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Madhya Pradesh High Court · body

2010 DIGILAW 271 (MP)

Pratibha Chauhan v. State of M. P.

2010-03-09

N.K.MODY

body2010
JUDGMENT 1. Being aggrieved by the judgment dated 29.8.2008, passed by IV the Addl. District Judge, Dhar in Civil Appeal No. 6-A/2006, whereby the judgment dated 22.3.2006 passed by IInd Civil Judge Class II, Dhar in Civil Suit No. 52A/2005, whereby suit filed by the appeal ant was decreed, was set aside, the present appeal has been filed. 2. Short facts of the case are that appellant filed a suit before the learned Civil Court on 17.7.2003 alleging that appellant is the daughter of Mahendra Singh Chouhan, who was working as Operator in the Department of Public Health Engineering and was posted at Sub-Division Dhar. Further case of the appellant was that Mahendra Singh Chouhan died during course of his employment on 10.3.1997. At that time age of the appellant was 16 years. It was alleged that as per the Rules of the State Government appellant is entitled for a job being a dependent of the deceased. It was alleged that since mother of the appellant was not physically fit, therefore she is not interested for compassionate appointment. It was also alleged that appellant is entitled for compassionate appointment with the consent of her mother. It is submitted that mother of the appellant has given in writing in the office or the respondents that upon completion of the age of 18 years appellant he placed in job in place of her father. It was alleged that an application was filed by the appellant on 8.11.1999 along with all the relevant documents, thereafter reminders were given from time-to-time from 8.11.1999 to 25.1.2001 but no reply was given. It was prayed that suit tiled by the appellant be allowed and compassionate appointment be given to the appellant as per Rules, which were in existence at the time of death of her father. 3. The suit was contested by the respondents by filing the written statement, wherein it was alleged that deceased Mahendra Singh Chouhan was a work charge employee. therefore, dependents of the deceased are not entitled for any relief. It was prayed that appellant is not entitled for compassionate appointment as of right. It was prayed that suit be dismissed. After framing of issues and recording of evidence learned trial Court decreed the suit holding that the appointment be given to the appellant on the post of Class III/Class N employees as per order No. C-3/94/3/1 dated 10.6.1994. It was prayed that appellant is not entitled for compassionate appointment as of right. It was prayed that suit be dismissed. After framing of issues and recording of evidence learned trial Court decreed the suit holding that the appointment be given to the appellant on the post of Class III/Class N employees as per order No. C-3/94/3/1 dated 10.6.1994. It .vas also directed that the compassionate appointment of the appellant shall be treated w.e.f. 8.11.1999. In appeal filed by the respondents the judgment passed by the learned trial Court is set aside against which the present appeal has been filed. 4. The appeal is admitted on the following substantial question of law : "Whether in the facts and circumstances of the case learned Appellate Court was justified in allowing the appeal filed by the respondents and setting aside the judgment and decree passed by the learned trial Court" 5. Smt. Purnima Kanoongo, learned counsel for the appellant submits that impugned judgment passed by the learned Appellate Court is illegal incorrect and deserves to be set aside. Learned counsel submits that learned Appellate Court committed error in holding that no application was filed by-the appellant on 8.11.1999. It is submitted that learned Appellate Court further committed error in holding that the application submitted by the appellant is after issuance of the circular dated 19.5.2000 Ex. D/1 it is submitted that as per circular dated 15.12.2000 also appellant is entitled for appointment on compassionate basis. It is submitted that appeal be allowed and the impugned judgment passed by the learned Appellate Court be set aside. 6. Miss Seema Sharma, learned Dy. Govt. Advocate submits that no illegality has been committed by the learned Appellate Court in allowing the appeal and setting aside the decree passed by the learned trial Court. Learned counsel submits that Ex. PIS is the application submitted by the appellant for the first time on 1.6.2000. It is submitted that this is the application, which was submitted on the prescribed form and prior to it circular dated 1.5.2000 came into force and according to that circular legal representatives of work charge employee and daily rated employee are not entitled for compassionate appointment. Learned counsel further submits that as per circular amended policy regarding compassionate appointment, which has been duly amended on 18.8.2008 appellant is not entitled for the job. Learned counsel further submits that as per circular amended policy regarding compassionate appointment, which has been duly amended on 18.8.2008 appellant is not entitled for the job. It is submitted that appeal has no force and deserves to be dismissed. 7. The policy relating to compassionate appointment is amended from time-to-time. As per amended policy dated 18.8.2008 clause 12 which deals with work charge and daily rated employee, which reads as under: 12- dk;ZHkkfjr@vkdfLedrk ,oa nSfud osru Hkksfx;ksa gsrq izko/kku % 12-1 dk;ZHkkfjr@vkdfLedrk fuf/k ls osru ikus okys ,oa nSfud osru Hkksxh deZpkfj;ksa ds fnoaxr gksus ij vuqdaik fu;qfDr dh ik=rk ugha gksxh] ijarq muds ifjokj ds vkfJr ukekafdr lnL; dks ,d eq'r ,d yk[k :i;s dh jkf'k vuqdaik vuqnku ds uke ls nh tkosxhA mlesa xzsP;qVh dh jkf'k lfEefyr ugha gksxhA bl jkf'k dk Hkqxrku lacaf/kr foHkkx ds dk;ZHkkfjr@vkdfLedrk ds en ds varxZr osru ds en ls fd;k tk;sxkA 8. Appellant has filed the documents Ex. P/1 to Ex. P/25 is Mark-sheet of appellant of High School in which the date of birth is mentioned as 20.6.1980. Ex. P/2 is the birth certificate, Ex. P/3 is domicile certificate, Ex. P/5 is the application submitted by mother of appellant wherein it is mentioned that earlier also 11 applications have been submitted by the appellant between 8.11.1999 to 9.5.2002. Ex. P/6 is the letter issued by Executive Engineer to Superintendent Engineer wherein it is mentioned that in the application it is submitted by the mother of the appellant that in case no action is taken, then appellant will be compelled to approach the Court, Ex. P/7 is the application on the format for compassionate appointment and Ex. P/9 to Ex. P /17 are the applications submitted by the appellant from time to time for the same relief. 9. Appellant has examined herself as PW/1, while respondents have examined Prakash Chandra Vyas (Sub-Engineer) and has produced the document. Ex. D/1 which is the photocopy of the letter dated 28.5.2001 whereby it is stated that as per new guideline dated 1.5.2000 and 15.12.2000 there is no provision for compassionate appointment for the dependents of work charge and daily rated employee. 10. From perusal of the record it is evident that the father of the appellant died on 10.3.1997. Compassionate appointment has been denied to the appellant on the basis of Ex. D/1, which is the letter issued by Dy. 10. From perusal of the record it is evident that the father of the appellant died on 10.3.1997. Compassionate appointment has been denied to the appellant on the basis of Ex. D/1, which is the letter issued by Dy. Secretary on 28.5.2001 wherein it is mentioned that as per new policy dated 1.5.2000 and 15.12.2000 there is no provision for compassionate appointment for work charge and daily rated employee. Another ground which has been taken by the learned Appellate Cow for dismissal of appeal is that the first application which has been alleged to have been submitted by the appellant is dated 8.11.1999 and the copy of the same is not on record and other applications which were submitted by the appellant for compassionate appointment which are marked as Ex. P/5. Ex. P/6. Ex. P/I7. Ex. P/7 (c). Ex. P/12. Ex. P/13 and Ex. P/15 are after issuance of circular dated 19.5.2001. On the basis of this learned appellate Court has held that since on the date when the application was filed by the appellant, appellant was not entitled for compassionate appointment as per the circular therefore, appellant is not entitled for any relief. 11. From perusal of the record it is evident that in the application Ex. P/5 which is dated 8.7.2002 mother of appellant has mentioned the details of all the relevant applications which were submitted by the appellant from time to time which are dated 8.11.1999. 1.1.2000, 1.6.2000, 29.12.2000, 25.1.2001, 24.2.2001, 16.3.2001, 9.8.2001, 3.9.2001, 13.2.2002 and 9.5.2002. It is true that the application dated 8.11.1999 is not on record. but in para-2 of the plaint it has been specifically pleaded by the appellant that the application was submitted on 8.11.1999 and in the written statement it is not denied by the respondents that the application was not submitted by the appellant on 8.11.1999. On the contrary, reply of the respondents is that appellant cannot claim compassionate appointment as of right. Apart from this in her examination-in-chief which is on affidavit it has been specifically stated by the appellant that the application for compassionate appointment was submitted by the appellant on 8.11.1999 and there is no cross-examination by the respondents to the effect that no application was filed by the appellant on 8.11.1999. Apart from this in her examination-in-chief which is on affidavit it has been specifically stated by the appellant that the application for compassionate appointment was submitted by the appellant on 8.11.1999 and there is no cross-examination by the respondents to the effect that no application was filed by the appellant on 8.11.1999. Thus, the claim of the appellant for compassionate appointment cannot be denied on the ground that on the date when the application was filed by the appellate as per the policy appellant was not entitled to claim for compassionate appointment. 12. In the matter of T. Swamy Dass v. Union of India, 2002 (I) JLJ 350 in a matter of compassionate appointment Division Bench of this Court has held that the case should be considered under the policy effective on the date of application. 13. Since the father of appellant died on 10.2.1997 and the first application which was submitted by the appellant was dated 8.11.1999, therefore, respondents are bound to consider the application as per the policy which was prevailing on the date of the application. In view of this appeal filed by the appellant is allowed and the judgment passed by the learned Appellate Court is set aside and the respondents are directed to consider the case of appellant as per compassionate appointment policy which was in force on the date of first application filed by appellant on 8.11.1999 within a period of four months positively without fail. In case of default on the part of respondents in complying with the directions issued by this Court, respondents shall be further liable to pay unemployment allowance to the appellant @ Rs. 2,000/- per month, which shall be recoverable from the officers who commit default. 14. With the aforesaid observations, appeal stands disposed of.