Madhya Pradesh High CourtMeenakshi Dubey vs Madhya Pradesh Poorva Kshetra Vidyut ... on 8 January, 2020Equivalent citations: AIRONLINE 2020 MP 128Author:Sanjay YadavBench:Sanjay Yadav,Atul Sreedharan1\n\n                                                          WA-756-2019\n\n\n      THE HIGH COURT OF MADHYA PRADESH\n                           (Division Bench)\n\n                     Writ Appeal No.756/2019\n\n                         Meenakshi Dubey\n                               versus\n Madhya Pradesh Poorva Kshetra Vidyut Vitran Company Limited\n                              and others\n\nShri Anubhav Jain, Advocate for appellant.\nShri Ankit Agrawal, Advocate for respondent No.3.\n\nCORAM :\n     Hon'ble Mr. Justice Sanjay Yadav, Judge\n     Hon'ble Mr. Justice Atul Sreedharan, Judge\n\n                             ORDER(Jabalpur, dated : 08.01.2020)\n\nPer : Sanjay Yadav, J :-This appeal under Section 2(1) of the Madhya Pradesh Uchcha\n\nNyayalaya (Khandpeeth Ko Appeal) Adhiniyan, 2005, is directed\n\nagainst the order dated 08.01.2019 passed in Writ Petition\n\nNo.9631/2017 whereby, challenge to order dated 20.01.2017 has\n\nbeen negatived.2.   That, by order dated 20.01.2017, claim of the petitioner for\n\ngrant of compassionate appointment in lieu of death of her father\n\nwas negatived on the ground that she does not fall in the category of2WA-756-2019\n\n\npersons who are entitled for such appointment as stipulated in\n\nClause 2.2 of the Chief General Manager's Order No. lk&435/7836-\n\n37 dated 12.12.2014 which stipulates that "only son, unmarried\n\ndaughter, widowed daughter or divorcee daughter dependent on the\n\nemployee who dies in harness" are entitled for consideration for\n\nsaid appointment. As the petitioner was a married daughter, she was\n\ndeclined the appointment.3.    Father of the petitioner was employed as Senior Lineman with\n\nrespondent-organization who died while in service on 05.04.2016.\n\nPetitioner, married daughter, living with her husband, gave a\n\nrepresentation seeking appointment on compassionate ground on the\n\nplea that her mother is old and the brother is vagabond and has not\n\nborne the responsibility. It was stated that the petitioner was\n\ndependent on his parents and almost separated with her husband.\n\nEvidently, no order regarding judicial separation or of divorce was\n\nfiled. Be that as it may. The petitioner was not falling within the\n\ncategory under Clause 2.2 of the Policy.4.     Learned Single Judge observing that the petitioner does not\n\nfall into any of the category of Clause 2.2 and that the petitioner did\n\nnot challenge its validity, declined indulgence. It also observed :"That apart, the division bench in the similar\n      circumstances vide order dated 23/10/2017 passed in3WA-756-2019\n\n\n     WP No.270/2017 in the case ofSanjay Shriwas Vs. The\n     Chairman-cum-Managing Director MP Paschim Kshetra\n     Vidyut Vitaran Co.Ltd & anotherand vide order dated\n     10/7/2018 in WP No.7713/2016 in the case of Ravi\n     Talimpuri Vs. State of MP & four others has upheld the\n     policy as also the order of rejection of compassionate\n     appointment based upon the Policy of 2013.That apart, in the present case, the claim for\n     compassionate appointment is in respect of the married\n     daughter and there is nothing on record to show that the\n     married daughter has no means to support herself.\n     Having regard to the aforesaid, I am of the opinion that\n     the respondents have not committed any error in\n     rejecting   the   petitioners   case   for   compassionate\n     appointment by the impugned order dated 14/7/2017\n     because the petitioner is not eligible as per the terms of\n     the Policy of Compassionate Appointment of 2013."5.   Appellant questions the order on the contention that the view\n\ntaken by learned Single Judge is contrary to the decision by a\n\nDivision Bench at Indore in the case ofSmt. Meenakshi vs State of\n\nMadhya Pradesh & others: Writ Petition No.3769/2017 decided\n\non 09.10.2018; wherein the co-ordinate Bench, dwelling on Clauses\n\n2.2, 2.3 and 2.4 of the Policy of the State Govt. for compassionate\n\nappointment, which mandates :4WA-756-2019\n\n\n     2-2      e`rd 'kkldh; lsod ds vkfJr ifr@ifRu }kjk ;ksX;rk u\n     j[kus vFkok Lo;a vuqdaik fu;qfDr u ysuk pkgs rks mlds }kjk\n     ukekafdr iq= ;k vfookfgr iq=h A\n     2-3      'kkldh; lsod dh e`R;q ds le; ml ij iw.kZr% vkfJr\n     gksdj mlds lkFk jg jgh gks vFkok mijksDr ik= lnL; u gksus\n     dh fLFkfr esa fo?kok iq=o/kq tks 'kkldh; lsod dh e`R;q ds le;\n     ml ij iw.kr% vkfJr gksdj muds lkFk jg jgh gks A\n     2-4      fnoaxr 'kkldh; lsod dh larku flQZ iq=h@iqf=;ka gks\n     vkSj og fookfgr gks rks fnoaxr 'kkldh; lsod ds vkfJr\n     ifr@ifRu }kjk ukekafdr fookfgr iq=h A\n              ;g Li"V fd;k tkrk gS fd e`rd 'kkldh; lsod ds\n     vkfJr ifr@iRuh thfor gksus ij gh fookfgr iq=h dks vuqdaik\n     fu;qfDr dh ik=rk gksxh A (,sls vuqdaik fu;qfDr ikus okyh iq=h\n     dks 'kkldh; lsod ds vkfJr ifr@ifRuh ds ikyu iks"k.k dh\n     ftEesnkjh dk 'kiFk i= nsuk gksa)- and by relying on the decision by Hon'ble Supreme\n\nCourt in the case of Indian Young Lawyers Association vs The\n\nState of Kerala (Writ Petition (Civil) No.373 of 2006) wherein,\n\nthe restriction upon entry of women by virtue of provisions\n\ncontained under the Kerala Places of Public Worship (Authorization\n\nof Entry) Act, 1965 was questioned on the anvil ofArticles 14, 15,\n\n25and51(A)(e)of the Constitution, held Clause 2.2 and 2.4 as\n\nviolative ofArticle 14, 15, 25and51(A)(e)of the Constitution by\n\nobserving :5WA-756-20197.   The aforesaid paragraphs make it very clear that\n         inspite of glorifying that the women are goddesses, they\n         have been subjected to discrimination time and again. If\n         a male married dependent child can be considered for\n         grant of compassionate appointment, there is no\n         justification in not considering the female married child,\n         who is also totally dependent upon the deceased\n         government servant. The Constitution of India does not\n         provide for such discrimination. Man and woman are to\n         be treated with equality crossing all artificially created\n         barriers and therefore, the policy issued by the State\n         Government to the extent it discriminates between male\n         child and female child specially, Clause 2.2 and 2.4 to\n         the extent the right of the married daughter specially\n         when the deceased government servant was having male\n         children   also,   has   been   curtailed   is   certainly\n         unconstitutional and violative ofArticle 14, 15, 25and51(A)(e)of the Constitution of India. Net result is that\n         the policy to the extent it debars married girl to be\n         considered for grant of compassionate appointment is\n         quashed and the respondent/State is directed to consider\n         the case of the petitioner on merits even though she is\n         married keeping in view policy dated 29.09.2014.6.       Close reading of the order inSmt. Meenakshi(supra) reveals\n\nthat the appointment on compassionate ground has been treated as a\n\nright.6WA-756-20197.   Trite it is that, appointment on compassionate ground is given\n\nsolely on humanitarian grounds with the sole object to provide\n\nimmediate relief to the employee's family to tide over the sudden\n\nfinancial crisis and cannot be claimed as a matter of right.\n\nAppointment based solely on descent is inimical to our\n\nconstitutional scheme, and ordinarily public employment must be\n\nstrictly on the basis of open invitation of applications and\n\ncomparative merit, in consonance withArticles 14and16of the\n\nConstitution of India. No other mode of appointment is permissible.\n\nNevertheless, the concept of compassionate appointment has been\n\nrecognised as an exception to the general rule, carved out in the\n\ninterest of justice, in certain exigencies, by way of a policy of an\n\nemployer, which partakes the character of the service rules. That\n\nbeing so, it needs little emphasis that the scheme or the policy, as\n\nthe case may be, is binding both on the employer and the employee.\n\nBeing an exception, the scheme has to be strictly construed and\n\nconfined only to the purpose it seeks to achieve. (Please see :Bhawani Prasad Sonkar vs Union of India(2011) 4 SCC 209).8.In view whereof, we respectfully disagree with their Lordships\n\ndecision inSmt. Meenakshi(supra) in holding Clauses 2.2 and 2.4\n\nof the Policy of compassionate appointment 2014 as ultra vires.7WA-756-2019\n\n\nTherefore, let the record be placed before Hon'ble Chief Justice for\n\nplacing the matter before Larger Bench for deciding the issue :"Whether     in   the   matter     of   compassionate\n     appointment covered by Policy framed by the State\n     Government wherein, certain class of dependent which\n     includes unmarried daughter, a widowed daughter and a\n     divorced daughter and in case of a deceased Govt.\n     servant who only has daughter, such married daughter\n     who was wholly dependent on Govt. servant subject to\n     she giving her undertaking of bearing responsibility of\n     other dependents of the deceased Govt. servant, Clause\n     2.2 and 2.4 can be said to be violative ofArticle 14, 15,\n     25and51(A)(e)of the Constitution."9.   So far as present case is concerned, reference to larger Bench\n\ndoes not deter us from deciding the matter because in respondent-\n\norganisation, they have their own policy for compassionate\n\nappointment. The Scheme was brought in vogue on 03.06.2013\n\nwhich was amended on 29.12.2014. The Scheme was challenged\n\nbefore Indore Bench of this High Court inSanjay Shrivas vs\n\nChairman-cum-Managing Director, M.P. Paschim Kshetra\n\nVidyut Vitaran Company Ltd.: Writ Petition No.5386/2015\n\ndecided on 13.02.2017, wherein it is held :"9/   The new scheme of compassionate appointment\n     was introduced on 3rd June, 2013 which was amended on8WA-756-2019\n\n\n29/12/14 by incorporating clauses 1.1(a) & 1.1(b)\nconfining benefit of the scheme only to certain category\nof persons in respect of old cases prior to 10/4/12.\nClauses 1.1 & 3.8 relevant for present controversy\nprovide as under:1-1 e/;izns'k if'pe {ks= fo?kqr forj.k daiuh esa dk;Zjr (1)\ne/;izns'k jkT; fo?kqr eaMy ds ,sls dkfeZd tks jkT; 'kklu dh\nvf/klwpuk fnukad 10-04-2012 ds }kjk if'pe {ks= daiuh dks\nvafre :i ls varfjr ,oa vkesfyr gq, gS ,oa daiuh esa gh dk;Zjr gS\n;k (2) if'pe {ks= daiuh }kjk fu;qDr ,oa ftudh lsok;sa daiuh\nds }kjk fu;af=r gSa ,oa daiuh lsokdky esa e`R;q gqbZ gks] ds vkfJrksa\ndks dafMdk 2 ,oa 3 esa of.kZr ik=rk dh 'krksZ ds vuqlkj vuqdaik\nfu;qfDr nh tk;sxhA\n1-1 (v) ,sls dkfeZd] ftudh e`R;q fnukad 15-11-2000 ds i'pkr~\nfdarq 10-04-2012 ds iwoZ e-iz-jk-fo-e.My@daiuh dk dk;Z djrs\nle;] vkdfLed nq?kZVuk] fo?kqr nq?kZVuk] geykojksa }kjk gR;k vFkok\ndk;Z ds nkSjku okgu nq?kZVuk] ds dkj.k gqbZ gks] ds vkfJrksa dks\ndafMdk 2 ,oa 3 esa of.kZr ik=rk dh 'krksZ ds vuqlkj vuqdaik\nfu;qfDr nh tkosxhA\n1-1 (c) nq?kZVuk e`R;q ls vfHkizsr gS] fd daiuh ds dk;Z djrs le;\nvkdfLed nq?kZVuk] fo?kqr nq?kZVuk] geykojksa }kjk gR;k vFkok dk;Z\ndjrs le; okgu nq?kZVuk ds dkj.k gqbZ e`R;qA\n3-8 dafMdk 1 ds n'kkZ;s vuqlkj fnukad 10-04-2012 ds iwoZ          ,oa\nfnukad 15-11-2000 ds i'pkr~ ds nq?kZVuk e`R;q ds izdj.kksa        dks\nNksMdj] 'ks"k vLohd`r] fujkd`r ,oa yafcr izdj.kksa ij fopkj      ugha\nfd;k tk,xkA\n10/ As per clause 1.1(a) the dependents of                       the\nemployee dying in harness due to sudden accident,\nelectrocution, murder or vehicular accident while doing\nthe work of company/board after 15/11/2000 and prior\nto 10/4/12 working in earlier MP State Electricity\nBoard/company          are    eligible     for     compassionate\nappointment and as per clause 3.8 the cases except9WA-756-2019\n\n\nrelating to accidental death after 15/11/2000 and prior to\n10/4/12 either rejected, decided or pending, will not be\nconsidered.11/   Since the father of petitioner had died on account\nof heart attack therefore, in terms of clauses 1.1(a) and\n3.8 of the policy petitioner's case falls outside the\npurview of consideration under the new amended policy\nof 2013.12/   The matter does not end here because the\npetitioner has challenged the new amended policy of\n2013 itself on the ground of being arbitrary and\nunreasonable.13/   The compassionate appointment is an exception to\nthe General Rule of appointment to public office. As a\ngeneral rule appointment to public office is to be made\nstrictly in accordance with mandatory requirement ofArticles 14& 16of the Constitution. The object of\ncompassionate appointment is to remove the financial\nconstraints of the bereaved family on loosing the bread\nearner and to enable the family of deceased employee to\ntide over the sudden crises.14/   Compassionate appointment is not a vested right\n(See.MGB Gramin Bank Vs. Chakrawarti Singhreported in AIR 2013 SC 3365, Umesh Kumar Nagpal\nVs. State of Haryana reported in (1994) 4 SCC 138) .\n15/   Since     it     is     not       a    vested   right    therefore,\nrespondent's         option     to          change    the     policy   of\ncompassionate appointment is not closed.(SeeKuldip10WA-756-2019\n\n\nSingh Vs. Government, NCT Delhireported in AIR\n2006 SC 2652).16/   It is no longer res integra that compassionate\nappointment is to be granted on consideration of several\nfactors such as eligibility, financial condition of the\ncompany etc. as may be provided in the scheme and\nsuch a right is a legal right which is creation of terms of\nthe applicable scheme.17/   Power to frame policy by executive decision or by\nlegislation also includes power to withdraw the same\nunless in the former case, it is done by malafide exercise\nof power or the decision or action taken is in abuse of\npower. The doctrine of legitimate expectation plays no\nrole when the appropriate authority is empowered to\ntake a decision by an executive policy or under law. The\nauthority also has full range of choice within the limits\nof its executive or legislative power. (See:P.T.R. Exports\n(Madras) Pvt. Ltd. And others Vs. Union of India and\nothersreported in (1996) 5 SCC 268).18/   In the present case the amended policy reveals that\nbenefit of compassionate appointment in the cases\nconcerning the period prior to 10/4/2012 is restricted to\nonly certain categories of persons. The justification for\nproviding cut off date as 10/4/12 for such cases is given\nin para 1.1 of the scheme itself. Under Clause 1.1(a) of\nthe amended policy, the new scheme has retrospective\napplication for the period prior to 10/4/2012 only to the\ndependents of the employee dying in harness on account11WA-756-2019\n\n\n                 of accidental death in certain specified eventualities\n                 while doing the work of the Board/company. Such\n                 employees    form      separate   class,     therefore,     the\n                 classification is reasonable having nexus with object\n                 sought to be achieved. The policy is not tailor made to\n                 favour any particular person nor malafides are reflected\n                 and it is also neither whimsical nor has been issued with\n                 ulterior motive. Hence the petitioner's challenge to the\n                 amended policy of 2013 for compassionate appointment\n                 cannot be accepted."10.      The order passed inSanjay Shrivas(supra) is affirmed by the\n\n        Division Bench at Indore in an intra Court appeal : Writ Appeal\n\n        No.270/2017 decided on 23.10.2017.11.      In view whereof, the petitioner being a married daughter and\n\n        not shown to be dependent on her father, we perceive no illegality in\n\n        the impugned order as will call for an interference.12.      Consequently, the appeal is disposed of in above terms. No\n\n        costs.(Sanjay Yadav)                             (Atul Sreedharan)\n                   JUDGE                                          JUDGE\nvinodDigitally signed by VINODVISHWAKARMADate: 2020.01.16 18:40:57+05'30'