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2009 DIGILAW 1113 (MP)

Sunil S/o Late Mohanlal Malviya v. State of M. P.

2009-09-10

SHANTANU KEMKAR

body2009
JUDGMENT Petitioner's father late Shri Mohanlal Malviya was working on the post of Forest Guard in the Forest Department of the State Government. He died in harness on 7-10-1986. 2. At the time of tleath of his father the petitioner was minor. On attaining the age of majority he submitted an application on 25-11-2000 (Annexure P-3) seeking compassionate appointment in place of his father. The said application was rejected by the Secretary of Department of Forest vide order dt. 15-12-2005 (Annexure P/12) on the ground that the compassionate appointment cannot be granted after more than seven years of the death of the government servant. Feeling aggrieved the petitioner filed a W.P.(s) No. 2496/06 before this Court. The said writ petition was disposed of by a learned Single Judge of this Court vide order dated 30-4-2007 directing the Competent Authority of the respondents to reconsider the petitioner's case for grant of compassionate appointment in accordance with the policy which was in existence on the date of submission of application for compassionate appointment by the petitioner. 3. In pursuance to the said order dt. 30-4-2007 passed by this Court in W.P.(s) No. 2494/06 the petitioner's case was reconsidered and it has been rejected vide order dt. 18-7-2008 (Annexure P/16). Feeling aggrieved the petitioner has filed this petition. 4. Smt. Vinita Phaye learned counsel for the petitioner argued that the rejection of the petitioner's application for compassionate appointment by applying the policy which came into existence subsequent to the death of the petitioner's father is contrary to the law laid down by this Court in the case of T. Swami Das vs. Union of India and others, 2002(3) MPLJ 242 , followed in the case of Rakesh s/o Rajendraji Jaju (Gupta) vs. State of M. P. and others, 2009(2) MPLJ 261 . She also placed reliance on the judgment of the Supreme Court in the case of Abhishek Kumar vs. State of Haryana, 2006(12) SCC 44 . 5. Smt. Rashmi Pandit learned Dy. GA on the other hand argued that the petitioner's case has been reconsidered in the light of the observations made by this Court in his earlier W.P.(s) No. 2496/06 dt. 30-4-2007. She argued that in terms of the said order dt. 30-4-2007 the petitioner's case has been considered by applying the policy which was in existence on the date of submission of application by him. 30-4-2007. She argued that in terms of the said order dt. 30-4-2007 the petitioner's case has been considered by applying the policy which was in existence on the date of submission of application by him. She supported the impugned order dated 18-7-2008 by contending that compassionate appointment cannot be claimed as of right more particularly after such a long lapse of time. 6. The petitioner's earlier writ petition has been disposed of by this Court vide order dt. 30-4-2007. Following was the order passed in the said writ petition. "After hearing the learned counsel for the parties for some time it is agreed upon by the parties that the petitioner may be directed to submit a fresh representation within a month and the respondents may be directed to consider such application keeping in view the policies, which were in existence when the petitioner has submitted the application for compassionate appointment on attaining the age of majority and also to consider the peculiar facts of this case that at the time of death of the deceased employee, petitioner was minor and on attaining the age of majority, he has moved an application for compassionate appointment. Such application is not required to be dismissed on account of completion of 7 years from the date of death of the deceased employee as ordered by (Annexure P/12) dated 15-12-2005. In view of the foregoing submission, the order dated 15-12-2005 (Annexure P/12) is quashed. Accordingly, petitioner is directed to submit a fresh representation with a month to the competent authority and the competent authority to reconsider such representation of the petitioner for grant of compassionate appointment independently and in accordance with the existing policies, which were existence on the date of submission of application on attaining the age of majority. The aforesaid direction be completed within a period of 4 months from the date of communication of this order. Accordingly, this petition is disposed. " (emphasis supplied by this Court) 7. In view of the aforesaid order of this Court which has attained finality the petitioner's case was required to be considered in terms of the policy dt. 1-5-2000 (Annexure R/1) which was prevailing on 25-11-2000, the date when the petitioner applied for compassionate appointment. 8. Accordingly, this petition is disposed. " (emphasis supplied by this Court) 7. In view of the aforesaid order of this Court which has attained finality the petitioner's case was required to be considered in terms of the policy dt. 1-5-2000 (Annexure R/1) which was prevailing on 25-11-2000, the date when the petitioner applied for compassionate appointment. 8. In the case of T. Swami Das (supra), Rakesh s/o Rajendraji Jaju Gupta (supra) it has been held that the application for compassionate appointment has to be considered on the basis of policy which was prevailing when the application for compassionate appointment is made. In the case of Abhishek Kumar (supra) the Supreme Court has observed that the Rules of compassionate appointment in force at the time of the application has to be applied. 9. In the present case the petitioner was minor when his father died. On attaining the age of majority he applied for compassionate appointment on 25-11-2000. In the petitioner's own case an order was passed in WP (S) No. 2496/06 by this Court on 30-4-2007 directing the respondents to consider the petitioner's claim in accordance with the policy existing on the date of submission of application "by him. In the circumstances the contention of the petitioner that his case ought to have been considered on the basis of policy which was prevailing in the year 1986 when his father died cannot be accepted. 10. Coming to the merits of the decision taken by the respondents vide order dt. 18-7-2008 (Annexure P/16) I find that the respondents have duly considered the petitioners application dt. 25-11-2000 by correctly applying the policy dt. 1-5-2000 (Annexure R/1) which was prevailing when the petitioner submitted the application. After considering the conditions of the said policy that in case there is no major member in the family of the deceased government servant the compassionate appointment can be granted to the member of the family who attains the age of majority within three years (amended to five years) of the death of government servant, it was held by the respondents that the petitioner being not eligible under the policy is not entitled for compassionate appointment. Admittedly the petitioner's father died in the year 1986 and the petitioner became major in the year 2000 and applied on 25-11-2000. Thus as per the policy dt. 1-5-2000 the petitioner was rightly denied the compassionate appointment. 11. Admittedly the petitioner's father died in the year 1986 and the petitioner became major in the year 2000 and applied on 25-11-2000. Thus as per the policy dt. 1-5-2000 the petitioner was rightly denied the compassionate appointment. 11. Having regard to the aforesaid, I find no illegality in the impugned order of rejection of the petitioner's claim for the compassionate appointment. This Court cannot ignore that the general rule of appointment is by a competitive recruitment process. The compassionate appointment is exception to that rule and it can be made only in terms of the Scheme for Compassionate Appointment. To get compassionate appointment is not a vested right nor it can be claimed de hors the scheme. In the present case in view of the condition of the policy the petitioner was not entitled to get compassionate appointment after lapse of 5 years (as amended) from the date of the death of his father. In the circumstances no case is made out for interference. 12. Accordingly the petition fails and is hereby dismissed. No orders as to the costs. Petition dismissed.