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IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR
FULL BENCH
Dipak Misra, K.K. Lahoti and Rajendra Menon, JJ.
Bank of Maharashtra and Anr.
Vs.
Manoj Kumar Deharia and Anr.
W.A. No. 1007/2007
Decided On: 27.10.2009
Compassionate Appointment - Interpretation of Policy - [T. Swamy Dass v. Union of India and Ors. 2002 (2) MPHT 320] - The court discussed the interpretation of the policy governing compassionate appointments in the case of a deceased employee and the relevant legal principles. The court emphasized that compassionate appointment is an exception to the normal rule for appointment to public service and is based on certain exceptions carved out from the general rule of appointment. The court highlighted that the object of granting such an appointment is to give succor to the family, which has been suddenly plunged into penury due to the untimely death of the sole breadwinner. The court also emphasized that the object of providing such an ameliorating relief should not be taken as opening an alternative mode of recruitment to public service. The court further stated that the appointment on compassionate ground is not another source of recruitment but merely an exception to the requirement taking into consideration the fact of the death of the employee while in service leaving his family without any means of livelihood. The court also highlighted that appointment on compassionate ground cannot be claimed as a matter of right and that the scheme for compassionate employment cannot be made applicable to all types of posts irrespective of the nature of service rendered by the deceased employee. The court emphasized that the appointment on compassionate ground is given only for meeting the immediate hardship which is faced by the family by reason of the death of the bread earner. The court concluded that the consideration for appointment has to be made in accordance with the scheme or policy that is in existence at the time of consideration and not on the basis of a policy which was in existence at the time when the employee concerned had expired or the claim is made for appointment.
Fact of the Case:
The Respondent, Manoj Kumar Deharia, filed a writ petition claiming compassionate appointment after the death of his father, a deceased employee. The Appellant-bank rejected his claim based on a new policy that came into force after the death of the employee. The Respondent argued that his application should have been processed and decided in accordance with the conditions incorporated in the old policy. The writ Court 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 remanded for fresh consideration within four months. The present appeal was filed by the Bank assailing the said order passed by the learned Single Judge in the writ petition. The Division Bench referred the matter for consideration by a Full Bench.
Finding of the Court:
The court found that the consideration for appointment has to be made in accordance with the scheme or policy that is in existence at the time of consideration and not on the basis of a policy which was in existence at the time when the employee concerned had expired or the claim is made for appointment.
Issues: The main issue was the interpretation of the policy governing compassionate appointments and whether the consideration for appointment should be made in accordance with the scheme or policy that is in existence at the time of consideration or on the basis of a policy which was in existence at the time when the employee concerned had expired or the claim is made for appointment.
Ratio Decidendi: The court held that the consideration for appointment has to be made in accordance with the scheme or policy that is in existence at the time of consideration and not on the basis of a policy which was in existence at the time when the employee concerned had expired or the claim is made for appointment.
Final Decision: The court overruled the decisions rendered in T. Swamy Dass and Heeralal Baria and concluded that the consideration for appointment has to be made in accordance with the scheme or policy that is in existence at the time of consideration and not on the basis of a policy which was in existence at the time when the employee concerned had expired or the claim is made for appointment.
Rajendra Menon, J.
1. In the light of the decision rendered in T. Swamy Dass v. Union of India and Ors. 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 Appellant 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 Respondent's 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 sen ice which contemplates appointment on merit through open invitation. Grant of compassionate appointment to a family member of the deceased employee is based on certain exceptions carved out from the general r
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