Bhupendra Bairagi vs State of M.P. and Others

Shantanu Kemkar, J.

Petitioner''s father late Shyam Sundar Bairagi was working on the post of Forester in the Forest Department of the State of Madhya Pradesh. He died in harness on 18.05.1996. On his death, petitioner''s mother had applied for compassionate appointment of the petitioner, who was minor aged 10 years. The said application was rejected by the 4th respondent District Forest Officer, Neemuch vide order dated 13.02.1997 (Annexure P/5) directing to the petitioner''s mother that the petitioner may apply after attaining the age of majority. Pursuant to this, on attaining the age of majority the petitioner submitted an application for his compassionate appointment on 06.07.2005 and again on 11.07.2005. The said applications were considered by the respondents and the petitioner was informed vide considered by the respondent and the petitioner was informed vide letter dated 06.12.2005 (Annexure P/7) that he can not be appointed on the post of Assistant Grade III or on the post of Peon but if he is willing to accept compassionate appointment on the post of Forest Guard, he may furnish the required information.

Pursuant to the aforesaid letter dated 06.12.2005, the petitioner gave his consent for his appointment on the post of Forest Guard and submitted requisite information with consent letter dated 23.12.2005 (Annexure P/8). He also submitted requisite affidavit. Thereafter the petitioner''s case was referred to 3rd respondent for further action in the matter. The 3rd respondent along with the recommendation sent the proposal on 02.05.2006 (Annexure P/15) of the petitioner''s appointment referring therein that as on 31.03.2006 total 29 posts of forest guards in the category of OBC are lying vacant and the petitioner being from OBC category he can be given compassionate appointment. However, in stead of passing the order of appointment the petitioner was informed vide letter dated 18.06.2007 (Annexure P/1) that no compassionate appointment can be given to him in view of Circular dated 22.01.2007 providing that if there is no eligible major member in the family of the deceased, the compassionate appointment can be given only if the age of majority is attained within 7 years and if the age of majority is attained by the minor after 7 years there would not be eligibility. Feeling aggrieved by this order dated 18.06.2007 (Annexure P/1) the petitioner has filed this petition.

Shri D.M. Kulkarni, learned counsel for the petitioner contends that the respondents while rejecting the petitioner''s claim for compassionate appointment have acted arbitrarily and committed serious illegality in rejecting the petitioner''s claim on the basis of the policy which came into effect much later from the date of filing of the petitioner''s application. He further contends that the petitioner''s mother when applied for compassionate appointment of the petitioner she was informed by the respondents that the petitioner can submit an application after attaining the age of majority. On attaining the age of majority, the application submitted by the petitioner was duly forwarded and consent was obtained by the respondent for his appointment on the post of Forest Guard and the application was further processed. In this back ground, the rejection order Annexure P/1 on the basis of the subsequent policy is wholly unjustified.

Shri Arvind Gokhale, learned Government Advocate for the respondents contends that the application having been filed after 7 years of the death of the deceased/employee, the same has rightly been rejected in view of the policy dated 22.01.2007.

On the death of the petitioner''s father, the mother of the petitioner (widow of the deceased) immediately applied for the compassionate appointment for her son (petitioner) aged 10 years. She was asked to wait till the petitioner attains the age of majority. On attaining majority the petitioner immediately applied for his compassionate His case was duly considered for appointing him on the post of Forest Guard. After receipt of the petitioner''s consent his case was recommended for compassionate appointment for the post of Forest Guard. At this stage, instead of giving compassionate appointment altogether new stand was taken by the respondent for rejecting his case on the basis of the policy dated 22.01.2007.

In the case of T. Swami Dass vs. Union of India and Ors. (2002 (III) MPLJ 242) Division Bench of this Court has held that the policy prevailing at the time of death and when the application for compassionate appointment has made, has to be applied and not the policy which came into existence subsequently.

Having regard to the law laid down in the case of T. Swami Dass (Supra) and the facts as enumerated above, the impugned order by which the petitioner''s application for compassionate appointment has been rejected by applying the policy which came into existence much later is not sustainable. The petitioner''s case ought to have been considered in view of the policy invogue at the time of death of his father and when the petitioner applied for compassionate appointment.

In the circumstances, impugned order dated 18.06.2007 (Annexure P/1) deserves to be and is hereby quashed. Respondents are directed to reconsider and decide the petitioner''s case for compassionate appointment within three month from the date of receipt of copy of this order, keeping in view the policy prevailing at the time of death of the petitioner''s father and at the time of petitioner''s making application, keeping in mind that the petitioner''s case, was already recommended by the authorities of the Forest Department for compassionate appointment prior to coming into force of the policy dated 22.01.2007.

Thus the petition succeeds and is allowed in terms of the order aforesaid. However, with no order as to costs.

CC within three days.