requisite qualification of B.Ed or D.Ed., he was informed to submit the requisite qualification within three days. Facing with the difficulty, the petitioner again filed an application dated 29.12.2020 for his appointment on the post of AG III, which stood rejected vide order dated 18.10.2021, annexure P/13. It is submitted that as per clause 12.1 of the 2014 policy, maintaining policy dated 18.8.2008, additional proviso in clause 3.2 has been appended in respect of the applicants having minority at the time of death of the employee. In such case, the applicant was given a chance to submit an application within one year from the date of his attaining the majority.

It is submitted that the authorities considering that the application was filed belatedly after 10 months and 14 days, rejected the application. It is submitted that as per the policy dated 18.8.2008, annexure R/2, there was no such opportunity to the applicant to submit an application within one year after attaining the majority. However, as per the policy dated 18.8.2008, only seven years time limit from the death of the employee has been prescribed to submit an application. It is prayed that as the consideration of the petitioner has been done in accordance with the policy of 2014 on the ground of not filing the application within a stipulated time, the minutes of the meeting dated 18.10.2021, annexure P/13, rejecting the application of the petitioner be quashed.

Per Contra, learned counsel for the respondents has submitted that it is trite law that the policy which is prevalent at the time of death of deceased employee is applicable for the purpose of compassionate appointment. As the father of the petitioner died on 29.12.2008, the policy prevalent was dated 18.8.2008, annexure R/1. On the basis prayed that though the rejection is on the ground that the application was submitted with delay of 10 months and 14 days, as per the policy dated 29.9.2014, but as per the correct proposition of law, it was required to be considered under the policy of 2008, which prescribes outer limit of seven years from the date of death of the employee. Thus, prayed for dismissal of the petition.

Heard learned counsel for the parties and perused the record.

According to the 2014 policy, outer limit to consider the application for compassionate appointment is seven years and if the applicant is minor then within one year from the date the applicant attains the age of majority. It is evident from the impugned minutes of the meeting dated 18.10.2021, annexure P/13, held for consideration of appointment on compassionate basis, that the sole consideration which has been done in the case of the petitioner is that the application was filed after 10 months and 14 days of the limit of one year after attaining the age of majority. It is the case of the petitioner that the petitioner had initially submitted his application before a wrong forum, i.e. D.E.O. in April 2016, for which no acknowledgment has been submitted on the ground that application was not accepted. It is submitted that such fact could have been clarified by the Tribal Welfare Department when the application dated 18.8.2017, annexure P/4, was filed. If such fact is verified from the Education Department, then application was within a limit of one year from the date of attaining the age of majority. Thus, consideration which has been done by the authorities were required to be again revisited by the authorities by taking information from the Education Department.

The Hon'ble Apex Court in the case of State of Gujarat vs. Arvindkumar T.Tiwari, (2012) 9 SCC 545, has held that the compassionate appointment is not a vested right. Compassionate appointment is for the urgent financial need and survival of the family after the death of the government employee. It is held as under :

"8. It is a settled legal proposition that compassionate appointment cannot be claimed as a matter of right. It is not simply another method of recruitment. A claim to be appointed on such a ground, has to be considered in accordance with the rules, regulations or administrative instructions governing the subject, taking into consideration the financial condition of the family of the deceased. Such a category of employment itself, is an exception to the constitutional provisions contained in Articles 14 and 16, which provide that there can be no discrimination in public employment. The object of compassionate employment is to enable the family of the deceased to overcome the sudden financial crisis it finds itself facing, and not to confer any status upon it. (Vide: Union of India & Ors. v. Shashank Goswami & Anr., AIR 2012 SC 2294)."

Further, the Hon'ble Apex Court in the case of Secretary to Government, Department of Education (Primary) and others vs. Bheemesh @ Bheemappa (2021) 20 SCC 707 has held :

"18. ... This is fundamentally due to the fact that compassionate appointment was always considered to be an exception to the normal method of recruitment and perhaps looked down upon with lesser compassion for the individual and greater concern for the rule of law.

If compassionate appointment is one of the conditions of service and is made automatic upon the death of an employee in harness without any kind of scrutiny whatsoever, the same would be treated as a vested right in law. But it is not so. Appointment on compassionate grounds is not automatic, but subject to strict scrutiny of various parameters including the financial position of the family, the economic dependence of the family upon the deceased employee and the avocation of the other members of the family. Therefore, no one can claim to have a vested right for appointment on compassionate grounds. This is why some of the decisions which we have tabulated above appear to have interpreted the applicability of revised Schemes differently, leading to conflict of opinion. Though there is a conflict as to whether the Scheme in force on the date of death of the employee would apply or the Scheme in force on the date of consideration of the application of appointment on compassionate grounds would apply, there is certainly no conflict about the underlying concern reflected in the above decisions. Wherever the modified Schemes diluted the existing benefits, this Court applied those benefits, but wherever the modified Scheme granted larger benefits, the old Scheme was made applicable.

10 . Furthermore, the Hon'ble Apex Court in the case of Steel Authority Of India Limited vs Gouri Devi (2022) 17 SCC 531, has held thus :

As held by this Court in Punjab State Power Corpn. Ltd. v. Nirval Singh [Punjab State Power Corpn. Ltd. v. Nirval Singh, (2019) 6 SCC 774 : (2019) 2 SCC (L&S) 210] delay in pursuing claim/approaching court would militate against claim for compassionate appointment as very objective of providing immediate amelioration to family would stand extinguished. Before this Court, there was a delay of 07 years in approaching the Court and this Court observed and held that on the ground of delay itself, the heir/dependant of the deceased employee shall not be entitled to the appointment on compassionate ground.

In State of J&K v. Sajad Ahmed Mir [State of J&K v. Sajad Ahmed Mir, (2006) 5 SCC 766 : 2006 SCC (L&S) 1195] , this Court had occasion to consider the delay and laches in case of appointment on compassionate ground. By dismissing the claim for appointment on compassionate ground, which was made after a period of four-and-a-half years of death of the deceased employee, it was held that appointment on compassionate ground is an exception to general rule that appointment to public office should be made on the basis of competitive merits. It is further observed that once it is proved that in spite of the death of the breadwinner, the family survived and substantial period is over, there is no need to make appointment on compassionate ground at the cost of the interests of several others ignoring the mandate of Article 14 of the Constitution.

In view of the above and for the reasons stated above, applying the law laid down in the aforesaid decisions and considering the fact that in the present case the second application was made after a period of 18 years, the impugned judgment and order [SAIL v. Central Administrative Tribunal, 2021 SCC OnLine Ori 2509] passed by the High Court and that of the Central Administrative Tribunal directing the appellant to re-consider the case of the second son of the respondent is unsustainable and deserves to be quashed and set aside and accordingly the same are hereby quashed and set aside. It is observed and held that the second son of the respondent shall not be entitled to the appointment on compassionate ground as observed and held by the learned Central Administrative Tribunal confirmed by the Division Bench of the High Court by the impugned judgment and order [SAIL v. Central Administrative Tribunal, 2021 SCC OnLine Ori 2509] . Present appeal is allowed accordingly. In the facts and circumstances of the case, there is no order as to costs."

The Hon'ble Apex Court in the case of The State of Madhya Pradesh & Ors. Vs. Ashish Awasthi, decided on 18.11.2021 in Civil Appeal No.6903/2021 has held as under :-

"4. The deceased employee died on 08.10.2015. At the time of death, he was working as a work charge employee, who was paid the salary from the contingency fund. As per the policy/circular prevalent at the time of the death of the deceased employee, i.e., policy/circular No.C-3-12/2013/1-3 dated 29.09.2014 in case of death of the employee working on work charge, his dependents/heirs were not entitled to the appointment on compassionate ground and were entitled to Rs. 2 lakhs as compensatory amount. Subsequently, the policy came to be amended vide circular dated 31.08.2016, under which even in the case of death of the work charge employee, his heirs/dependents will be entitled to the appointment on compassionate ground. Relying upon the subsequent circular/policy dated 31.08.2016, the Division Bench of the High Court has directed the appellants to consider the case of the respondent for appointment on compassionate ground. As per the settled preposition of law laid down by this Court for appointment on compassionate ground, the policy prevalent at the time of death of the deceased employee only is required to be considered and not the subsequent policy.

4.1 In the case of Indian Bank and Ors. Vs. Promila and Anr., (2020) 2 SCC 729, it is observed and held that claim for compassionate appointment must be decided only on the basis of relevant scheme prevalent on date of demise of the employee and subsequent scheme cannot be looked into. Similar view has been taken by this Court in the case of State of Madhya Pradesh and Ors. Vs. Amit Shrivas, (2020) 10 SCC 496. It is required to be noted that in the case of Amit Shrivas (supra) the very scheme applicable in the present case was under consideration and it was held that the scheme prevalent on the date of death of the deceased employee is only to be considered. In that view of the matter, the impugned judgment and order passed by the Division Bench is unsustainable and deserves to be quashed and set aside.

The Hon'ble Apex court in the case of State of M.P. v. Amit Shrivas, (2020) 10 SCC 496, has held as under :-

It is trite to say that there cannot be any inherent right to compassionate appointment but rather, it is a right based on certain criteria, especially to provide succour to a needy family. This has to be in terms of the applicable policy as existing on the date of demise, unless a subsequent policy is made applicable retrospectively. [State of Gujarat v. Arvindkumar T. Tiwari, (2012) 9 SCC 545 : (2012) 2 SCC (L&S) 795] Insofar as providing succour is concerned, unfortunately, since the demise of the late father of the respondent, 11 years have passed and really speaking, the aspect of providing succour to the family immediately does not survive. We have still examined the matter in the conspectus of the applicable policy. It is not in question that the Policy prevailing was one dated 18 -8-2008. Clause 12.1 clearly proscribes work-charge/contingency fund and daily wager employees from compassionate appointment. The gravamen of the submission of the respondent is based on the classification of his late father as a permanent employee on account of having worked for more than 15 years and the consequent regularisation of his service.

Considering the aforesaid analysis of the facts of the case and applying the principles laid down by the Hon'ble Apex Court in the cases referred hereinabove, it is found by this Court that the policy which was in vogue at the time of death of the deceased would be applicable.

When the facts of the case have been tested on the touchstone of the principles laid down by the Hon'ble Apex Court, applying clause 7.1 of the policy of 2008, the application was found to be after seven years of the death of the deceased employee, which is beyond the prescribed limit. Otherwise also, there is no application of the 2014 policy in the matter in hand. However, the matter cannot be remanded to the authorities because as per the 2008 policy, this court has found that the petitioner's application was beyond the prescribed limit. The contention of the petitioner that he has submitted application in the wrong forum cannot be an excuse in the light of the policy and that cannot be the criteria to decide this petition. The criteria is the application of the policy which was prevalent at the time of death of deceased employee.

Thus, considering the totality of the facts, no case is made out warranting interference. The writ petition fails and is hereby dismissed.