The main legal point established in the judgment is that Clause 2.2 of the policy of compassionate appointment was violative of the Constitution as it deprived married daughters from the right of consideration for compassionate appointment.

JUDGMENT

Sujoy Paul, J. - This Larger Bench is called upon to decide the following issue:

'Whether in the matter of compassionate appointment covered by Policy framed by the State Government wherein, certain class of dependent which includes unmarried daughter a widowed daughter and a divorced daughter and in case of a deceased Govt. servant who only has daughter, such married daughter who was wholly dependent on Govt. servant subject to she giving her undertaking of bearing responsibility of other dependents of the deceased Govt. servant, Clause 2.2 and 2.4 can be said to be violative of Article 14, 15, 25 and 51A (e) of the Constitution.'

2 . It is profitable to note the background of the reference. W.P. No.9631/2017 ( Meenakshi Dubey vs. Madhya Pradesh Poorv Kshetra Vidyut Vitran Company Limited and others ) was filed by the appellant/petitioner, the married daughter of deceased employee claiming compassionate appointment. The writ court by order dated 08.01.2019 dismissed the petition by holding that married woman does not deserve consideration for compassionate appointment as per the policy of the Company. Aggrieved, she filed WA No.756/2019 which was decided on 08.01.2020 Pertinently, the petitioner therein did not challenge the constitutionality of any clause of the policy of compassionate appointment framed by the employer namely; Madhya Pradesh Poorva Kshetra Vidyut Vitran Company Limited ( hereinafter called as 'Electricity Company' ) . It appears that during the course of hearing of WA No.756/2019, a Division Bench judgment of Indore Bench in the case of Smt. Meenakshi vs. State of M.P. and others, W.P. No.3769/2017 decided on 09.10.2018, was cited by the appellant. In this WP filed before Indore Bench, vires of Clause 2.2, 2.3 and 2.4 of the policy of the State Government were called in question. The Indore Bench opined that Clause 2.2 and 2.4 to the extent right of married daughter specially when the deceased government servant was having male children also, has been curtailed, is certainly unconstitutional and violative of Article 14, 15, 25 and 51A (e) of the Constitution of India. Net result is that the policy to the extent it debars married woman from consideration for compassionate appointment is quashed and the respondent/State is directed to consider the case of the petitioner on merits.

3. The Division Bench in WA No.756/2019 recorded its disagreement with the decision of Indore Bench in Smt. Meenakshi (Supra) in holding Clause 2.2 and 2.4 of the policy as ultra vires . The Bench reproduced the relevant policy which was applicable to the Electricity Company. It was observed that the Indore Bench in Smt. Meenakshi (Supra) treated the appointment on compassionate ground as a right whereas such appointments are given solely on humanitarian grounds with the sole object to provide immediate relief to employee's family to tide over the sudden financial crises and such claim cannot be raised as a matter of right. Appointment based solely on descent is inimical to our constitutional scheme, and ordinarily public employment must be given strictly on the basis of open invitation of applications and comparative merit, in consonance with Article 14 and 16 of the Constitution of India. No other mode of appointment is permissible. The concept of compassionate appointment is recognised as an exception to the general rule, carved out in the interest of justice, in certain exigencies, by way of a policy of an employer, which partakes the character of the Service Rules. In this backdrop, it was observed that the policy or scheme, as the case may be, is binding both on the employer and the employee. Being an exception, the scheme has to be strictly construed and confined only to the purpose it seeks to achieve. While observing so, the Division Bench thought it proper to refer the issue for determination before the Larger Bench.

4. The Division Bench did not keep WA No.756/2019 pending and disposed it of by holding that appell