Rajendra Prasad Yadav. Vs. Madhya Pradesh Electricity Board. - Court Judgment

Excerpt:
[aftab alam ; r.m. lodha, jj.] the appellant- university on march 1, 1996 issued an advertisement for filling up the posts of deputy registrar and assistant registrar by direct recruitment. the minimum qualification prescribed for appointment as assistant registrar was as under:-respondent no.1, who was an employee of the university, made applications both for the posts of deputy registrar and assistant registrar. respondents 4 and 5 were placed in the select list at ranks iv and v respectively. on the basis of the select list, prepared by the selection committee, respondent nos. 4 and 5 were appointed as assistant registrars. 5. the writ petition was opposed by the university. it was, accordingly, submitted that respondent no.1 was ineligible for appointment to the post of assistant.....1. this is the second visit by the petitioner seeking direction to respondents to appoint him on compassionate ground in lieu of the death of his father mathura prasad yadav employed as line helper and died in harness on 29.12.1995.2. earlier vide w.p. (s) 5856/2005, the direction as sought by the petitioner was that, the respondents be directed to consider the representation and decide the same within three months.3. the respondents in pursuance to direction dated 2.5.2005 in w.p (s) 5856/2005 considered the claim of the petitioner and rejected the same vide order dated 2.9.2005 for the following reasons, viz.:(a) that, the application dated 16.6.2004 submitted by smt. kusum kali w/o late shri mathura prasad yadav was not submitted within one year of the death of her husband and,.....

Judgment:
1. This is the second visit by the petitioner seeking direction to respondents to appoint him on compassionate ground in lieu of the death of his father Mathura Prasad Yadav employed as Line Helper and died in harness on 29.12.1995.

2. Earlier vide W.P. (S) 5856/2005, the direction as sought by the petitioner was that, the respondents be directed to consider the representation and decide the same within three months.

3. The respondents in pursuance to direction dated 2.5.2005 in W.P (S) 5856/2005 considered the claim of the petitioner and rejected the same vide order dated 2.9.2005 for the following reasons, viz.:

(a) that, the application dated 16.6.2004 submitted by Smt. Kusum Kali W/o late Shri Mathura Prasad Yadav was not submitted within one year of the death of her husband and, therefore, it was time barred.

(b) that, due to difficult financial condition, the respondent has stopped giving compassionate appointment as per circular No. 01-07/VI/45 dated 1.9.2000, and

(c) that granting Rs.36,120/-, ex-gratia 12000/- leave encashment Rs.10,522/- etc. have been paid and pension at Rs.1,837/- per month plus DA and Annuity at Rs.300/- per month are being paid to Kusum Kali w/o late Shri Mathura Prasad Yadav.

3. Challenging the order dated 2.9.2005, it is the contention of the petitioner that, the respondents have misconstrued the entire facts. It is contended that after the death of his father on 29.12.1995 the respondents for the first time issued letter on 27.3.1997 informing the petitioner's mother that she has been chosen to be appointed on compassionate ground. It is urged that the formalities required to be submitted by petitioner's mother was fulfilled; however, no appointment was given. It is further contended that later on in the year 2004, petitioner's mother tendered consent in his favour, in pursuance whereof and also as per letter dated 22.6.2004 petitioner submitted the application on 19.8.2004. It is contended that since no decision was taken, the petitioner filed W.P. No. 5856/2005. It is urged that despite of the direction by this Court, the respondents have not considered the claim in right perspective and rejected it on the grounds no germane to the facts. The respondents on their turn have denied all the allegations. It is contended that, the appointment on compassionate ground cannot be claimed as a matter of right and since the petitioner belatedly preferred the application for compassionate appointment, the same was rightly rejected. It is argued (though not said in return) that the family of the deceased Mathura Prasad Yadav who died in harness, was not put to indigency and, therefore, the offer made to petitioner's mother was not pursued by 3her. It is urged that the family having survived for years, now not an indigent and, therefore, not entitled for appointment on compassionate ground. Considered the submissions at length. The proposition that the appointment on compassionate ground is not a vested right is no more res integra. Full Bench of this Court in Bank of Maharashtra and another v. Manoj Kumar Deharia and another [2010 (3) MPLJ 213] has held:

"33. In view of the foregoing discussion, we proceed to record our conclusions as follows:

(a) That grant of compassionate appointment is not a vested legal right. It is only a benefit granted in certain circumstances dehors the normal rule of appointment and when the employer has a right to evolve an appropriate policy after considering various factors for granting such a benefit, the considerations have to be made in accordance with the policy that is prevailing at that point of time.

(b) When it is held that compassionate appointment is not a vested right and when grant of such appointment is governed by the Rules and Policies prevailing in an establishment, then consideration as per the Rules existing is required to be made and consideration on the basis of a Policy, which is given up by the employer and which has no application at that point of time cannot be insisted upon.

(c) Having regard to the exceptional nature of this appointment and taking note of the fact that it is granted under a special Scheme carved out dehors the normal mode of recruitment, the same has to be governed as per the Policies or Provisions governing such appointment prevalent at a particular point of time when consideration is to be made, and not on the basis of a Policy which was in vogue and has been given up by the employer due to changed circumstances.

(d) As compassionate appointment is granted by carving out a special Scheme contrary to the normal mode of recruitment and when the employer or the government is at liberty to evolve a Scheme for granting such appointment from time to time, then the consideration for appointment has to be made in accordance with the Scheme or Policy that is in existence.

(e) The decision rendered in T. Swamy Dass (supra) and Heeralal Baria (supra) do not lay down the correct law and are hereby overruled.

(f) Any right flowing from a settlement between the employer and employees' union or association has to be in a different compartment.

(g) It would be the obligation of the employer to deal with the application with immediacy and promptitude so that the grievance of a family in distress gets a fair treatment in accordance with law.

4. Similarly, trite it is that in case of the family of an employee who dies in harness, having survived for years are not indigent as would require an urgent financial support. In this context regard can be had of the judgment in Virendra Bahadur Singh v. Union of India and others [2004 (2) MPLJ 13) wherein the Division Bench of this Court observed:

"5. Even on merits, petitioner is not entitled to any relief. Deceased died on 17-2-1990 and the family has survived for more than 12 years. It is not pointed out how, in the face of statement by respondents, the family is still in financial distress. Object of compassionate appointment is to enable the family to tide over the sudden crisis and relieving the family from financial distress due to the death of the sole bread earner of the family. Therefore, this type of appointment cannot be offered. As a matter of course, only deserving cases have to be found and offered compassionate appointments, more particularly when respondents have kept only 5% of the vacancies falling under direct recruitment quota in Group "C" and "D" posts for compassionate appointment. Decision of the Apex Court on which reliance is placed by the petitioner is of no assistance to advance the submission raised by him."

5. The appointment on compassionate ground is not a right but is being provided in a case where the Government Servant dies in harness leaving behind his family in a starving condition.

6. Thus, keeping in view the above facts, this Court finds no discrepancy in the order dated 2.9.2005 . The petition is thus dismissed. No costs.