Kumari Anupama Khare vs State Of Madhya Pradesh And Others

Heard finally with the consent of learned counsel for the parties.

This petition is filed by the petitioner aggrieved by the Order (Annexure P/6) dated 02.05.2018 passed by the District Education Officer, Bhopal whereby the application of the petitioner for grant of compassionate appointment was rejected.

According to the petitioner, her mother was working as Assistant Teacher in the Govt. Girls Middle School, Chandbad, District-Bhopal who died in harness on 12.07.1999. At the time of her death, the petitioner was merely three years' old, hence, she has filed the application for compassionate appointment after she became major.

Learned Govt. Advocate appearing for the respondents/State inviting the attention of this Court to sub-clause 4.1 of Clause 4 of the circular dated 29th September, 2014 of General Administration Department, Govt. of M.P., Bhopal has submitted that at the time of death of petitioner's mother, her father was in Government service, hence, petitioner is not entitled to compassionate appointment, and prays for dismissal of the petition.

It is reflected from the impugned order (Annexure P/6) as also admitted by the petitioner that petitioner's father Shri Kunj Bihari Khare was a Government employee and retired on 31.08.2000.

The contention of learned counsel for the petitioner is that the father of petitioner had retired on 31.08.2000 prior to the application for compassionate appointment was filed and, therefore, clause 4 will not be applicable. Relying on the Full Bench decision in Bank of Maharashtra and another vs.  Manoj Kumar Deharia and another 2010 (3) MPLJ 213, it is argued that petitioner would be governed by the policy in vogue at the time of consideration when the application was made, is misplaced.

It has been held by the Full Bench in Bank of Maharashtra and another (supra) thus :-

"31. It is, therefore, clear that compassionate appointment is not a vested right nor is it a hereditary right. Its grant is based on the policies and scheme which are framed by carving out an exception to the general rule governing public appointment. Once it is held that it is an exception to the General Rule and is granted in accordance with the scheme or rules formulated, then considerations to be made for grant of the appointment would be governed by the provision of the rules or the scheme and in that view of the matter when the rules and the guidelines play a dominant role, considerations have to be made in accordance with the rules and scheme which are applicable at the time of grant. As the entitlement, for compassionate appointment is to be evaluated in accordance with the schemes and rules formulated in that regard, there cannot be any shadow of doubt that consideration and evaluation are required to be made in accordance to the existing policies and not on the basis of a policy or scheme, which has become extinct. In that view of the matter, consideration has to be in accordance to the policy applicable when the matter is taken up for consideration and not on the basis of any other scheme or policy, which has lapsed or superseded. The aforesaid being the position of law, the view expressed in T.Swamy Dass vs. Union of India and others (2002) 3 MPLJ 242 and Heeralal Baria vs. M.P.State Electricity Board and another 2008 (1) MPLJ 492 is not correct.

In view of foregoing discussion, we proceed to record our conclusions as follows :-

(a) The grant of compassionate appointment is not a vested legal right. It is only a benefit granted in certain circumstances de-hors the normal rule of appointment and when the employer has a right to evolve an appropriate policy after considering various factors for granting such a benefit, the considerations have to be made in accordance with the policy that is prevailing at that point of time.

(b) When it is held that compassionate appointment is not a vested right and when grant of such appointment is governed by the Rules and Policies prevailing in an establishment, then consideration as per the Rules existing is required to be made and consideration on the basis of a Policy, which is given up by the employer and which has no application at that point of time cannot be insisted upon.

(c) Having regard to the exceptional nature of this appointment and taking note of the fact that it is granted under a special Scheme carved out de-hors the normal mode of recruitment, the same has to be governed as per the Policies or Provisions governing such appointment prevalent at a particular point of time when consideration is to be made, and not on the basis of a Policy which was in vogue and has been given up by the employer due to changed circumstances.

(d) As compassionate appointment is granted by carving out a special Scheme contrary to the normal mode of recruitment and when the employer or the government is at liberty to evolve a Scheme for granting such appointment from time to time, then the consideration for appointment has to be made in accordance with the Scheme or Policy that is in existence.

(e) The decisions rendered in T. Swamy Dass (supra) and Heeralal Baria (supra) do not lay down the correct law and are hereby overruled.

(f) Any right flowing from a settlement between the employer and employees' union or association has to be in a different compartment.

(g) It would be the obligation of the employer to deal with the application with immediacy and promptitude so that the grievance of a family in distress gets a fair treatment in accordance with law. "

It has been held by the Full Bench that compassionate appointment is not a right. It is a benefit granted de hors the normal mode of recruitment and must be granted strictly in accordance with the scheme or policy formulated in this regard.

Sub-clause 4.1 of Clause 4 of the policy dated 29.09.2014 filed as Annexure P/6 and relied upon by the petitioner, provides that compassionate appointment shall not be granted in case a member of the family of the deceased employee is already in Government service. It reads as under :-

"4. अनुंकपा नि;ुक्ति के लि, अपा=ता निम्नलि(ात स्थिति में अनुकंपा नि;ुक्ति की पा=ता नहीं होÛी दिवंÛत 'ासकी; सेवक के परिवार का कोई भी सदस्; ;दि पूर्व से 'ासकी; सेवा अथवा निÛम) म.डल) परि"ाद) आ;ोÛ आदि में नि;मित सेवा में नि;ोजित हो (आवेदक के परिवार का कोई सदस्; नि;मित सेवा में नि;ोजित न होने का 'ापथ प$= प्रस्तुत करना होÛा )।

As admittedly the father of petitioner was in Government service at the time of death of her mother, sub-clause 4.1 of Clause 4 of the aforestated policy clearly dis-entitles the petitioner for grant of compassionate appointment.

In view of aforesaid, I do not find any merit in the present petition. Same is dismissed, accordingly.