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Madhya Pradesh High Court · body

2017 DIGILAW 939 (MP)

Harshit Sondhiya v. State of Madhya Pradesh

2017-08-29

S.K.GANGELE

body2017
JUDGMENT : S.K. Gangele, J. Because the reply has been filed hence with the consent of the parties this writ petition is heard finally. 2. The petitioner has filed this writ petition against the orders dated 10.3.2014 and 24.12.2014 by which the case of the petitioner for compassionate appointment has been rejected. 3. The father of the petitioner was working as Choukidar in the office of Chief Conservator of Forests, Shahdol, district Shahdol. He died in harness on 18.08.2016, while he was in service. At that time, the petitioner was minor. The petitioner submitted an application for compassionate appointment on 2.9.2011. Although, he had become major on 5.3.2012. There was some discrepancy in regard to date of birth of the petitioner. The Chief Conservator of Forests returned the application of the petitioner mentioning the fact that the petitioner belongs to other Backward Classes Category and at that time no post of Forest Guard was vacant in the department in the category of Other Backward Classes. The case of the petitioner was referred to the Collector. The Collector referred the matter by letter dated 28.06.2013 to the Commissioner, Tribal Development, Shahdol for consideration of the case of the petitioner to the post of Peon. The authority returned the case to the Collector with the observation that no post of Peon was vacant in the department under the OBC category. Thereafter, the Collector returned the case back to the Forest Department on 31.1.2014. 4. Thereafter, the department had taken a decision that the father of the petitioner had died on 18.8.2006 and within a period of seven years from the death i.e. on 17.8.2013, no post of Peon was available in the department, hence, the petitioner is not eligible to be considered for compassionate appointment on Class 4th post. The department had also taken a decision to grant Rs. 1 lac in lieu of compassionate appointment to the petitioner. 5. Learned counsel for the petitioner has submitted that the as per policy for compassionate appointment, (Ann. P-3), dated 18th August 2008, clause 3 of the policy would not be applicable in the case of the petitioner. The petitioner would be governed by Clause 7 of the Policy, hence, the order passed by the authority, (Ann. P-1) is contrary to policy. 6. P-3), dated 18th August 2008, clause 3 of the policy would not be applicable in the case of the petitioner. The petitioner would be governed by Clause 7 of the Policy, hence, the order passed by the authority, (Ann. P-1) is contrary to policy. 6. Learned counsel for the State has submitted that the authority has rightly rejected the application of the petitioner applying Clause 3 of the compassionate appointment policy. 7. The question for consideration before the court is that whether the case of the petitioner is governed by Clause 3 of the Compassionate Appointment Policy or Clause 7 thereof. 8. Clause 3.2 of the policy prescribes that if a post is available within a period of seven years from the date of death of Government Employee, then his dependent would be eligible to be considered for compassionate appointment. It means, that if no post is available as per eligibility of the dependent within seven years of death of an employee, the case of the dependent could not be considered for compassionate appointment. Clause 7 of the policy is in regard to minor members. Clause 7.1 reads as under :- ^^7-1 & ;fn fnoaxr 'kkldh; lsod ds ifjokj esa dksbZ ik= O;Ld lnL; ugha gS rks 'kkldh; lsod dh e`R;q fnukad ls 7 o"kZ rd dh vof/k esa o;Ld gkus ij vuqdaik fu;qfDr nh tk ldsxhA blds i'pkr~ ;fn og o;Ld gksrk gS rks vuqdaik fu;qfDr dh ik=rk ugha gksxhA** 9. As per aforesaid clause, if there was no adult member at the time of death of a Government employee, then within a period of seven years the family members of deceased employee, who was minor could be considered for compassionate appointment after attaining the age of majority. It means that minor member would be eligible to be considered for compassionate appointment, if he attains the age of majority within seven years from the date of death of deceased employee. 10. It is a fact that in the present case the petitioner attained the majority within seven years from the date of death of his father. He submitted an application. However, the application of the petitioner was rejected because within seven years from the death of father of the petitioner, no post was available in the department. 10. It is a fact that in the present case the petitioner attained the majority within seven years from the date of death of his father. He submitted an application. However, the application of the petitioner was rejected because within seven years from the death of father of the petitioner, no post was available in the department. In my opinion, the reasoning assigned by the department in rejecting the claim of the petitioner for compassionate appointment is contrary to the policy. Clause 3 is applicable, if the dependent was eligible to be considered for compassionate appointment on the date of death of the deceased Government Employee. However, if he was minor at that time, then Clause 7 would be applicable. It is an independent clause. 11. Learned counsel for the State has submitted that Clause 7 and 3.2 be read simultaneously. In my opinion, both the clauses are independent and they could not be read together because that would frustrate the purpose of compassionate appointment. Suppose a person attains the majority after a period of six years of the death of an employee, and if there is no post vacant in the department, then he would not be eligible to be considered for compassionate appointment. This would be absurd proposition. 12. It is well settled principle of law that compassionate appointment can not be claimed as a matter of right. The policy prescribes the right to be considered for compassionate appointment to a member of the deceased-employee, if the family member was minor at the time of death, legal right has accrued to the person concerned. In the present case the reason put fourth by the department is not proper. 13. Hence, this writ petition is allowed. The impugned orders, Annexure P-1 and P-2 are hereby quashed. The department is directed to consider the case of the petitioner for compassionate appointment on the post which may fall vacant within a period of seven years from the date of attaining the majority of the petitioner. 14. While considering the case of the petitioner, the authority shall consider the recommendation of the concerned officers. 15. No order as to costs.