Pankaj vs State Of Madhya pradesh And Others

Heard.

This intra-court appeal has been filed against the order dated 6.3.2017 whereby the learned Writ Court affirmed the order dated 10.2.2016 by which

the application of the appellant for compassionate appointment has been rejected by holding the appellant to be ineligible for compassionate

appointment.

The father of the appellant, namely, Ramesh Chandra Singune was working as Gram Sahayak and had died in harness on 14.3.2006. As per Clause

3.2 of the policy of compassionate appointment, the case of the appellant cannot be considered after expiry of 7 years from the date of death of father

of the appellant i.e. after 13.3.2012 or after one year of his attaining majority.

On 5.8.2011, the appellant applied for appointment on compassionate ground on the post of Assistant Grade â€" III on the ground that at that

relevant point of time i.e. on the date of filing of the application, the aforesaid post was available but he could not be appointed on the aforesaid post.

The post of Assistant Grade â€" III, which was vacant during the period when the application was made and when respondent had offered on the post

of Samvida Shala Shikshak Grade â€" III, but the same has been refused by the appellant and he was claiming his appointment only on the post of

Assistant Grade â€" III.

The learned Writ Court considering the fact that as per law laid down by the Full Bench of M.P. High Court in the case of Bank of Maharashtra &

another Versus Manoj Kumar Deharia & another reported in 2010 (4) MPHT 18 (FB) the policy, which was prevailing at the time of

consideration of the application will be applicable. As no post of A.G. III had fallen within seven years from the date of death of father or within one

year from the date of attaining majority of appellant/petitioner, the State had offered compassionate appointment on the post of Samvida Shala

Shikshak Grade III but appellant vide Communication Annexure R/7 had refused to accept the appointment on the post of Samvida Shala Shikshak

Grade III, rejected his claim vide impugned order dated 6.3.2017. To appreciate the facts of the case, we reproduce the relevant part of the order,

which reads as under:-

“The petitioner’s case is that his father Ramesh Chandra Singune was working as Gram Sahayak and had died in harness on 14/3/2006. The

petitioner was minor at that time, therefore, on attaining majority he had filed an application Annex.P-3 for compassionate appointment. The petitioner

is a commerce graduate. His documents were verified but his prayer for compassionate appointment has been rejected by the impugned order.

A reply has been filed by respondents taking the stand that application for compassionate appointment was filed by petitioner on 5/8/2011 and at that

time post of Assistant Grade III in Janpad Panchayat was not available and post of Samvida Shala Shikshak Grade III was available therefore,

petitioner was offered the said post but he had refused the same and since in terms of policy of the compassionate appointment the prayer in this

regard cannot be considered after 7 years of death of bread earner, therefore, by the impugned order the petitioner’s application has been

rejected.

Having heard the learned counsel for parties and on perusal of the record, it is noticed that the petitioner is placing reliance upon policy of

compassionate appointment dated 29th September 2014 whereas the respondents are placing reliance upon the policy dated 18th August 2008. It is

settled position in law that policy prevailing at the time of consideration of application is to be applied. Even otherwise the provisions which are

relevant for the present case in both the policies are substantially the same.

Clause 3.2 of the policy dated 29/9/14 provided as under:-

3.2 lHkh izdkj ds vuqdaik fu;qfDr ds izdj.kksa esa 'kkldh; lsod dh e`R;q fnukad ls 07 (lkr) o""kZ rd in miyC/k gksus ij gh mlds vkfJr dks vuqdaik fu;qfDr

dh ik=rk gksxhA ijUrq e`r 'kkldh; lsod dh ;fn izFke larku e`R;q dh frfFk dks vo;Ld gksos rks dsoy ,slh izFke larku dks o;Ld gksus dh frfFk ls ,d o""kZ rd

vuqdaik fu;qfDr vU;Fkk ik= gksus dh n’kk esa iznku dh tk ldsxhA

Clause 3.2 of the policy dated 18/8/2008 provides as under:

3.2 'kkldh; lsod dh e`R;q fnukad ls 7 (lkr) o""kZ rd in miyC/k gksus ij gh mlds vkfJr dks vuqdaik fu;qfDr dh ik=rk gksxhA

Undisputedly the petitioner was minor at the time of death of his father on 14/3/06. In the application,Annex.P-3, petitioner has disclosed his date of

birth as 20th June 1992 therefore, the petitioner had attained the majority on 20th June, 2010.

The record reflects that petitioner on 5/8/11 after attaining the majority had filed an application for compassionate appointment. Taking the lenient

view in the matter, the respondents vide communication dated 13th February 2013, Annex.R5 had conveyed to the petitioner that post of Assistant

Grade III is not vacant and had offered compassionate appointment to the petitioner on the post of Samvida Shala Shikshak Grade III but petitioner

vide communication Annex.R-7 had refused to accept the appointment on the post of Samvida Shala Shikshak Grade III.

Recently, the Supreme Court in the case of Canara Bank and another Versus M. Mahesh Kumar reported in 2015 (7) SCC 412Â Â has held that

the policy which was prevailing at the time of filing of application will be applicable and in the present case as the post of Assistant Grade â€" III was

available in 2011 and 2012 as is evident from letter dated 13.4.2017 (Annexure A/3) of Project Officer of respondent No.2 and, therefore, the

submission of the Counsel for the appellant is that the learned Writ Court has committed legal error in dismissing the writ petition.

Law with regard to employment on compassionateground for dependent of a deceased employee is well settled. In Canara Bank and another

Versus M. Mahesh Kumar (supra), Apex Court held as thus:-

“12. The same principle was reiterated by this Court in the case of Bhawani Prasad Sonkar vs. Union of India & Ors., (2011) 4 SCC 209, wherein

it was held as under :-

“15. Now, it is well settled that compassionate employment is given solely on humanitarian grounds with the sole object to provide immediate relief

to the employee’s family to tide over the sudden financial crisis and cannot be claimed as a matter of right. Appointment based solely on descent

is inimical to our constitutional scheme, and ordinarily public employment must be strictly on the basis of open invitation of applications and

comparative merit, in consonance with Articles 14 and 16 of the Constitution of India. No other mode of appointment is permissible. Nevertheless, the

concept of compassionate appointment has been recognised as an exception to the general rule, carved out in the interest of justice, in certain

exigencies, by way of a policy of an employer, which partakes the character of the service rules. That being so, it needs little emphasis that the

scheme or the policy, as the case may be, is binding both on the employer and the employee. Being an exception, the scheme has to be strictly

construed and confined only to the purpose it seeks to achieve. ……

In Umesh Kumar Nagpal v. State of Haryana, (1994) 4 SCC 138, while emphasising that a compassionate appointment cannot be claimed as a

matter of course or in posts above Classes III and IV, this Court had observed that: (SCC p. 140, para 2) “2. …The whole object of granting

compassionate employment is thus to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post much

less a post for post held by the deceased. What is further, mere death of an employee in harness does not entitle his family to such source of

livelihood. The Government or the public authority concerned has to examine the financial condition of the family of the deceased, and it is only if it is

satisfied, that but for the provision of employment, the family will not be able to meet the crisis that a job is to be offered to the eligible member of the

family. The posts in Classes III and IV are the lowest posts in non-manual and manual categories and hence they alone can be offered on

compassionate grounds, the object being to relieve the family, of the financial destitution and to help it get over the emergency. The provision of

employment in such lowest posts by making an exception to the rule is justifiable and valid since it is not discriminatory. The favourable treatment

given to such dependant of the deceased employee in such posts has a rational nexus with the object sought to be achieved viz. relief against

destitution. No other posts are expected or required to be given by the public authorities for the purpose. It must be remembered in this connection that

as against the destitute family of the deceased there are millions of other families which are equally, if not more destitute. The exception to the

[pic]rule made in favour of the family of the deceased employee is in consideration of the services rendered by him and the legitimate expectations,

and the change in the status and affairs, of the family engendered by the erstwhile employment which are suddenly upturned.â€​ ……..

Thus, while considering a claim for employment on compassionate ground, the following factors have to be borne in mind:

(i) Compassionate employment cannot be made in theabsence of rules or regulations issued by the Government or a public authority. The request is to

be considered strictly in accordance with the governing scheme, and no discretion as such is left with any authority to make compassionate

appointment dehors the scheme.

(ii) An application for compassionate employment mustbe preferred without undue delay and has to be considered within a reasonable period of time.

(iii) An appointment on compassionate ground is tomeet the sudden crisis occurring in the family on account of the death or medical invalidation of the

breadwinner while in service. Therefore, compassionate employment cannot be granted as a matter of course by way of largesse irrespective of the

financial condition of the deceased/incapacitated employee’s family at the time of his death or incapacity, as the case may be.

(iv) Compassionate employment is permissible only toone of the dependants of the deceased/incapacitated employee viz. parents, spouse, son or

daughter and not to all relatives, and such appointments should be only to the lowest category that is Class III and IV posts.â€​

Applying these principles to the case in hand, as discussedearlier, respondent’s father died on 10.10.1998 while he was serving as a clerk in

the appellant-bank and the respondent applied timely for compassionate appointment as per the scheme ‘Dying in Harness Scheme’ dated

8.05.1993 which was in force at that time. The appellant-bank rejected the respondent’s claim on 30.06.1999 recording that there are no indigent

circumstances for providing employment to the respondent. Again on 7.11.2001, the appellantbank sought for particulars in connection with the issue

of respondent’s employment. In the light of the principles laid down in the above decisions, the cause of action to be considered for compassionate

appointment arose when the Circular No.154/1993 dated 8.05.1993 was in force. Thus, as per the judgment referred in Jaspal Kaur’s case, the

claim cannot be decided as per 2005 Scheme providing for ex-gratia payment. The Circular dated 14.2.2005 being an administrative or executive order

cannot have retrospective effect so as to take away the right accrued to the respondent as per circular of 1993.

It is also pertinent to note that 2005 Scheme providing only forex-gratia payment in lieu of compassionate appointment stands superseded by the

Scheme of 2014 which has revived the scheme providing for compassionate appointment. As on date, now the scheme in force is to provide

compassionate appointment. Under these circumstances, the appellant- bank is not justified in contending that the application for compassionate

appointment of the respondent cannot be considered in view of passage of time.

Insofar as the contention of the appellant-bank that since therespondent’s family is getting family pension and also obtained the terminal

benefits, in our view, is of no consequence in considering the application for compassionate appointment. Clause 3.2 of 1993 Scheme says that in case

the dependant of deceased employee to be offered appointment is a minor, the bank may keep the offer of appointment open till the minor attains the

age of majority. This would indicate that granting of terminal benefits is of no consequence because even if terminal benefit is given, if the applicant is

a minor, the bank would keep the appointment open till the minor attains the majority.

In Balbir Kaur & Anr. vs. Steel Authority of India Ltd. & Ors., (2000) 6 SCC 493, while dealing with the application made by the widow for

employment on compassionate ground applicable to the Steel Authority of India, contention raised was that since she is entitled to get the benefit under

Family Benefit Scheme assuring monthly payment to the family of the deceased employee, the request for compassionate appointment cannot be

acceded to. Rejecting that contention in paragraph (13), this Court held as under:-

“13. ….But in our view this Family Benefit Scheme cannot in any way be equated with the benefit of compassionate appointments. The sudden

jerk in the family by reason of the death of the breadearner can only be absorbed by some lump-sum amount being made available to the family â€

this is rather unfortunate but this is a reality. The feeling of security drops to zero on the death of the breadearner and insecurity thereafter reigns and

it is at that juncture if some lump-sum amount is made available with a compassionate appointment, the grief-stricken family may find some solace to

the mental agony and manage its affairs in the normal course of events. It is not that monetary benefit would be the replacement of the breadearner,

but that would undoubtedly bring some solace to the situation.†Referring to Steel Authority of India Ltd.’s case, High Court has rightly held that

the grant of family pension or payment of terminal benefits cannot be treated as a substitute for providing employment assistance. The High Court also

observed that it is not the case of the bank that the respondents’ family is having any other income to negate their claim for appointment on

compassionate ground.

Considering the scope of the Scheme ‘Dying in Harness Scheme1993’ then in force and the facts and circumstances of the case, the High

Court rightly directed the appellant-bank to reconsider the claim of the respondent for compassionate appointment in accordance with law and as per

the Scheme (1993) then in existence. We do not find any reason warranting interference.

So far as the cases in Civil Appeal No.266/2008 and CivilAppeal No.267/2008 are concerned, they are similar and those respondents are similarly

placed and the appeals preferred by the bank are liable to be dismissed. The appellant-bank is directed to consider the case of the respondents in Civil

Appeal Nos. 266/2008 and 267/2008.

In the result, all the appeals preferred by the appellant-bank aredismissed and the appellant bank is directed to consider the case of the

respondents for compassionate appointment as per the Scheme which was in vogue at the time of death of the concerned employee. In the facts and

circumstances of the case, we make no order as to costs.â€​

On due consideration of the aforesaid so also the law laid down by the Apex Court in the case of Canara Bank and another Versus M. Mahesh

Kumar (supra), we set aside the impugned order dated 6.3.2017 and direct the Competent Authority of respondent No.1 to consider the case of

appellant in the light of policy/scheme which was in vogue at the time of death of the concerned employee so also the documents (Annexure A/3),

because as per the aforesaid document, post of Assistant Grade â€" III was available and decide the application strictly in accordance with law, within

a period of three months from the date of filing of certified copy of the order.

With the aforesaid, we set aside the impugned order dated 3.6.2017 to the extent as indicated hereinabove. Writ appeal is allowed in part. No costs.