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Judgment
In this petition filed under Article 226 of the Constitution, the petitioner has prayed for a direction to grant him regular appointment from the date of initial appointment.
Briefly stated, the facts are that the petitioner''s father died in harness. The petitioner''s father Late Shri Ajaz Mohammed was working in the Food Department at Satna. After the death of his father, the petitioner preferred an application for considering him for grant of compassionate appointment. The respondents by order dated 25-11-2006/02-12-2006 (Annexure P/1) appointed him on compassionate basis on the post of Samvida Shala Shikshak Grade-3. Since this appointment was made on contract basis and the petitioner was not appointed against a substantive post, the petitioner made a request to the Collector to appoint him on a regular post of Food Inspector. The Collector treated the said request as a resignation of the petitioner from the post of Samvida Shala Shikshak Grade-3 and accepted the so-called resignation. The petitioner assailed this order by filing WP. No.5185/13, which was decided by this Court on 27-03-2014 (Annexure P/2). This Court in its order reproduced the prayer of the petitioner made in his application, which was treated by Collector as petitioner''s resignation. This Court set aside the impugned order therein dated 21-05-2009 and directed the respondents to reinstate the petitioner on the post of Samvida Shala Shikshak Grade-3. The said reinstatement was ordered without granting backwages to the petitioner. In turn, the respondents passed the order dated 05-08-2014 and appointed the petitioner on the post of Samvida Shala Shikshak Grade-3.
Shri Umesh Shrivastava, learned counsel for the petitioner advanced two fold contentions. Firstly, it is submitted that under the scheme of compassionate appointment, the petitioner should have been given appointment against a regular post and not on a temporary post on contractual basis. Secondly and alternatively, once the reinstatement is ordered by this Court, the petitioner was entitled to be restored to a position which he was occupying at the time of his disengagement. The respondents in place of "reinstatement" ordered "appointment" which is bad in law.
Per contra, Shri Pradeep Sahu, learned Panel Lawyer supported the action of the respondents. It is submitted that the order dated 05-08-2014 (Annexure P/3) is in consonance with the directions issued by this Court in WP. No.5185/13. It is submitted that the compassionate appointment cannot be claimed as a matter of right. The petition being devoid of substance, may be dismissed.
No other point is pressed by the parties.
I have heard the parties at length and perused the record.
It is not in dispute between the parties that the petitioner''s father was a regular employee of the department. The petitioner submitted his application for appointment against a regular post. The policy of compassionate appointment nowhere provides that such appointment can be made on daily rated/contractual basis. This point was considered by Gwalior Bench of this Court in WP. No.1734/06 ( Narayanibai vs. State of M.P. & Others ). This Court held as under:-
"6. The policy for compassionate appointment filed by the petitioner and respondents nowhere prescribes that the appointment can be made on daily rated basis. The scheme of appointment provides that the appointment can be made on regular/substantive post. Since the petitioner was given appointment vide Annexure P-2, her entitlement for appointment cannot be disputed. I am unable to persuade myself with the contention of Shri Newaskar, learned Deputy Govt. Advocate that the petitioner is ''estopped'' after joining pursuant to Annexure P-2. In the opinion of this Court, the position of the petitioner was like '' a beggar cannot be a chooser''. Her husband suddenly died because of a road accident. She had to pull the cart of her family in the present days of price hike. Thus, she had no option but to accept the appointment on daily rated basis by communication dated 21.7.1998. It cannot be forgotten that she immediately preferred representations against such appointment and prayed for her posting on regular basis. Thus, the principle of ''estopple'' has no role to play in the facts and circumstances of the present case. It is apt to quote the judgment of Supreme Court in Peoples'' Union for Democratic Rights Vs. Union of India, (1982) 3 SCC 235 in this regard, which reads as under:- "Moreover, in a country like India where there is so much poverty and unemployment and there is no equality of bargaining power, a contract of service may appear on its fact voluntary but it may, in reality, be involuntary, because while entering into the contract, the employee, by reason of his economically helpless condition, may have been faced with Hobson''s choice, either to starve or to submit to the exploitative terms dictated by the powerful employer. It would be a travesty of justice to hold the employee in such a case to the terms of the contract and to compel him to serve the employer even though he may not wish to do so." 7. On the basis of aforesaid analysis, it is clear that the action of the respondents in appointing the petitioner on daily rated basis runs contrary to the policy of compassionate appointment. Respondent''s action in not appointing the petitioner is contrary to scheme and object of policy. Hence, principle of estoppal has no role to play. The policy does not envisage any such appointment on daily rated basis. If the posts were not lying vacant, the appointment could have been made against regular post available elsewhere. In the opinion of this Court, the action of respondents in appointing the petitioner on daily rated basis is bad in law and defeats the purpose of compassionate appointment. 8. Resultantly, the petition deserves to be and is accordingly allowed. The respondents are directed to consider and appoint the petitioner on a regular Class-IV post from the date of her initial engagement as a daily rated employee and pay her all consequential benefits. The aforesaid exercise be completed within two months from the date of communication of this order. [Emphasis Supplied]
In the light of aforesaid judgment of Gwalior Bench, it is clear like noonday that the action of respondents in appointing the petitioner on contractual basis is bad in law. Merely because the petitioner has accepted the appointment and joined against a contractual post, this will not operate as "estopple" against him. The petitioner promptly preferred representation seeking conversion of his appointment to a regular post which request was erroneously treated as resignation by the Collector. Since the policy of compassionate appointment provides the right of consideration against a regular post and not against any contractual post, the action of the respondents in appointing the petitioner against a contractual post cannot be upheld.
Even otherwise, the action of the respondents in directing the appointment of petitioner by order dated 05-08-2014 is bad in law. This Court issued directions for "reinstatement". The word ''reinstatement'' has a definite meaning in service jurisprudence. In the case of (2013) 10 SCC 324 ( Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya & Others ) the Apex Court held as under:-
"21. The word "reinstatement" has not been defined in the Act and the Rules. As per Shorter Oxford English Dictionary, Vol. 2, 3rd Edn., the word "reinstate" means to reinstall or re-establish (a person or thing in a place, station, condition, etc.); to restore to its proper or original state; to reinstate afresh and the word "reinstatement" means the action of reinstating; re-establishment. As per Law Lexicon, 2nd Edn., the word "reinstate" means to reinstall; to re-establish; to place again in a former state, condition or office; to restore to a state or position from which the object or person had been removed and the word "reinstatement" means establishing in former condition, position or authority (as) reinstatement of a deposed prince. As per Merriam-Webster Dictionary, the word "reinstate" means to place again (as in possession or in a former position), to restore to a previous effective state. As per Black''s Law Dictionary, 6th Edn., "reinstatement" means:
"To reinstall, to re-establish, to place again in a former state, condition, or office; to restore to a state or position from which the object or person had been removed."
Thus, in alternatively, even if the petitioner was not entitled for the relief arising out of first contention, he was certainly entitled to be reinstated from the date he was disengaged. He could have been deprived only from the benefit of backwages. The benefit of continuity of service on notional basis and seniority based thereupon must flow in favour of the petitioner.
For the aforesaid cumulative reasons, the petition deserves to be allowed. There is no justification in providing compassionate appointment to the petitioner on a contractual post when policy provides otherwise. Resultantly, the respondents are directed to consider the case of the petitioner for appointment against a regular post from due date. Appropriate order shall be passed by the respondents in this regard within 60 days from the date of communication of this order.
The petition is allowed to the extent indicated above. No cost.