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Madhya Pradesh High Court · body

2017 DIGILAW 910 (MP)

Abhinash Mishra v. State of M. P.

2017-08-16

ANAND PATHAK

body2017
ORDER 1. The petitioner has filed the present writ petition being crestfallen by the order dated 23.9.2015 (Annexure P-1), by which, the application moved by present petitioner for compassionate appointment has been rejected on the ground that as per clause 3.2 of the Policy dated 29.9.2014, only first living child within one year from his/her attaining the age of majority can apply for compassionate appointment and since in the present case, first child of the deceased employee Late Shri Shivnandan Mishra, namely, Ku. Rashmi Mishra was alive and did not apply for compassionate appointment within one year from the date of her attaining the age of majority (21 years), the case of petitioner for compassionate appointment cannot be considered and same has been rejected. 2. Father of the petitioner Late Shri Shivnandan Mishra died on 21.1.1999 while working as Assistant Teacher, Government Middle School, Panihar, District Gwalior and at that time petitioner was aged about 3 years and nine months. After attaining the age of majority and acquiring the minimum qualification, in the year 2014, he applied for compassionate appointment, under the prevailing Policy. 3. Vide impugned order dated 23.9.2015 (Annexure P-1), the said application has been rejected in light of clause 3.2 of the Policy dated 29.9.2014. Hence, the present petition. 4. Shri Gupta, learned senior counsel for the petitioner submits that the respondents have wrongly rejected the application of the petitioner in light of clause 3.2 of the Policy dated 29.9.2014 on the ground that only first living child within one year from his/her attaining the age of majority can apply for compassionate appointment and since in the present case, first child of the deceased employee Late Shri Shivnandan Mishra, namely, Ku. Rashmi Mishra was alive and did not apply for compassionate appointment within one year from the date of her attaining the age of majority (21 years), the case of petitioner for compassionate appointment cannot be considered, as there is no such condition prescribed in the policy prevailing at that time (at the time of death of petitioner's father) and the case of the petitioner was required to be considered under the said Policy, which was prevailing at the time of death of his father. 5. 5. Per contra, Shri Dixit, learned Government Advocate placed reliance over clause 3.2 of Policy dated 29.9.2014, which puts a bar for entertaining the application for compassionate appointment in case if first living child of the deceased employee did not apply for compassionate appointment within one year from the date of his/her attaining the age of majority. 6. The aforesaid controversy involved in the case of the petitioner is that whether his case would be covered under the Policy dated 29.9.2014 or Policy prevailing at the time of death of petitioner's father. 7. Hon'ble apex Court in the case of Canara Bank v. M. Mahesh Kumar, reported in [ (2015)7 SCC 412 ], has held that the policy in vogue on the time of death of the concerned employee would apply. Paras 13 to 19 of the aforesaid judgment read as under :- “ 13. Applying these principles to the case in hand, as discussed earlier, respondent’s father died on 10.10.1998 while he was serving as a clerk in the appellant-bank and the respondent applied timely for compassionate appointment as per the scheme ‘Dying in Harness Scheme’ dated 8.5.1993 which was in force at that time. The appellant-bank rejected the respondent’s claim on 30.6.1999 recording that there are no indigent circumstancesfor providing employment to the respondent. Again on 7.11.2001, the appellant-bank sought for particulars in connection with the issue of respondent’s employment. In the light of the principles laid down in the above decisions, the cause of action to be considered for compassionate appointment arose when the Circular No.154/1993 dated 8.5.1993 was in force. Thus, as per the judgment referred in Jaspal Kaur’s case, the claim cannot be decided as per 2005 Scheme providing for ex-gratia payment. The Circular dated 14.2.2005 being an administrative or executive order cannot have retrospective effect so as to take away the right accrued to the respondent as per circular of 1993. 14. It is also pertinent to note that 2005 Scheme providing only for ex-gratia payment in lieu of compassionate appointment stands superseded by the Scheme of 2014 which has revived the scheme providing for compassionate appointment. As on date, now the scheme in force is to provide compassionate appointment. Under these circumstances, the appellant-bank is not justified in contending that the application for compassionate appointment of the respondent cannot be considered in view of passage of time. 15. As on date, now the scheme in force is to provide compassionate appointment. Under these circumstances, the appellant-bank is not justified in contending that the application for compassionate appointment of the respondent cannot be considered in view of passage of time. 15. Insofar as the contention of the appellant-bank that since the respondent’s family is getting family pension and also obtained the terminal benefits, in our view, is of no consequence in considering the application for compassionate appointment. Clause 3.2 of 1993 Scheme says that in case the dependant of deceased employee to be offered appointment is a minor, the bank may keep the offer of appointment open till the minor attains the age of majority. This would indicate that granting of terminal benefits is of no consequence because even if terminal benefit is given, if the applicant is a minor, the bank would keep the appointment open till the minor attains the majority. 16. In Balbir Kaur and another v. Steel Authority of India Ltd. and others [ (2000)6 SCC 493 ], while dealing with the application made by the widow for employment on compassionate ground applicable to the Steel Authority of India, contention raised was that since she is entitled to get the benefit under Family Benefit Scheme assuring monthly payment to the family of the deceased employee, the request for compassionate appointment cannot be acceded to. Rejecting that contention in paragraph (13), this Court held as under :- “13. ….But in our view this Family Benefit Scheme cannot in any way be equated with the benefit of compassionate appointments. The sudden jerk in the family by reason of the death of the breadearner can only be absorbed by some lumpsum amount being made available to the family —this is rather unfortunate but this is a reality. The feeling of security drops to zero on the death of the breadearner and insecurity thereafter reigns and it is at that juncture if some lump-sum amount is made available with a compassionate appointment, the grief-stricken family may find some solace to the mental agony and manage its affairs in the normal course of events. The feeling of security drops to zero on the death of the breadearner and insecurity thereafter reigns and it is at that juncture if some lump-sum amount is made available with a compassionate appointment, the grief-stricken family may find some solace to the mental agony and manage its affairs in the normal course of events. It is not that monetary benefit would be the replacement of the breadearner, but that would undoubtedly bring some solace to the situation.” Referring to Steel Authority of India Ltd.’s case, High Court has rightly held that the grant of family pension or payment of terminal benefits cannot be treated as a substitute for providing employment assistance. The High Court also observed that it is not the case of the bank that the respondents’ family is having any other income to negate their claim for appointment on compassionate ground. 17. Considering the scope of the Scheme ‘Dying in Harness Scheme 1993’ then in force and the facts and circumstances of the case, the High Court rightly directed the appellant-bank to reconsider the claim of the respondent for compassionate appointment in accordance with law and as per the Scheme (1993) then in existence. We do not find any reason warranting interference. 18. So far as the cases in Civil Appeal No.266/2008 and Civil Appeal No.267/2008 are concerned, they are similar and those respondents are similarly placed and the appeals preferred by the bank are liable to be dismissed. The appellant-bank is directed to consider the case of the respondents in Civil Appeals No. 266/2008 and 267/2008. 19. In the result, all the appeals preferred by the appellant-bank are dismissed and the appellant bank is directed to consider the case of the respondents for compassionate appointment as per the Scheme which was in vogue at the time of death of the concerned employee. In the facts and circumstances of the case, we make no order as to costs.” 8. This is not the case of the respondents that petitioner has not applied for compassionate appointment within time. In the facts and circumstances of the case, we make no order as to costs.” 8. This is not the case of the respondents that petitioner has not applied for compassionate appointment within time. Therefore, in light of aforesaid decision of Hon'ble apex Court, the policy prevailing at the time of death of petitioner's father will hold the field, and, therefore, in fact situation of the case, impugned order dated 23.9.2015 (Annexure P-1) is hereby set aside and respondents are directed to reconsider the claim of the petitioner for compassionate appointment in light of the policy prevailing at the time of death of petitioner's father, within a period of three months from the date of communication of certificate copy of this order. 9. Petition stands disposed of with the aforesaid direction.