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Judgment
Per: Vivek Rusia, Acting Chief Justice
Appellants- Company have filed this writ appeal under Section 2(1) of the Madhya Pradesh Uchcha Nayayalay (Khand Nyay Peeth Ko Appeal) Adhiniyam, 2005 against the order dated 30/10/2025 passed by the Writ Court in Writ Petition No. 17593 of 2020, whereby the writ petition filed by the respondent (writ petitioner) was disposed of with a direction to the appellants-authority to decide the representation of the respondent (writ petitioner) regarding compassionate appointment and ex gratia payment, based on the policy prevalent at the time of death of the deceased employee, who passed away on 28.03.2016.
Facts of the case, in short, are that the father of writ petitioner (herein respondent) was working as Assistant Lineman in the appellants/Company and died on 28/03/2016. On 15/11/2016, the elder son of the deceased submitted an application for grant of compassionate appointment, but the same was rejected on 14/02/2017, as he was not found qualified to hold the post of Class-IV in the Company. The Company decided to grant him Rs. 1,00,000/- as ex gratia compensation to the family, but the family declined to accept the said amount. The elder son of the deceased filed W.P. No. 4325/2017 challenging the order dated 14/02/2017. However, he withdrew the writ petition on 24/01/2020 without assigning any reason.
The writ petitioner (respondent herein) being the second son and possessing the qualification of Higher Secondary School Examination and ITI from a recognized Institute and a degree of Bachelor of Arts, submitted an application for grant of compassionate appointment, but the same was rejected under Clause 3.8 of the policy of Compassionate Appointment, 2018. The writ petitioner approached the writ Court by way of a writ petition on the ground that, in view of the law laid down by the Apex Court in the case of State of M.P. Vs. Ashish Awasthi, reported in (2022) 2 SCC 157, the application should be considered under the policy prevailing at the time of death of his father in the year 2016. The writ petitioner is possessing all the qualifications to get the post of Class-III, i.e., Testing Assistant in the Company, but his claim has wrongly been rejected. The said writ petition was opposed by the respondents therein (appellants herein) by placing reliance on the judgment passed by the Apex Court in the case of Ku. Varsha Kushwah Vs. Madhya Kshetra Vidyut Vitran Co. Ltd. and others, decided on 04.03.2025 in W.P. No. 11258/2019 . The Writ Court considered the various judgments passed by the Apex Court and came to the conclusion that the policy which was in force on the date of death of the employee would be applicable, for the reason that the date of death is fixed, but the date of the policy keeps on changing. The Writ Court has rightly directed that the application be considered under the policy prevailing at the time of death, i.e., 28/03/2016.
We hereby make it clear that the appellant shall not reject the application on the ground that an application submitted by brother of the respondent had already been rejected.
The purpose of providing compassionate appointment is to give another source of income by way of appointment of one of the dependents in the same department, subject to fulfilling the eligibility criteria as per policy for compassionate appointment or prevailing Recruitment Rules. The Competent Authority of the employer department is required to examine that the dependent who has applied for compassion appointment is fulfilling the minimum qualification for the post and question and if it concludes that such dependent is not fulfilling the qualification or not suitable for the post, then it is incumbent upon the competent officer to call upon the family of the deceased and advise them to submit an application by another dependent who fulfil the qualification , rather the closing the case on technical ground. While dealing with the appointment on compassionate ground, the actual compassion and sensitivity should be shown by the competent authority rather than rigid and technical attitude. Most of the time the dependence of the deceased do not get correct advice for applying under the policy of compassionate appointment; then, in such cases, the department should take responsibility to give proper advice as to how the eligible dependent can apply to get the benefit of the policy.
It is not expected from all family members of the dependent to apply together, and whosoever is found suitable would be considered for appointment. A similar situation came before the Full Bench High Court of Bombay in the matter of Kalpana Wd/o. Vilas Taram and another v. State of Maharashtra reported in 2024 SCC OnLine Bom 4258.The Full Bench has held that substitution of one dependent by another in a compassionate appointment claim is permissible and does not constitute a fresh application, as the family seeks only one appointment. Where the original applicant was not appointed, substitution does not create a second claim and may be necessary to fulfil the scheme's purpose. The relevant paras are produced below:
''23. Thus, it is evident that, if a family member of the deceased/incapacitated employee applies for substitution of his name with another family member, it cannot be treated as a fresh application or subsequent application or it cannot be implied that more than one member is seeking compassionate appointment.
24.The scheme permits compassionate appointment to one eligible legal heir of the deceased/incapacitated employee with an object to enable the family to tide over the sudden financial crisis. In the circumstances, if substitution is permitted, it would amount to replacement of name by another name. As substitution does not amount to making of a fresh application or staking a claim by more than one legal heir of the deceased, it cannot be said that substitution would run counter to the purpose and object of compassionate appointment.
25.From the purpose and object of the compassionate appointment, it is evident that, some source of livelihood is to be provided to any one member of the family to make both ends meet. In case of substitution, the name of another member would be substituted in the wait list in place of earlier member. In that eventuality also the employment will be provided to only one member, as per policy. Therefore, it cannot be said that, substitution would defeat the object of compassionate appointment.
26.Furthermore, keeping in mind the object and purpose of the appointment on compassionate ground, that is to provide succour to the family, it does not matter whether the employment is provided to X member of the family or Y member of the family as long as the scheme permits to provide employment to any one member of the family. If the substitution is permitted, the only change which will occur is that the name of 'X' will be replaced by 'Y' member and nothing beyond that.
27.It is for the family to decide which member of the family should seek the employment on behalf of the family. Therefore, a rigid approach to not allow any substitution to take place is not an appropriate measure of providing succour and help to the family of the deceased government servant, which is the very object and rationale behind the scheme.''
In view of the aforesaid facts and the legal position, the writ appeal deserves to be disposed of without entering into the merits of the claim, as the appellant-Company, instead of complying with the direction of the Writ Court and considering the representation of the respondent/petitioner in accordance with the policy prevailing on the date of death of the deceased employee, has approached this Court by way of the present writ appeal. The competent authority was required to first consider the respondent’s representation in terms of the order passed by the Writ Court. The earlier rejection of the application submitted by the respondent’s elder brother, by itself, cannot be a ground to reject the respondent’s claim, particularly when the respondent is seeking consideration as another eligible dependent of the same deceased employee and the family seeks only one compassionate appointment.
Accordingly, the writ appeal may be disposed of with a direction to the appellant-Company/competent authority to consider and decide the representation of the respondent/petitioner strictly in accordance with the compassionate appointment policy prevailing on 28/03/2016 and the applicable Recruitment Rules, without rejecting the same merely on the ground that the application submitted by his elder brother had earlier been rejected. The competent authority shall consider the eligibility of the respondent independently and pass a reasoned and speaking order within a stipulated period. The writ appeal is accordingly stand disposed of. No order as to costs.