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Madhya Pradesh High Court · body

2020 DIGILAW 397 (MP)

NEERAJ KUMAR MASIH v. STATE OF M. P.

2020-03-06

G.S.AHLUWALIA

body2020
ORDER/JUDGMENT – Shri S. K. Sharma, counsel for the petitioner. Shri R. K. Soni, Government Advocate for the State. This petition under Article 226 of the Constitution of India has been filed seeking the following relief : – “(i) That, the impugned order dated 5-1-2018 Annex. P/1 and any other order debarring petitioner from compassionate appointment be held illegal and be quashed. (ii) That, respondents may kindly be directed to extend the compassionate appointment to the petitioner similarly to the other candidate with all service benefits. (iii) That, any other relief which this Hon’ble High Court may deem fit, with cost of the petition.” 2. It is submitted by the counsel for the petitioner that the father of the petitioner was working as a Driver in work-charged establishment and died in harness on 7-2-2015 leaving behind the petitioner as well as widow and daughter. Accordingly, the petitioner filed an application on 2-3-2015 for appointment on compassionate ground. It is submitted that relying upon the said amendment in the policy, the respondent has given the appointment on compassionate ground to the other aspirants, whereas the case of the petitioner has been rejected by awarding ex gratia compensation of Rs. 2,00,000/- as provided in the policy dated 29-9-2014. It is further submitted that it is well established principle of law that the policy for compassionate appointment, which was in vogue on the date of consideration of the application would be applicable and thus the rejection of the claim of the petitioner for his appointment on compassionate ground has been wrongly rejected and, therefore, the respondents may be directed to re-consider the case of the petitioner in the light of the amendment dated 31-8-2016 (Annexure R-2). 3. Per contra, it is submitted by the counsel for the respondents that the State by its letter dated 21-3-2017 has issued a clarification that the application for appointment on compassionate ground shall be considered on the basis of the policy which is in force on the date of death of employee. 4. Heard the learned counsel for the parties. 5. As per policy for compassionate appointment dated 29-9-2014, the following was the provision of the work-charged employees : 6. Thus, it is clear that earlier there was no provision for grant of appointment on compassionate ground to the dependents of the work-charged employee. 7. 4. Heard the learned counsel for the parties. 5. As per policy for compassionate appointment dated 29-9-2014, the following was the provision of the work-charged employees : 6. Thus, it is clear that earlier there was no provision for grant of appointment on compassionate ground to the dependents of the work-charged employee. 7. However, by circular dated 31-8-2016, it was decided that the appointment to the dependents of the work-charged employees be also given as per the policy. 8. The Full Bench of this Court by judgment passed in the case of State of M. P. and others vs. Laxman Prasad Raikwar, reported in 2018(4) M.P.L.J. (F.B.) 657, has held as under : – “9. In view of the aforesaid, we follow the ratio laid down by the Full Bench of this Court in the case of Bank of Maharasthra vs. Manoj Kumar Dehria (supra) and the reference is answered that compassionate appointment can not be claimed as a matter of right as it is not a vested right and the policy prevailing at the time of consideration of the application for compassionate appointment would be applicable.” 9. Thus, it is clear that the policy prevailing at the time of consideration of the application for compassionate appointment would be applicable. 10. According to the petitioner, he had moved an application for appointment on compassionate ground on 2-3-2015. It appears that the respondents by order dated 13-4-2015 sanctioned ex-gratia compensation amount of Rs. 2,00,000/- in favour of the mother of the petitioner. It is fairly conceded by the counsel for the petitioner that the amount of Rs. 2,00,000/- was also deposited in the account of the mother of the petitioner. 11. However, counsel for the petitioner constantly avoided the question of this Court as to whether the said amount of Rs. 2,00,000/- has been utilized by the mother of the petitioner or not. 12. The crux of the matter is that the application filed by the petitioner for his appointment on compassionate ground on 2-3-2015 was impliedly decided by the respondents by order dated 13-4-2015 by awarding the ex-gratia compensation of Rs. 2,00,000/- to the mother of the petitioner. 13. 2,00,000/- has been utilized by the mother of the petitioner or not. 12. The crux of the matter is that the application filed by the petitioner for his appointment on compassionate ground on 2-3-2015 was impliedly decided by the respondents by order dated 13-4-2015 by awarding the ex-gratia compensation of Rs. 2,00,000/- to the mother of the petitioner. 13. From the letter dated 9-12-2016 written by Executive Engineer, PWD, Gwalior, which was addressed to the Chief Engineer, PWD, Gwalior, it appears that the petitioner gave it in writing that he does not require ex-gratia compensation amount, but compassionate appointment may be granted. Since, the petitioner has not filed the copy of the letter written by him, therefore it is not clear whether it was written with the consent of his mother or not. However, from letter dated 9-12-2016, it appears that the letter was written by the petitioner, on 21-9-2016 (As is evident from Sr. No. 2 of the details of the person to whom the copy of the letter dated 9-12-2016 was sent). From letter dated 9-12-2016, it is clear that even the mother of the petitioner, to whom an amount of Rs. 2.00 lakh was paid had not made any application to the respondents for return/refund of Rs. 2.00 lakhs. 14. The petitioner has filed a rejoinder and has taken following stand : – “(1).................on the other hand respondents have made the wrong submission regarding payment of compensation so far as order dated 13-4-2015 is concern same is not received by the petitioner and his mother on the contrary from the inception of taking the action by the respondents petitioner is praying for compassionate appointment as his condition need token help.” 15. Thus, the petitioner has taken a every evasive and misleading stand and has not approached this Court with clean hands. Whosoever, approaches the Court for redressal of his grievance, is expected to place the correct facts on record. From the facts of the case as pleaded by the petitioner, it appears that after the amendment in the policy of compassionate appointment on 31-8-2016, the petitioner filed an application for grant of compassionate appointment. However, the petitioner could not point out any provision in the letter dated 31-8-2016, which empowers the respondents to reopen those cases, which were already decided prior to 31-8-2016. 16. However, the petitioner could not point out any provision in the letter dated 31-8-2016, which empowers the respondents to reopen those cases, which were already decided prior to 31-8-2016. 16. So far as the contention of the petitioner that the respondents have granted compassionate appointment to the other employees is concerned, the facts of each and every case would stand on different footings. Further, it is well established principle of law that the compassionate appointment is not a vested right of the dependents of the deceased employee. It is dependent upon various factors and it cannot be treated as an alternative mode of recruitment. In the return, it has been mentioned by the respondents that ex-gratia compensation amount was already granted to the mother of the petitioner on 31-4-2015 i.e., much prior to circular dated 31-8-2016 by which it was decided that the dependents of the work-charged employees can also be given appointment on compassionate ground. Further, the principle of Negative Equality is unknown to the principle of Equality enshrined under Article 14 and 16 of the Constitution of India. 17. The Supreme Court in the case of Vishal Properties (P) Ltd. vs. State of U. P., reported in (2007) 11 SCC 172 has held as under : 13. Even otherwise, Article 14 is not meant to perpetuate an illegality. It provides for positive equality and not negative equality. Therefore, we are not bound to direct any authority to repeat the wrong action done by it earlier. In Sushanta Tagore vs. Union of India this Court rejected such a contention as sought to be advanced in the present case by observing : (SCC pp. 28-29, para 36) “36. Only because some advantages would ensue to the people in general by reason of the proposed development, the same would not mean that the ecology of the place would be sacrificed. Only because some encroachments have been made and unauthorised buildings have been constructed, the same by itself cannot be a good ground for allowing other constructional activities to come up which would be in violation of the provisions of the Act. Illegal encroachments, if any, may be removed in accordance with law. It is trite law that there is no equality in illegality.” 14. Illegal encroachments, if any, may be removed in accordance with law. It is trite law that there is no equality in illegality.” 14. This view also finds support from the judgments of this Court in Sneh Prabha vs. State of U. P., Secy., Jaipur Development Authority vs. Daulat Mal Jain, State of Haryana vs. Ram Kumar Mann and Faridabad CT Scan Centre vs. D. G. Health Services.” 18. Accordingly, it is held that the respondents did not commit any mistake by rejecting the claim of the petitioner for appointment on compassionate ground. 19. The petition fails and is hereby dismissed.