Motilal Balmiki vs State of M.P. and Others

Sujoy Paul, J.—By filing this petition, the petitioner stated that his father was a Safaikarmi/sweeper and died in harness on 27.11.2009. The petitioner submitted an application for grant of compassionate appointment with relevant documents (Annexure P-6). He submitted representation to Chief Municipal Officer (CMO) Narwar, stating that his father died in harness and, therefore, the application be allowed and he be given appointment. Similar representation was preferred to the Collector, Shivpuri for grant of compassionate appointment in the light of para 3 of policy dated 21.5.2002 issued by Urban Administration and Development Department. The case of the petitioner is basically based on this circular, which is specifically issued on the demand of the unions of sweepers, wherein the Government took following decision:-

On 25.2.2010, the Project Officer of Urban Administration and Development Department issued a letter to the CMO, Narwar directing him to take action in accordance with law. This letter, Annexure P-10, shows that it was made clear by the Urban Development Tribunal, Shivpuri that CMO is competent to issue appointment order. It is stated that the appointment can be made as per the policy in vogue. Thereafter, the petitioner again submitted a representation, pursuant to which respondent No. 5 wrote a letter seeking guidance from the Urban Administration and Development Department. This letter seeking a direction was replied by Annexure P-3. The relevant portion of this letter reads as under:-

Another letter dated 21.5.2010 (Annexure P-2) is issued by Urban Development Department, Gwalior directing the CMO Narwar to follow the policy dated 21.5.2002 (supra) and take action for issuance of appointment order. By order dated 21.5.2010 Nagar Panchayat rejected the claim of the petitioner on the basis of Clause 4.1 of the policy dated 18.8.2008.

Thus, the pivotal question is whether the action of the respondent Nagar Panchayat is correct and legal ?

In the opinion of this Court, the policy dated 21.5.2002 issued by the Urban Administration and Development Department, Mantralaya, Bhopal is a specific policy which is issued for giving benefits to Safaikarmis, whereas the subsequent policy dated 18.8.2008 is a general policy issued by the General Administration Department (GAD). By policy of GAD, the policy of 21.5.2002 issued by Urban Administration and Development Department is not cancelled, superseded, modified or annulled. The Urban Administration Department in explicit terms made it clear that the policy of 21.5.2002 is still in force and needs to be implemented. This direction was issued by the Urban Administration Department on the request made by the Nagar Panchayat.

It is a matter of common knowledge that the sweepers hail from almost the lowest strata of our society. The Government as per the constitutional scheme, has taken measures for upliftment of the said class. A demand was made by their union on which the decision in specific for Safaikarmis was taken on 21.5.2002. This is also settled in law that a specific provision excludes the general. The respondents are unable to show that this policy of 21.5.2002 was modified, superseded or cancelled at any point of time later on. As per clause 3 of this policy dated 21.5.2002, the petitioner is eligible to get compassionate appointment. There is no impediment in this policy in getting employment which may be there in the general policy (clause 4.1). In the opinion of this Court, the Nagar Panchayat has erred in following the general policy and further erred in relying on clause 4.1 of the said policy. In the opinion of this Court, petitioner is very much eligible for consideration under the policy dated 21.5.2002.

Consequently, the order Annexure P-1 dated 21.5.2010 is set aside. The respondents are directed to consider the case of the petitioner and issue appropriate orders within 45 days by considering the petitioner''s case as per policy dated 21.5.2002. The appropriate orders be passed and communicated to the petitioner within aforesaid time. Petition is allowed. No costs.