The main legal point established is that employment in the Indian Army should be distinguished from regular government service when determining eligibility for compassionate appointment.

ORDER

The State of Madhya Pradesh has filed this appeal against the order dated 20.08.2018 passed in W.P. No.5436/2017 whereby Writ Court has directed State to consider the case of the writ petitioner for grant of compassionate appointment on merit ignoring clause 4.1 of the policy dated 29.09.2014.

The facts of the case in short are as under:

1. Late Ishwarsingh Rajawat working on the post of peon in the office of collector Ujjain. He died on 12.09.2016 due to cardiac arrest while in employment. The writ petitioner being a second son dependent of income his father became eligible to claim a compassionate appointment after the death of his father. He submitted an application in prescribed form on 02.10.2016 in the Office of Collector claiming compassionate appointment on the post of Assistant Grade -III by virtue of his educational qualification B.Com. M.A. and A.D.C.A. In support of the application, he has submitted the affidavit of his mother Smt. Padma Kunwar to the effect that she has no source of income. Her elder son Jitendra Rajawat is working in the Indian Army since 2008 has also given an affidavit that he is not in a position to support the family financially as he has been living separately with his wife and not providing any financial aid to the father, mother and writ petitioner.

2. Vide letter dated 18.10.2016, the Collector Ujjain has sought direction from Principal Secretary, GAD of Madhya Pradesh for grant of compassionate appointment to the petitioner in view the condition No.4.1 of the policy dated 29.09.2014. Vide letter dated 10.11.2016, the Deputy Secretary of GAD of Madhya Pradesh has held that in view of clause 4.1, the writ petitioner is not entitled to get the compassionate appointment. Hence, the petitioner filed a writ petition, and it came to be allowed vide order dated 20.08.2018 on the ground that the employment in the Indian Army is a tenure appointment. The Writ Court has held that the brother of the writ petitioner after joining the Indian Army has been living separately and for which the writ petitioner cannot be made to suffer.

3. Being aggrieved by the above direction given by the writ court the State of Madhya Pradesh has preferred this Writ Appeal on the ground that since the elder brother of the writ petitioner is already in employment of Indian Army, which makes the petitioner ineligible to claim the compassionate appointment by virtue of condition No.4.1 of the policy dated 29.09.2014. it is further submitted by the learned Government Advocate for the appellant that the language of clause 4.1 is very clear, no other interpretation can be given. Even otherwise the policy of compassionate appointment is only a policy framed by the Government has no statutory force, hence, no writ of mandamus can be issued to the State for providing employment. Shri Garg learned Government Advocate has placed reliance on the judgment passed by the Division Bench of Court in the case of Prajesh Vs. State of M.P. in which clause 4.1 of the aforesaid policy has been examined and held that the dependent of the deceased's family is not entitled to a compassionate appointment if one of the family members is in Government Service, even if he is not supporting the other dependent, therefore, the order passed by Writ Court runs contrary to the aforesaid judgment, hence, liable to be set aside.

4. Per contra Shri A.K. Sethi, learned Senior Counsel appearing on behalf of the writ petitioner has argued that the Hon'ble Writ Court has rightly held that the employment in the Indian Army is different from the service of State Government as well as Central Government. In the Indian Army, there is no uniform age of retirement at the age of 60 or 62 years. The brother of the petitioner was initially appointed on the post of Soldier and now he has been promoted to the post of Naik for which retirement age is 47 years and he would be retiring from service on 31.12.2030. In clause 4.1, if any member is in employment in services of