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HIGH COURT OF MADHYA PRADESH
Mr. Justice Dipak Misra, Mr. Justice K.K. Lahoti and Mr. Justice Rajendra Menon
BANK OF MAHARASHTRA
Versus
MANOJ KUMAR DEHARIA
*W.A. No. 1007/2007 Of
Decided On : Oct 27,2009
Employment to Government and other public services should be open to all eligible candidates and by open competition on merit.
This is in consonance with the mandate of Articles 14 and 16 of the Constitution. This general rule can be departed from only when compelling circumstances demand and one such circumstance is the death of the sole breadwinner of a family. (1997)8 SCC 85, (1998) 5 SCC 192, (1996) 5 SCC 108, (1994) 2 SCC 718, (1994) 4 SCC 138, (2006) 5 SCC 766 and (2007) 6 SCC 162 followed. (1996) 8 SCC 23, 1996 (1) SLR 118 and 1995 Lab.IC 2175 referred to. [Para 10
Held: Once it is held that it is an exception to the General Rule and is granted in accordance with the scheme or rules formulated, then considerations to be made for grant of the appointment would be governed by the provision of the rules or the scheme and in that view of the matter when the rules and the guidelines playa dominant role, considerations have to be made in accordance with the rules and scheme which are applicable at the time of grant. As the. entitlement, for compassionate appointment is to be evaluated in accordance with the schemes and rules formulated in that regard, there cannot be any shadow of doubt that consideration and evaluation are required to be made in accordance to the existing policies and not on the basis of a policy or scheme, which has become extinct. AIR 1981 SC 711 followed. W.A. (MD) No.411/2006 and W.A.M.P. (MD) No. 1/2006 dated January 8, 2007 relied on. 1999(3) SLR 81 and (2000)6 SCC 493 distinguished. 2002(I) JLJ 350 overruled. [Para 31
(2) Precedent -- always not appropriate -- even a little factual difference -- can change entire finding. (2004) 8 SCC 579, (2008) 1 SCC 494, (2008) 9 SCC 284 and 1996 AIR SCW 4020 followed. [Para 29
Per Lahoti, J. (dissenting) --
Civil Services -- compassionate appointment -- not a matter of right -- only an exception to the rule for public employment -- must be made according to the policy prevailing at the time of filing the application -because only this policy gave the cause to seek such appointment -moreover, person seeking such appointment -- cannot be deprived of his right because of delay in considering his application.
Held: The object of providing such ameliorating relief cannot• be treated as an alternative mode of recruitment to public employment, but can be claimed only by such person if there is some policy/rule/order of the Government providing such compassionate appointment. The right for consideration flows from such policy and in absence of such policy, no appointment can be made.
Once such application is filed by a person claiming such compassionate appointment on the basis of the policy prevailing on the date of application, he has legitimate expectation for consideration of such application on the basis of policy which gave him cause to seek such compassionate appointment. (1994)4 302 Bank of Maharashtra v. Manoj Kumar Deharia [2010(3) SCC 138, (2007) 9 SCC 571, (2008) 13 SCC 730 and (2006) 12 SCC 44 followed. 2002(1) JLJ 350 and 2008(1) MPLJ 492 affirmed. [Paras 37 & 38
Apart from this, when a person filed an application for compassionate appointment, who was eligible on the date when he moved an application and his case was not considered by the employer for a period during which the aforesaid policy/scheme remained in force, subsequently cannot be deprived his right for consideration merely on the ground that at subsequent stage when the application was considered, earlier policy was substituted by another policy under which such person was not entitled even for consideration. [Para 44
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Rajendra Menon, J.
( 1. ) The Order of the Court was delivered by :-In the light of the decision rendered in T. Swamy Dass Vs. Union of India and Others, 2002 (2) MPHT 320, and the perceptual shift with regard to compassionate appointment and the recurring problem that is faced during the process of adjudication, a Division Bench to put the controversy to rest, referred the following singular question with alternatives to be addressed by a larger Bench: "In a case of compassionate appointment pursuant to the death of a deceased employee, which policy of the, Government is to be applied:- 1. The policy prevailing at the time of the death of employee? OR
( 2. ) The policy prevailing at the time of application for compassionate appointment? OR
( 3. ) The policy prevailing at the time of consideration of the application for compassionate appointment?" 2. Facts, in brief, are that the respondent, Manoj Kumar Deharia, filed a writ petition before this Court claiming compassionate appointment and seeking quashment of an order-dated 31.5.2004 passed by the appellant-bank, rejecting his claim. It was the case of the respondent that his father, Late Lochan Singh Deharia, while working as a clerk, died in harness on 1.11.1996. On 28.11.1996, he submitted an application seeking compassionate appointment to the appellant. The Branch Manager of the bank concerned forwarded the said application to the Regional Office on 19.2.1997. When the application was submitted on 28.11.1996, the Scheme for compassionate appointment in the Bank was in accord with the Circular/Policy dated 25.1.1989. However, with effect from 27.2.1997 a New-Policy came into existence and by the time the respondents application, forwarded on 19.2.1997 by the Branch Manager reached the Regional Office, the New Policy dated 27.2.1997 had come into force. Accordingly, the appellant Bank considered the claim of the respondent for appointment on compassionate grounds in accordance with the New Policy and finding him ineligible, rejected his claim by the order impugned in the writ petition dated 31.5.2004. 3. It was the case of the respondent before the writ court that his father had expired on 1.11.1996, he had submitted his application on 28.11.1996 and the application was forwarded by the Branch Manager on 19.2.1997. That being so, it was submitted, his application should have been processed and decided in accordance with the conditions incorporated in the Circular/Policy dated 25.1.1989 and in considering his claim in accordance to the New Policy, which came into effect from 27.2.1997, the appellants have committed grave error and, therefore, interference in the matter was warranted. The writ court vide order-dated 20.3.2007, passed in W.P.(S) No.7038/2004, held that the claim of the respondent cannot be rejected on the basis of the new policy, which was not in vogue when the application was submitted or when his father had expired, and should have been decided on merits as per the old policy, and accordingly remanded for fresh consideration within four months. The present appeal under section 2(1) of the M.P. Uchcha Nyayalaya (Khand Nyay Peeth Ko Appeal) Adhiniyam, 2005 was filed by the Bank assailing the said order passed by the learned Single Judge in the writ petition. While hearing the appeal on 14.1.2008, the Division Bench framed the aforesaid questions of law and referred the matter for consideration by a Full Bench. Thus, the matter has been placed before us.
( 4. ) Before adverting to consider the questions referred, it is thought appropriate to consider the legal principles governing grant of compassionate appointment, rights accruing to a person claiming compassionate appointment and the manner in which such a claim is to be decided.
( 5. ) Compassionate appointment is an exception to the normal rule for appointment to public service which contemplates appointment on merit through open invitation. Grant of compassionate appointment to a family member of the d
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