ORDER 1. By this writ petition the petitioner has challenged the order dated 17.10.2014 (Annexure P-12), by which the petitioner’s application for compassionate appointment has been rejected on the ground that another son of the deceased employee is already in Government service, therefore, the petitioner is not eligible for compassionate appointment. 2. In brief, the case of the petitioner is that his mother was working as Assistant Teacher in a Government Primary School and died in harness on 11.5.2013, therefore, the petitioner had made an application for compassionate appointment. The petitioner’s brother Vikram Singh Parmar had also given the affidavit that he was working as Sainik in SAF and is in Government service but is living separately with his wife and has no connection with the other members of the family. By the impugned order dated 17.10.2014 the application for compassionate appointment has been rejected. 3. Learned counsel appearing for the petitioner submits that since the petitioner’s brother is living separately and has no connection with the other family members of the deceased employee, therefore, the petitioner’s application for compassionate appointment cannot be rejected on that ground. In this regard he has placed reliance upon the order passed by the coordinate bench of this Court dated 15.1.2014 in Writ Petition No.12017/2012 and the judgment of this Court in the matter of Prakash Parmar v. Government of M.P., reported in 2012 MPLJ (4) 539. As against this, learned counsel for the respondents submits that since one of the family member of the deceased employee is already in Government service, therefore, compassionate appointment cannot be granted to the petitioner. 4. Having heard the learned counsel for the parties and on perusal of the record, it is noticed that the petitioner is claiming compassionate appointment in terms of the Circular dated 18.8.2008 and Clause 4.1 of the said circular in clear terms provides that if any of the eligible family member of the deceased employee is already in Government service or service of the Corporation, Board, Parishad, Commission etc., then the other member-applicant will be ineligible for compassionate appointment. 5. 5. The aforesaid clause 4.1 of the circular dated 18.8.2008 has already been considered by the Division Bench in the matter of Prajesh Shrivastava v. State of M.P. and others, reported in 2016(2) JLJ 170 =(2016)3 MPLJ 88, while taking the view that if one of the family member eligible for compassionate appointment is in the employment in Government service or Corporation, Board etc., then any other member of the family though eligible will not be entitled for compassionate appointment. The Division Bench after examining the entire matter in detail has held as under :- “26. Therefore, merely because a member of the family of Government servant, who is in the employment in Government service, or corporation, board, council, commission etc., has started residing separately, he cannot be excluded from the class under Clause 4.1 of the Policy. 27. There are other reasons why we are of the opinion that the family member in employment but living separately has to be treated as a member of family of deceased Government servant. 28. Trite it is that appointment to public service is to be on merit in accordance with the rules furthering the principle enunciated in Article 16 of the Constitution of India, which mandates that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. Exception, however, has been carved out in favour of dependents of employees who die in harness and leaving their family in penury and without any means of livelihood. For that, State Government has evolved a policy for appointment on compassionate ground with an object to provide immediate relief to such bereaved family. 29. While dwelling upon this aspect, it has been held by the Supreme Court in Haryana State Electricity Board v. Hakim Singh [ (1997)8 SCC 85 ] - 8. The rule of appointments to public service is that they should be on merits and through open invitation. It is the normal route through which one can get into a public employment. However, as every rule can have exceptions, there are a few exceptions to the said rule also which have been evolved to meet certain contingencies. As per one such exception belief is provided to the bereaved family of a deceased employee by accommodating one of his dependents in a vacancy. However, as every rule can have exceptions, there are a few exceptions to the said rule also which have been evolved to meet certain contingencies. As per one such exception belief is provided to the bereaved family of a deceased employee by accommodating one of his dependents in a vacancy. The object is to give succour to the family which has been suddenly plunged into penury due to the untimely death of its sole bread-winner. This Court has observed time and again that the object of providing such ameliorating relief should not be taken as opening an alternative mode of recruitment to public employment.”� 30. Thus, while acknowledging the exception carved out for appointment on compassionate ground, it has been categorically observed that object of providing such an ameliorating relief should not be taken as opening an alternative mode of recruitment to public employment. Similarly, in Mumtaz Yunus Mulani v. State of Maharashtra [ (2008)11 SCC 384 ], it is held - 11. However, it is now a well settled principle of law that appointment on compassionate ground is not a source of recruitment. The reason for making such a benevolent scheme by the State or the Public Sector Undertaking is to see that the dependents of the deceased are not deprived of the means of livelihood. It only enables the family of the deceased to get over the sudden financial crisis. 31. The foremost factor for consideration for appointment on compassionate ground, therefore, is to protect the family in question from penury on the death of sole bread earner. It is in the light of this aspect Clause 4.1 is to be understood. It states that in case any eligible member of the deceased family is in Government service, he will not be entitled for appointment on compassionate ground. Apparently, the Clause is loosely drafted. If a family member at best residing separately is already in employment in Government service, there is no need for him to file an application for appointment on compassionate ground in lieu of death of father, mother or brother, as the case may be. The need arises only when no one in the family is in employment of the State or instrumentality of the State and there is sudden death of the sole bread earner. 32. The need arises only when no one in the family is in employment of the State or instrumentality of the State and there is sudden death of the sole bread earner. 32. We, therefore, respectfully disagree with the interpretation given to Clause 4.1 of the Policy for compassionate appointment in Ku. Priyanka Dixit (supra), and Prakash Parmar (supra), and hold that where in a family of deceased Government servant, any of the member eligible for compassionate apportionment is in the employment in government service or corporation, board, council, commission etc., any other member of the family, though eligible, will not be entitled for appointment on compassionate ground. 6. Learned counsel for the petitioner has placed reliance upon the Single Bench judgment in the matter of Prakash Parmar v. Government of M.P. dated 29.3.2012 but the said judgment has already been overruled by the Division Bench. He has also placed reliance upon the judgment dated 15.1.2014 passed in Writ Petition No.12017/2012 by the Single Bench in the matter of Manish Kalosiya v. Commissioner, Nagar Palika Nigam, Ratlam but in view of the Division Bench judgment the benefit of contrary view taken in the Single Bench judgment cannot be granted to the petitioner. In view of the fact that the petitioner’s brother who is also one of the family member of the deceased employee, is already in Government service, the respondents have not committed any error in rejecting the petitioner’s application for compassionate appointment in view of Clause 4.1 of the Circular dated 18.8.2008. The writ petition is accordingly found to be devoid of any merit, which is dismissed. Rakesh Pal for petitioner; C. S. Ujjainiya for respondent/State. 2017 (I) MPWN 56 Rohit Arya, J. Bharti (Smt.) @ Bhoori v. State of M.P. and others Writ Petition No.155 of 2015 (G); Decided on 24.1.2017.* Civil P.C., 1908 -- O.6 R.17 -- petitioner/plaintiff’s application for amendment -- ultimate purpose of trial of suit -- is to ensure substantial justice between parties -- amendment proposed is relevant to issues involved in suit -- trial Court was directed to reconsider amendment application afresh -- opportunity to petitioner to lead evidence afforded subject to cost of Rs.5,000/- payable to respondents No.1 and 2. [Paras 8 & 9 flfoy izfØ;k lafgrk] 1908 & vk-6 fu-17 & ;kph@oknh dk la'kks/ku ds fy, vkosnu & okn ds fopkj.k dk vafre iz;kstu & i{kdkjksa ds chp lkjoku~ U;k; lqfuf'pr djuk gS & izLrkfor la'kks/ku okn esa varxzZLr fook|dksa ls lqlaxr gS & la'kks/ku vkosnu ij u, fljs ls iqufoZpkj djus ds fy, fopkj.k U;k;ky; funsf'kr & izR;FkhZx.k Ø- 1 rFkk 2 dks ns; O;; #i;s 5]000@& ds v/;;/khu ;kph dks lk{; izLrqr djus ds fy, volj iznku fd;k x;kA ¼iSjk 8 ,oa 9½ ORDER 1. Petitioner/plaintiff taking exception to the order dated 16.12.2014 passed by the trial Court, has approached this Court with the grievance that by the impugned order, the petitioner has been subjected to the double jeopardy, as much as, not only the petitioner’s application for amendment under Order 6 rule 17 of CPC is dismissed but the right to lead evidence has also been closed. 2. It is contended that the suit for declaration and injunction is pending consideration. During pendency of the suit due to the subsequent event in the contest of breaking the wall and the stairs leading to the passage towards the plaintiff’s house, defendants have raised an iron gate and thereby have taken possession of the suit site. Therefore, an amendment application was filed seeking leave of the Court to incorporate the alleged incident as well as the relief of recovery of possession. 3. The said application has been rejected on the premise that the suit though is of the year 2014 and as many as 15 opportunities have been afforded to the petitioner/plaintiff to lead evidence but instead of leading evidence, plaintiff has moved an application for amendment, therefore, the amendment has been found to be lacking in bona fide and therefore, commenting upon the conduct of the petitioner/plaintiff, the impugned order has been passed. 4. Shri Jain, learned counsel for the petitioner contends that if the order sheets referred in the impugned order are perused, it is evident that on most of the dates miscellaneous applications were filed by either parties and hearing of the case was adjourned. However, it is pertinent to mention that on 27.10.2014, 14.11.2014 and 1.12.2014, the evidence was led by the plaintiff and therefore it is incorrect to say that despite case being fixed for evidence, adjournment was sought. 5. However, it is pertinent to mention that on 27.10.2014, 14.11.2014 and 1.12.2014, the evidence was led by the plaintiff and therefore it is incorrect to say that despite case being fixed for evidence, adjournment was sought. 5. Shri Prashant Sharma, learned counsel for the respondents No.1 and 2 contends that the aforesaid averment is based on fabricated facts. Defendants have always been in possession of the suit property. There is no alleged incident as stated in the averments. Now the petitioner seeks to change the nature of the suit by incorporating the relief of recovery of possession in a suit for declaration and injunction, hence, neither the amendment can be allowed nor the petitioner can be extended the liberty to lead the evidence. 6. Heard. 7. Upon perusal of the order sheets placed on record, there appears to be substance in the submission advanced by the learned counsel for the petitioner/plaintiff that it is not correct position that since 2.9.2012 till 15.12.2014, the petitioner has all along been granted time to lead evidence. On number of dates, the case was posted for hearing of miscellaneous applications filed on different dates. That aprt, on 27.10.2014, 14.11.2014 and 1.12.2014, the plaintiff has led the evidence, therefore, the observation in the impugned order that the petitioner avoided to lead evidence on 15 occasions is not found to be in consonance with the record. 8. True, it is, that the suit is of the year 2012 and therefore, the same should be decided within five years but at the same time, trial Court is also required to bear in mind that the course of justice cannot be impeded only for the aforesaid reason as depending upon the facts and circumstances of each case the trial Court is required to ensure that the parties of the suit are not put to prejudice, as ultimate purpose of trial of suit is to ensure substantial justice between the parties. In the instant case, not only the amendment application has been dismissed but also the right to lead evidence has been closed. Upon perusal of the amendment application, neither this Court nor the trial Court can ponder over the merits of the amendment and is required to see only the relevancy of the amendment to the controversy involved in the suit. Upon perusal of the amendment application, neither this Court nor the trial Court can ponder over the merits of the amendment and is required to see only the relevancy of the amendment to the controversy involved in the suit. This Court finds that the amendment proposed in no way can be said to be out of context or not relevant to the issues involved in the suit between the parties, however, defendants shall be extended due liberty to amend the written statement. 9. Consequently, the writ petition is allowed. The impugned order is set aside and the trial Court is directed to reconsider the amendment application afresh with due opportunity to the defendants and thereafter proceed with the trial affording opportunity to the petitioner to lead evidence subject to cost of Rs.5,000/- payable to the respondents No.1 and 2. 10. The suit is of the year 2012, therefore, the trial Court shall ensure that the suit is decided within seven months. It is made clear that the plaintiff shall neither ask for adjournment nor be granted adjournment to lead evidence and the trial Court shall proceed with the suit strictly according to the schedule fixed bya the trial Court.