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S.C. Sharma, J.
Rahul Singh v. State of M.P. and others
Writ Petition No. 7705 of 2003 (Gwalior); Decided on 15.10.2008.
(2) Constitution of India -- Art.162 -- Executive Instructions of Compassionate Appointment dated 10.5.2000 and 22.1.2007 -- son born of second marriage of Government servant -- can claim compassionate appointment.
Keeping in view law laid down by the apex Court in the aforesaid case and also scheme of grant of compassionate appointment which provides that children of a deceased Government servant shall be entitled for grant of compassionate appointment subject to conditions enumerated in the policy relating to grant of compassionate appointment there remains no doubt that children born out of second marriage even though the deceased employee is a Hindu and has contracted second marriage during subsistence of his first marriage shall be entitled for consideration for grant of compassionate appointment. In the present case it is not in dispute that the petitioner is son of a deceased Government servant though he was born out of second marriage during the subsistence of the first marriage and the first wife has also given an affidavit that she does not have any objection in case the petitioner is appointed on compassionate ground and therefore, there appears to be no justification on the part of the respondents in cancelling the appointment already granted to the petitioner. (2002)2 see 431 and 2008(3) JLJ 196 (Se) followed. [Para 9
(3) Natural Justice -- principles -- should be followed when first order in favour of a party is recalled for passing adverse order. (1999)8 SCC 378 and (2007) 1 SCC 331 followed. [Paras 6 & 7
¼1½ yksd lsod && vuqdaik fu;qfDr && yksd lsod ds nwljs fookg ls tUe ysus okyk iq= && nkok dj ldrk gS] Hkys&gh nwljk fookg dk;e jgrs gq, gqvk gks && og e`r lsok dk iq= vkSj mldk fof/kd okfjl gSA ¼2½ Hkkjr dk lafo/kku && vuq-162 && vuqdaik fu;qfDr dh iz‘kklfud vuqns‘k fnukad 10-5-2000 rFkk 22-1-2007 && yksd lsod dk nwljs fookg ls tUe ysus okyk iq= && vuqdaik fu;qfDr dk nkok dj ldrk gSA iwoksZDr ekeys esa loksZPp U;k;ky; }kjk vf/kdfFkr fof/k dks vkSj vuqdaik fu;qfDr dh ;kstuk dks Hkh n`f"V esa j[krs gq, ftlesa vuqdaik fu;qfDr iznku jdus laca/kh uhfr esa izxf.kr ‘krksZa ds v/;/khu e`r ljdkjh lsod dh larkuksa dks vuqdaik fu;qfDr iznku dh tkuk vko‘;d :i ls micaf/kr gS] blesa dksbZ lansg ugha jg tkrk fd nwljs fookg ls tUe ysus okyh larkuksa dh vuqdaik fu;qfDr ij fopkj fd;k tk,xk] Hkys&gh deZpkjh fganw Fkk vkSj igyk fookg dk;e j[krs gq, Hkh mlus nwljk fookg fd;k FkkA izLrqr ekeys esa ;g fooknxr ugha gS fd ;kph e`r ljdkjh deZpkjh dk iq= gS] Hkys&gh mlus igyk fookg dk;e j[krs gq, Hkh nwljs fookg ls tUe fy;k Fkk vkSj igyh iRuh us Hkh ‘kiFki= fn;k gS fd ml fLFkfr esa mls dksbZ vkifRrRr ugha gS ;fn ;kph dks vuqdaik ds vk/kkj ij fu;qDr fd;k tkrk gS] blfy,] ;kph dks igys&gh iznRr vuqdaik fu;qfDr jn~n fd;k tkuk izR;{khx.k dk U;k;ksfpr izrhr ugha gksrkA ¼2002½2 ,l lh lh 431 rFkk 2008¼3½ ts ,y ts 196 ¼mPpre U;k-½ vuqlfjrA ¼iSjk 9½ ¼3½ uSlfxZd U;k; && fl)kar && vuqlj.k fd;k gh tkuk pkfg, tc fdlh i{kdkj ds i{k esa gksus ds Ik‘pkr~ igyk vkns‘k] izfrdwy vkns‘k ikfjr fd, tkus ds fy, iqu% cqyk;k tkrk gSA ¼1999½8 ,l lh lh 378 rFkk ¼2007½1 ,l lh lh 331 vuqlfjrA ¼iSjk 6 ,oa 7½
1. The petitioner before this Court is a Child Constable working at 5th Battalion, Special Armed Force, Morena has filed this present writ petition through his guardian mother Munnidevi assailing the legality and validity of the order dated 6.11.2002 by which the compassionate appointment granted to the petitioner has been cancelled.
2. The contention of the petitioner is that the father of the petitioner was serving the Special Armed Force and died in harness while in service. The petitioner has submitted an application for grant of compassionate appointment and the competent authority by an order dated 29.8.2001 has granted compassionate appointment to the petitioner as Child Constable. It is also pertinent to note that petitioner while submitting an application for grant of compassionate appointment on 6.8.1997 has categorically informed the Deputy Inspector General SAF Gwalior tha the is son of Smt.Munnidevi who is second wife of the deceased Government servant namely Shri Rishav Dev Singh. An affidavit of Smt.Karnlesh first wife of Shri Rishav Dev Singh is also on record wherein she has stated that the petitioner's mother was married to late Shri Rishav Dev Singh and she does not have any objection in case compassionate appointment is granted to the petitioner. This fact was very much withint the knowledge of authorities and the Commandant, 5th Batalion SAF Morena has acknowledged this fact in his letter dated 6.8.1997 thereafter, the matter was again examined and on 29.8.1997 the petitioner was informed that his name has been kept in waiting list at serial No.32A and as per his turn, he will be granted compassionate appointment, thereafter, the petitioner was medically examined and finally an order has been passed granting him compassionate appointment on 29.8.2001 appointing the petitioner as Child Constable. The petitioner is aggrieved by the order dated 6.11.2002 by which the compassionate appointment granted to him has been withdrawn. The contention of the petitioner is that the aforesaid order has been passed in violation of the principle of natural justice and fair play and there is no dispute that he is son of deceased Government servant.
3. The respondent State has filed a detailed reply and it has been stated in the reply that the name of the petitioner does not find place in the service book of the deceased Government servant. Moreover, the mother of the petitioner is second wife of the deceased Government servant and therefore, the petitioner cannot be treated to be son of the deceased Government servant. The respondents have therefore, justified their action in cancelling the compassionate appointment granted to the petitioner.The respondents at the same time have admitted that this information regarding second wife was very much disclosed by the petitioner while submitting an application for grant of compassionate appointment. The respondents have further stated that Smt.Munnidevi, mother of the
petitioner is not a legally wedded wife and the name of petitioner and his mother has not been entered in the service book of the deceased Government servant, therefore, the order of compassionate appointment has rightly been withdrawn.
4. In the present case succession certificate has also been brought on record wherein the Court of competent jurisdiction has directed the payment of dues of the deceased Government servant to the petitioner, petitioner's mother as well as first wife of deceased Government servant being the legal heirs.
5. Heard learned counsel for the parties at length and perused the record.
6. In the present case the petitioner was appointed by an order dated 29.8.2001 and services have been put to an end by an order dated 6.11.2002. This Court while issuing notice to the respondents has granted an interim order on 14.11.2002 and the petitioner is very much continuing in service till date. There is no other counter claim nor any person stating himself to be legal heir of the deceased Governme
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