Pushpraj Singh Bharadwaj vs State of M.P. and Others

Rajendra Menon, J—Challenging the order dated 19.3.2012 and order dated 26.5.2012 passed by Superintendent of Police, Seoni in the matter of refusing to grant compassionate appointment to the petitioner, this writ petition has been fled.

Petitioner''s father was working in the Police Department as a Constable. He left his home on 6.12.1994 and thereafter for the period of about 10 years his whereabouts were not known. It seems that the Court of 1st Civil Judge Class-I, Seoni declared him to be dead and accordingly succession certificates were also issued on 2.12.2005. On 22.12.2005 petitioner was appointed as Bal Arakshak (Boy Orderly) and thereafter when he completed the age of 18 years he applied for grant of compassionate appointment on a Class-IV post of Constable. The petitioner''s application dated 3.4.2007 was considered and his case was proposed for appointment on Class-IV post. However when the petitioner was subjected to medical examination as requirement of statutory rules governing recruitment to the post of Constable, petitioner was found medically unfit for appointment as a constable. Accordingly the petitioner''s claim was rejected. Thereafter petitioner wanted consideration of his case in accordance to the policy for grant of compassionate appointment in any other Department or category and approached this Court by fling a writ petition W.P. No. 21875/2011 and a Bench of this Court on 2.1.2012 vide Annexure P-1 directed the Collector to reexamine the case and take a decision. The Collector reexamined and having rejected the claim for appointment, but granted monetary compensation of Rs. 1 lac in accordance to the policy of the State Government as contained in Annexure P-12 i.e. 18.12.2008, petitioner has again fled this writ petition.

Shri Umesh Trivedi, learned counsel for petitioner raised two grounds in support of his contention. It was first submitted by him that the petitioner had submitted the application in the year 2007 and therefore his claim should have been considered in the light of the policy as was existing on the date when the application was fled and not in accordance with the policy dated 18.12.2008, which came into force when the consideration was made. Accordingly, it is said that consideration as per the policy Annexure P-12 is not sustainable. The second contention advanced is that the order in question passed by Superintendent of Police is non-speaking order and as this Court in the earlier writ petition has directed the Collector to pass a speaking order, the Superintendent of Police having not passed a speaking order, the same is unsustainable. Thereafter learned counsel placed reliance on clause 9.6 of the policy Annexure P-12 to canvass the contention that petitioner''s case for grant of compassionate appointment in any other department has not been considered.

Shri Sanjay Dwivedi, Dy.A.G., for State refuted each and every allegation of the petitioner. It was submitted by Shri Dwivedi that in accordance to the Full Bench judgment of this Court in the case of Bank of Maharashtra and Another Vs. Manoj Kumar Deharia and Another, (2010) ILR (MP) 1876 : (2010) 4 MPHT 18 : (2011) 1 MPJR 19 : (2010) 3 MPLJ 213 the majority view lays down the following principle :-

"33(c) Having regard to the exceptional nature of this appointment and taking note of the fact that it is granted under a special Scheme carved out dehors the normal mode of recruitment, the same has to be governed as per the Policies or Provisions governing such appointment prevalent at a particular point of time when consideration is to be made, and not on the basis of a policy which was in vogue and has been given up by the employer due to changed circumstances."

According to him the consideration has to be made in accordance to the policy in vogue at the time of consideration and not the policy which was existing at the time of fling of the application. As far as indicating of reasons by Superintendent of Police in the impugned order is concerned, Shri Dwivedi pointed that even though in the order passed by Superintendent of Police the reasons might not be given, but in para 4 onwards and particularly in para 5 & 6 of the return the reasons have been indicated for rejecting the claim of the petitioner and in the absence of the petitioner being able to demonstrate that the reasons are unsustainable no indulgence is called for. Placing reliance to clause 9.6 of the policy Annexure P-12 Shri Sanjay Dwivedi, argues that this principle is applicable only if vacancies are not available in the department. It is said that in this case claim of the petitioner is not rejected on account of non availability of vacancy, but it was rejected because of petitioner being unfit.

In the case of Manoj Kumar Deharia (supra) the Full Bench has laid down the principle with regard to consideration of a claim for compassionate appointment with reference to the policy, which is to be applied. In para 33 as reproduced hereinabove, it is clearly held that consideration has to be made as per the policy in vogue at the time of consideration and not in accordance to the policy which existed at the time of death of the employee or the date of fling of the application.

As the case of petitioner has been considered in accordance with the policy in vogue, I find no error in the action of the respondents. As far as contention of the petitioner that the claim of petitioner is rejected without indicating any reason is concerned, it is clear from the return fled that the petitioners case for grant of compassionate appointment on the post of constable a class IV post was considered and finding him medically unfit the claim was rejected. The reasons even though is not indicated in the order, but the same has been explained in the return fled by the respondents, that as the petitioner was found unfit medically, therefore his claim for compassionate appointment was rejected. The petitioner was unable to demonstrate that non disclosure of reasons has caused prejudice and how it effects his right for claiming appointment.

As far as contention that the case of petitioner should have been considered in accordance to clause 9.6 of the policy is concerned, on a perusal of Clause 9.6 of the policy, it is clearly seen that consideration in other department is to be made only when compassionate appointment is not granted on account of non availability of vacancy in the parent department where the claim is made.

In the present case, petitioner''s case is not rejected on the ground that in the department no vacancy is there, but on the other hand claim of the petitioner is rejected on the ground that petitioner was found unsuitable as he was found medically unfit, therefore clause 9.6 is not applicable in the case of petitioner.

Accordingly, finding no reason to interfere in the order, this petition is dismissed.