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Madhya Pradesh High Court · body

2007 DIGILAW 739 (MP)

HEERALAL BARIA v. M. P. STATE ELECTRICITY BOARD

2007-07-17

J.K.MAHESHWARI

body2007
Judgment ( 1. ) THIS petition is filed challenging the order dated 27-1-2006 annexure P/10 passed by the respondent Board - denying compassionate appointment on the basis of the circular dated 30-1-1997 and 1-9-2000 and for the reasons narrated in the order impugned. ( 2. ) IT is the case of petitioner, that his father Kaniram Baria was in the employment of respondent Board, as Line Attendant Grade II, and died on 13-9-1999 during the course of employment. It is further his case that he is the eldest member of the family having six brothers, sisters and widow, however, being a member of the S. T. category and having passed the 8th class examination, an application to grant of compassionate appointment was submitted by him on 19-9-1999. The said application was not considered by the Board, however, a writ petition bearing No. 2922/2005 (8) filed, which was and disposed of vide order dated 14-9-2005, with a direction, to decide the application. Thereafter respondent Board has rejected the said application vide order Annexure P/10 dated 27-1-2006, relying the subsequent policy dated 1-9-2000; whereby, the grant of compassionate appointments are estopped due to difficult financial position of Board; and because the family of the deceased received Rs. 15,000/-of Ex-gratia, Rs. 77,000/- of GIS, Rs. 1,50,766/- of gratuity and Rs. 57,668/-towards GPV. The Board has also directed to pay annuity Rs. 350/- per month in addition to family pension. Such an action of the Board and the order impugned is under challenge in this petition. ( 3. ) LEARNED counsel, Shri Patne, submits that the application for grant of compassionate appointment ought to have been considered in the light of the circular of the Board dated 30-1-1997 because on the date of submission of the application i. e. 19-9-1999 the said policy was in existence and prevalent, however, denial of compassionate appointment in view of the subsequent policy dated 1-9-2000 is against the settled position of law. To butress his submission, reliance has been placed on the judgment of the Supreme Court in the case of abhishek Kumar vs. State of Haryana and others, reported in 2007 (2) Supreme 519 , wherein it is held in the case of compassionate appointment, consideration ought to be in terms of the rule/instructions prevailing, when the appointment is sought for. ( 4. ( 4. ) SHRI Patne, learned counsel has also relied upon the judgment of this court delivered on 4-8-2003 in W. P. No. 5245/2002, Smt. Anupama @ Sadhna pawar vs. Chairman, M. P. State Electricity Board and others. It is submitted by him that in the above judgment, identical question was involved, and the claim was rejected by the M. P. S. E. B. in reference to the policy dated 1-9-2000, however, following the Division Bench judgment in case of T. Swami Daas vs. Union of India and others, reported in 2002 (3) MPLJ 242 , this Court has quashed the order of rejection, and issued the direction to consider his application, afresh in the light of the policy, which was in existence on the date of application. The said order of learned Single Judge was challenged by M. P. S. E. B. in L. P. A. , which was dismissed by the Division Bench; and held that scheme dated 1-9-2000 was issued subsequent to the death of deceased and the contention of the board, which is based upon later policy cannot be accept. The order of the Single bench and the Division Bench was challenged before the Supreme Court in special Leave Petition, which was also dismissed. Thereafter, Smt. Anupama @ sadhna Pawar was given compassionate appointment on 23-11-2005, and she is working. However, it is urged that petitioner may also be allowed similar benefit without any discrimination, at par to Smt. Anupama @ Sadhna. ( 5. ) LEARNED counsel has further placed the reliance on judgment of the supreme Court in the case of Balbir Kaur and another vs. Steel Authority of india Ltd, and others, reported in 2000 SCC (L and S) 767 and Govind Prakash verma vs. Life Insurance Corporation of India and others, reported in 2005 SCC (L and S) 590 and submitted that on account of receiving service benefits, by the family of the deceased, denial of compassionate appointment is not proper. However, in view of the aforesaid, it is urged that order impugned Annexure p/10 passed by the respondents is liable to be quashed and the respondents may be directed to re-consider his case for compassionate appointment in view of the judgment of Anupama @ Sadhna Pawar (supra) and to direct respondent-Board to grant him similar benefit. ( 6. However, in view of the aforesaid, it is urged that order impugned Annexure p/10 passed by the respondents is liable to be quashed and the respondents may be directed to re-consider his case for compassionate appointment in view of the judgment of Anupama @ Sadhna Pawar (supra) and to direct respondent-Board to grant him similar benefit. ( 6. ) PER contra, Shri P. B. S. Nair, learned counsel appearing for the respondent-Board has filed the reply and stated that because of the Board has issued a policy dated 1-9-2000 Annexure R/1 expressing their inability to grant compassionate appointment due to difficult financial condition; and simultaneously in terms of Circular Annexure R/2 dated 30-1-1989, if widow is getting annuity, then petitioner shall not be entitled for the compassionate appointment. Mr. Nair has placed reliance on a judgment of this Court in W. P. No. 6404/2004, Smt. Pushpalata Soni vs. Chairman, M. P. E. B. and others decided on 30-11-2004. On the basis of the said judgment it is urged that this Court has declined to interfere in the matter of grant of compassionate appointment, if family of the deceased employee has received annuity voluntarily in addition to pension. He submits that in the abovesaid judgment this Court has observed, if the person has accepted to receive the amount of annuity, then it is inapposite to putforth the claim of compassionate appointment. It is observed that under the policy dated 30-1-1989, if the Board has thoughtfully and appropriately used its discretion by extending the benefit of annuity, claim of compassionate appointment, under the said policy is not permissible. However, in view of the judgment of the Single Bench of this Court, it is submitted by him that the controversy involved in the present case is fully covered by the said judgment, however, this petition may be dismissed. ( 7. ) SHRI Nair has further placed reliance on the judgment of the Supreme court in the case of State Bank of India and another vs. Somvir Singh, reported in (2007) 4 SCC 778 , whereby the Apex Court has held that the appointment on compassionate ground is an exception from the general rule, because recruitment to public services has to be made in a transparent and accountable manner, providing opportunity to all eligible persons to compete and participate in the selection process. Such appointments are required to be made on the basis of open invitation of applications and on merit. The dependants of the deceased employees, died in harness, do not have any special or additional claim to public services, other than any one conferred, if any, by the employer by way of instructions. The claim for compassionate appointment and the right, if any, is traceable only by the scheme, executive instructions or rules framed by the employer in the matter offering employment on compassionate grounds. In view of the said observations of the Supreme Court it is submitted by Shri Nair that petitioner do not have any indefeasible right to claim compassionate appointment, after receiving annuity under the scheme dated 30-1-1989. The reliance has also been placed in the case of Union Bank of India and others vs. M. T. Latheesh, reported in (2006) 7 SCC 350 , wherein it is held that issuing a direction by the high Court for grant of compassionate appointment without noticing the scheme, instructions or rules prevailing, is amounting to open a Pandora box to litigants. In view of the aforesaid, prayer is made by Mr. Nair, to dismiss this petition. ( 8. ) I have heard learned counsel appearing for the parties and taken note of the judgments relied upon by learned counsel appearing to either side. Prior to dealing with the question of law it is necessary to see the ground of rejection, or reason mentioned in order impugned Annexure P/10. The reading of the said order indicates that; the Board has considered the policy dated 30-1-1997 and 1-9-2000. It has taken note that in facts and circumstances and in view of existing policy, grant of compassionate appointment is refused with the observation that his case may be looked into as and when the Board will restart the compassionate appointment. Thus it is clear that the application of petitioner has been rejected in view of policy prevailing on the date of decision. It is further apparent that the order impugned of denial of appointment, is not based upon the policy for payment of annuity dated 30-1- 1989. If the decision banks upon the said policy; then it was not required to observe by Board, that his case may be re-considered as and when the Board shall restart the compassionate appointment. It is further apparent that the order impugned of denial of appointment, is not based upon the policy for payment of annuity dated 30-1- 1989. If the decision banks upon the said policy; then it was not required to observe by Board, that his case may be re-considered as and when the Board shall restart the compassionate appointment. Thus defence putforth, in the return filed by respondents Board is just opposite or dubious to the reasons assigned in the impugned order Annexure P/10. The tenability of the order is required to be seen by the reasons assigned in the order. The guidance may be taken by the judgment of the Apex Court in the case of Mahinder Singh gill vs. The Chief Election Commissioner, reported in AIR 1978 SC 851 , whereby it is made clear that when a statutory functionary, makes an order based on certain grounds, its validity must be judged by the reasons so mentioned in order and it cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. ( 9. ) I have also perused both the policy dated 30-1-1989 and 30-1-1997 and on going through the same, it is clear that policy dated 30-1-1997 has been issued in supersession to all the earlier policies of Board issued for grant compassionate appointment. The policy dated 30-1-1997 makes it clear that grant of compassionate appointment to the family member of the deceased shall be considered and decided according to the terms and conditions specified therein. The reading of condition No. 5 indicates that payment of annuity is sine qua non to the member of the said family on found if they are ineligible, or not applied, or denied of compassionate appointment. The last para of the said policy further indicates that immediate after death of the employee till grant of compassionate appointment, the amount of annuity shall be continuously paid. Thus it is clear while rejecting the claim of compassionate appointment by the order impugned annexure P/10 the Board has not referred the earlier policy of annuity dated 30-1-1989. In view of the above discussion, payment of annuity to the family of the deceased is not the impediment or debar them to get compassionate appointment. Even if annuity is received by them voluntarily their claim for grant of compassionate appointment may be considered in the light of the policy dated 30-1-1997. ( 10. In view of the above discussion, payment of annuity to the family of the deceased is not the impediment or debar them to get compassionate appointment. Even if annuity is received by them voluntarily their claim for grant of compassionate appointment may be considered in the light of the policy dated 30-1-1997. ( 10. ) THE judgment of this Court relied by Mr. Nair in the case of Puspalata (supra) is based upon the old policy of the payment of annuity dated 30-1-1989; undisputedly, it has now been superseded, by the subsequent policy dated 30-1-1997. The perusal of the facts of the said judgment, makes it clear to me, that the subsequent policy dated 30-1-1997 has not been brought to the notice of this court, however, the said judgment, is based upon the superseded policy of the board, and distinguishable on facts, and do not cover up the controversy involved in this case. ( 11. ) IT is seen from the record that the order of rejection to grant the compassionate appointment is based upon the circular dated 1-9-2000 Annexure r/1, though deceased died on 13-9-1999 and the application was submitted on 19-9-1999. As per the material available before me, it is apparent that the policy dated 30-1-1997 was in existence at the time of death on the date of submitting the application for compassionate appointment, therefore, his case ought to have considered in the light of the policy dated 30-1-1997 and his application cannot be rejected on the basis of subsequent policy dated 1-9-2000. In fact that a said policy was not in existence on the date of submission of application. However, in view of the ratio of the judgment of the Apex Court in the case of Abhishek kumar (supra) impugned order of rejection of the application of compassionate appointment, on the basis of subsequent policy is not proper. The view taken by the Apex Court is followed by this Court in the case of Smt. Anupama @ Sadhna (supra), wherein the M. P. S. E. B. was the contesting respondent. It is relevant that the judgment of Smt. Anupama @ Sadhana is upheld upto the Apex Court and ultimately Smt. Anupama @ Sadhna was appointed on compassionate ground on 23-11-2005 even after the judgment of Smt. Pushpalata Soni (supra), relied upon by Shri P. B. S. Nair. It is relevant that the judgment of Smt. Anupama @ Sadhana is upheld upto the Apex Court and ultimately Smt. Anupama @ Sadhna was appointed on compassionate ground on 23-11-2005 even after the judgment of Smt. Pushpalata Soni (supra), relied upon by Shri P. B. S. Nair. However, on finding support from the Division Bench judgment of this Court which is upheld upto the Supreme Court, I am of the considered view that the rejection of claim of petitioner, to grant him compassionate appointment relying on subsequent policy dated 1-9-2000 is contrary to the settled position of law. ( 12. ) IN view of the arguments as putforth before this Court, it is also required to be dealt with whether grant of service benefits to the widow of the deceased employee may deprive, the member of the deceaseds family to claim compassionate appointment. On going through the judgment of the Apex Court in the case of Govind Prakash Verma (supra) and Balbir Kaur (supra), it is apparent that merely receiving the service benefits by the family members of the deceased employee, shall not be a ground for refusal of compassionate appointment. In that view of the matter, it is apparent that the rejection of the claim of the petitioner by the order impugned Annexure P/10 is contrary to the settled position of law. ( 13. ) IN view of the discussion made hereinabove, the judgment of State bank of India and another (supra) is having no application because in the said judgment Apex Court has observed that compassionate appointment cannot be claimed as a matter of right, no iota of doubt can come in the mind to accept such preposition of law. But in the said judgment and exception has been carved out, that consideration may be made, if any, under the scheme, executive instructions or under the rules framed by the employer. In the present case because, the employer has framed policy dated 30-1-1997 in supersession of all other policies, however, right of consideration for grant of compassionate appointment under the said policy accrues to the members of the family of deceased. In the present case because, the employer has framed policy dated 30-1-1997 in supersession of all other policies, however, right of consideration for grant of compassionate appointment under the said policy accrues to the members of the family of deceased. In the facts of this case it is apparent that consideration has not been properly made by the board in the light of the policy dated 30-1-1997; and his claim is rejected on the basis of the policy dated 1-9-2000, which was into existence on the date of application; in fact such policy was issued after about one year of submitting the application. Therefore, the argument as putforth by Mr. Nair cannot be accepted and the judgments relied upon having no application in the facts of this case. Similarly, the other judgment of Union Bank of India and others (supra) is also having no application to the facts and circumstances of the present case. Because in instant case claim of petitioner, for compassionate appointment has been rejected in view of the subsequent policy. ( 14. ) IN view of the foregoing discussion, I am of the considered view that rejection of the application for compassionate appointment vide Annexure P/10 dated 27-1-2006 is contrary to the policy dated 30-1-1997 and it is based upon a subsequent policy dated 1-9-2000, hence liable to be quashed. Accordingly this petition is allowed and the respondent Board is directed to re-consider the said application of compassionate appointment in view of the policy dated 30-1-1997 which was prevalent at the time of death and on the date of submission of application. The respondent-Board is directed to look into the case of Smt. Anupama @ Sadhna, and to grant at par benefits to petitioner. The aforesaid exercise be completed by the respondent Board within a period of three months from the date of communication of this order. Accordingly this petition is allowed and in the facts and circumstances of the case there is no order as to costs. Petition allowed.