STATE OF MADHYA PRADESH & ORS. versus AMIT SHRIVAS on 29 September 2020

1. The respondent raises a claim of entitlement to compassionateappointment on account of the demise of his father late Shri RanglalShrivas, who was working as a Driver in the Tribal Welfare Department,Bhind, Madhya Pradesh, since 6.6.1984 till he passed away on11.12.2009, i.e., over a period of almost 23 years.

2. The claim of the respondent was predicated on the nature ofemployment of his late father, who was initially appointed as a work-charged employee. On 12.3.1987, he was made permanent and waspaid salary at a regular pay-scale. The benefits of revision of pay andkrammonati (promotion) were also extended to him from time to time.On the demise of late Shri Ranglal Shrivas, he left behind an ailing wife,a son (i.e., the respondent herein) and three daughters and is stated tohave been the sole breadwinner for his family. The family, thus, facedundue economic hardship. A Pension Payment Order (‘PPO’) underthe Madhya Pradesh Civil Pension Rules, 1976 was issued in favour ofthe family on account of his having worked from 12.3.1987 to 11.12.2009on the basis of his last pay-scale and grade pay. In view of the economichardship, the respondent filed an application seeking the benefit ofcompassionate appointment.

3. The request of compassionate appointment was, however,rejected by the third appellant vide order dated 19.8.2010. Reliance wasplaced on the Policy in force for compassionate appointment dated18.8.2008, issued by the General Administration Department Ministry,Madhya Pradesh Government. This policy pertains to when aGovernment servant dies while in service, and if such an employee isearning a salary from the work-charge/contingency fund at the time ofhis/her demise, then there was no provision for the grant of suchappointment. In this behalf, reliance was placed on Clause 12.1 of the A

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APolicy, which provided for a compassionate grant of Rs.1,00,000/- to thenominated dependent of such an employee, and in this case, the samewas sanctioned to the wife of the deceased. It would be appropriate toreproduce the relevant clause as under:

“12. Provisions for work charge/contingency and daily wagerBemployees 12.1 When employees receiving salary from work charge/contingency fund and daily wager employee die, they would notbe eligible for the compassionate appointment; however Rs.1 lakhin one installment in the name of compassionate grant shall beCgiven to the dependent member of the family nominated by them.The amount of gratuity shall not be included in it. The payment ofthis amount shall be given from the salary head under the head ofwork charge/contingency of the concerned department.”

4. The respondent, being aggrieved by the aforesaid order datedD19.8.2010, filed WP No. 3542/2012 before the High Court of MadhyaPradesh, Gwalior Bench. The Madhya Pradesh (Work Charged andContingency Paid Employees) Pension Rules, 1979 (hereinafter referredto as the ‘Pension Rules’), more specifically Rule 2(c), was relied upon.This Rule stipulates that any contingency paid employee or work-chargedemployee who has completed 15 years or more of service on or afterE1.1.1974, as a permanent employee. It would be relevant to reproducethe definition of work-charged employee and permanent employee asset out in Rules 2(b) & 2(c) of the Pension Rules as under:

“2. Definitions. — In these rules, unless the context otherwiserequires, -F

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(b) “Work-Charged employee” means a person employed uponthe actual execution, as distinct from general supervision of aspecified work or upon subordinate supervision of the departmentalGlabour, store, running and repairs of electrical equipment andmachinery in connection with such work, excluding the daily paidlabour and muster-roll employee employed on the work;

(c) “Permanent employee” means a contingency paid employeeor a work-charged employee who has completed fifteen years ofHservice or more on or after the 1st January, 1974.”

5. It is not in dispute that the father of the respondent hadcompleted more than 15 years of service at the time of his demise andwas, thus, a permanent employee. Thus, the respondent claimedentitlement to compassionate appointment being eligible for a Class IVpost as per Policy of 18.8.2008 and sought the quashing of the impugneddecision dated 19.8.2010.

6. The writ petition was opposed by the appellants on the groundthat the father of the respondent had been appointed on contingencybasis as per requirement of work as a driver. Such appointment waswith the condition that his service may be terminated with one month’snotice and that his salary would be released from the contingency fund.In this behalf reliance was placed on his appointment order dated5.6.1987, but strangely neither of the parties placed any appointmentletter/order on record. The factum of the wife of the deceased havingalready received Rs. 1,00,000/- as relief in terms of the Policy wasemphasised.

7. The writ petition was allowed by the learned Single Judge ofthe High Court vide order dated 19.7.2013, relying upon an earlierjudgment dealing with the issue of an employee, who had been servingfor more than 15 years and who was, thus, found to qualify for the statusof a permanent employee. This relied upon order was sustained in a writappeal and an SLP against this was also dismissed.[1] On the issue of theapplicability of Clause 12.1 of the Policy reproduced hereinabove, it wasopined that the same would apply to such employees who had not attainedpermanency, i.e., once an employee becomes permanent under thePension Rules, Clause 12.1 was held as inapplicable for compassionateappointment.

8. The fact that the appellants had even granted krammonati tothe late father of the respondent was also taken as the supportivereasoning. The appellants were directed to consider the case of therespondent for compassionate appointment in terms thereof. Aggrievedby the same, the appellants preferred Writ Appeal No. 583/2013, interalia, on the ground that the respondent was not entitled to compassionateappointment and he was not a regular Government employee within themeaning of Rule 2(b) of the Madhya Pradesh Civil Service ConductRules, 1965, which reads as under:

1 Shahjad Khan v. State of Madhya Pradesh & Ors. (WP No. 2731/2010, WA No. 110/2013 and SLP (C) No. 5859/2014)

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A“2. Definitions. - In these rules, unless the context otherwiserequires,-

(b) “Government servant” means any person appointed to anycivil service or post in connection with the affairs of the State ofBMadhya Pradesh.

Explanation. - A Government servant whose services are placedat the disposal of a company, corporation, organisation or localauthority by the Government shall, for the purpose of these rules,be deemed to be a Government servant serving under theCGovernment notwithstanding that his salary is drawn from sourcesother than from the Consolidated Fund of the State.”

9. The emphasis of the appellants was also on the principle that acompassionate appointment is not an inherent right but a prerogative ofthe State, which can only be granted as per the concerned policyDformulated and enforced at the relevant time. Since Clause 12.1 of thePolicy did not provide for compassionate appointment to work-charge/contingency fund and daily wager employees, the monetary benefit asadmissible therein had already been granted. The difference between aregular and a permanent employee was emphasised and additionally, itEwas pleaded that even the Rs. 1,00,000/- paid had not been directed tobe refunded.

10. The writ appeal was dismissed by the Division Bench of theHigh Court vide impugned order dated 2.1.2014, primarily predicated onthe reasoning that the late father of the respondent was a permanentFemployee as per the Pension Rules. Insofar as grant of amount ofRs. 1,00,000/- was concerned, it was directed to be returned to theappellants in the event of the respondent gaining compassionateappointment.

11. It appears that the appellants were in the process of filing anSLP and, thus, on 12.2.2014, appellant No. 3 accepted the respondent’sGclaim for compassionate appointment, but subject to the conditions thatthe amount of Rs. 1,00,000/- should be returned, that such appointmentwould be dependent on the availability of a vacancy/post, that the postingoffered be compulsorily accepted, and lastly, if an SLP/appeal is filed,then the outcome of the same will be binding. The SLP was filed onH12.7.2014 and after condonation of delay, notice was issued and the operation of the impugned judgment was stayed vide order dated6.2.2015. Leave was granted on 12.10.2015 and the interim order wasmade absolute. Thus, till date the respondent has not got the benefit ofcompassionate appointment.

12. We have heard the learned counsels for the parties.

13. In our opinion, the only issue which has to be examined iswhether the late father of the respondent who admittedly was employedas a work-charged/contingency employee in the Tribal WelfareDepartment was entitled to the compassionate appointment as per theexisting policy on the date of his demise.

14. It is trite to say that there cannot be any inherent right tocompassionate appointment but rather, it is a right based on certain criteria,especially to provide succor to a needy family. This has to be in terms ofthe applicable policy as existing on the date of demise, unless a subsequentpolicy is made applicable retrospectively.[2]

15. Insofar as providing succor is concerned, unfortunately, sincethe demise of the late father of the respondent, 11 years have passedand really speaking, the aspect of providing succor to the familyimmediately does not survive. We have still examined the matter in theconspectus of the applicable policy. It is not in question that the Policyprevailing was one dated 18.8.2008. Clause 12.1 clearly proscribes work-charge/contingency fund and daily wager employees from compassionateappointment. The gravamen of the submission of the respondent is basedon the classification of his late father as a permanent employee on accountof having worked for more than 15 years and the consequent regularisationof his service.

16. In our view, the aforesaid plea misses the point of distinctionbetween a work-charged employee, a permanent employee and a regularemployee. The late father of the respondent was undoubtedly a work-charged employee and it is nobody’s case that he has not been paid outof work-charged/contingency fund. He attained the status of a permanentemployee on account of having completed 15 years of service, whichentitled him to certain benefits including pension and krammonati. Thiswill, however, not ipso facto give him the status of a regular employee.

2 State of Gujarat & Ors. v. Arvindkumar T. Tiwari & Anr., (2012) 9 SCC 545

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A17. In the aforesaid behalf, an analogy can be drawn with theMadhya Pradesh Industrial Employment (Standing Orders) Rules, 1963,under which employees can be classified as permanent, permanentseasonal, probationers, badlis, apprentices, temporary and fixed-termemployment employees. A work-charged contingency employee can alsobe classified under any of the aforementioned categories and under theBsaid Standing Orders, the classification as permanent can be grantedeven on the completion of 6 months service in a clear vacancy.

18. We are not required to labour much on the aforesaid issue andreally speaking this issue is no more res integra in view of the judgmentof this Court in Ram Naresh Rawat v. Ashwini Ray & Ors.,[3] whichCopined that a ‘permanent’ classification does not amount to regularisation.The case dealt with the aforesaid Standing Orders and it has been observedin paras 24, 26 & 27 as under:

“24. It is, thus, somewhat puzzling as to whether the employee, ongetting the designation of “permanent employee” can be treatedDas “regular” employee. This answer does not flow from the readingof the Standing Orders Act and Rules. In common parlance,normally, a person who is known as “permanent employee” wouldbe treated as a regular employee but it does not appear to beexactly that kind of situation in the instant case when we find thatEmerely after completing six months’ service an employee getsright to be treated as “permanent employee”. Moreover, this Courthas, as would be noticed now, drawn a distinction between“permanent employee” and “regular employee”.

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26. From the aforesaid, it follows that though a “permanentemployee” has right to receive pay in the graded pay-scale, at thesame time, he would be getting only minimum of the said pay-scale with no increments. It is only the regularisation in servicewhich would entail grant of increments etc. in the pay-scale.

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27. In view of the aforesaid, we do not find any substance in thecontentions raised by the petitioners in these contempt petitions.We are conscious of the fact that in some cases, on earlieroccasions, the State Government while fixing the pay scale, granted increments as well. However, if some persons are given the benefitwrongly, that cannot form the basis of claiming the same relief. Itis trite that right to equality under Article 14 is not in negativeterms (See Indian Council of Agricultural Research & Anr. v.T.K. Suryanarayan & Ors. [(1997) 6 SCC 766]”

19. The conclusion to be drawn from the aforesaid is that attainingthe status of permanent employee would entitle one only to a minimumof the pay-scale without any increments. It is this aspect which wassought to be emphasised by learned counsel for the respondent to contendthat this would not apply, because in the present case, krammonati andincrements were given. However, we may note that in the order dated7.2.2002 granting the benefit of monetary krammonati to employees,including the respondent’s father, it was specified that the same wouldnot affect the posts of such employees.

20. The moot point, thus, is that having been granted increments,could a person be said to have reached the status of a regular employee?In order to answer this question, we may note that while considering thisaspect in the aforesaid judgment, it was specifically opined that even “ifsome persons are given the benefit wrongly, that cannot form thebasis of claiming the same relief. It is trite that right to equalityunder Article 14 is not in the negative terms.” We say so, not with theobjective of giving a licence to the appellants to withdraw any of thebenefits, which are already granted, and we make this unequivocallyclear. However, we cannot at the same time make a conclusion that thestatus acquired is that of a regular employee upon having achieved thestatus of a permanent employee in service.

21. Thus, the classification of the late father of the respondent asa permanent employee, and this distinction between a ‘permanent’ statusand a ‘regular’ status appears to have been lost sight of in the impugnedjudgments.

22. We may also notice the reliance placed by learned counsel forthe respondent on certain other cases where orders similar in naturewere passed by the High Court and an SLP against one of these orderswas dismissed, but then we have already observed that this will not givea right for perpetuating something which is not permissible in law.

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23. We had the occasion of examining the issue of compassionappointment in a recent judgment in Indian Bank & Ors. v. Promila &Anr.[4] We may usefully refer to paras 3, 4, & 5 as under:

“3. There has been some confusion as to the scheme applicableand, thus, this Court directed the scheme prevalent, on the date ofthe death, to be placed before this Court for consideration, as theHigh Court appears to have dealt with a scheme which was of asubsequent date. The need for this also arose on account of thelegal position being settled by the judgment of this Court in CanaraBank & Anr. v. M. Mahesh Kumar, (2015) 7 SCC 412, qua whatwould be the cut-off date for application of such scheme.

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4. It is trite to emphasise, based on numerous judicialpronouncements of this Court, that compassionate appointment isnot an alternative to the normal course of appointment, and thatthere is no inherent right to seek compassionate appointment. Theobjective is only to provide solace and succour to the family inDdifficult times and, thus, the relevancy is at that stage of timewhen the employee passes away.

5. An aspect examined by this judgment is as to whether a claimfor compassionate employment under a scheme of a particularyear could be decided based on a subsequent scheme that cameinto force much after the claim. The answer to this has beenemphatically in the negative. It has also been observed that thegrant of family pension and payment of terminal benefits cannotbe treated as a substitute for providing employment assistance.The crucial aspect is to turn to the scheme itself to consider as towhat are the provisions made in the scheme for suchcompassionate appointment.”

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24. We are, thus, unable to give any relief to the respondent, muchas we would have liked under the circumstances, but are constrained bythe legal position. The family of the late employee has already been paidGthe entitlement as per applicable policy.

25. We may, however, notice a subsequent development arisingfrom certain additional documents placed on record pertaining to theamendment to the policy of 18.8.2008 vide Circular dated 29.9.2014. Interms of this Circular, the compassionate grant amount was increased H4 (2020) 2 SCC 729

from Rs. 1,00,000/- to Rs. 2,00,000/-. Another Circular was issued on31.8.2016, through which, a decision was taken that the dependents ofdeceased employees drawing a salary from the work-charged/contingencyfund would be entitled to compassionate appointment, but it was clarifiedvide Circular dated 21.3.2017 that pending cases before the date of the31.8.2016 Circular would be decided only in terms of the amended Policydated 29.9.2014. That being the position, this last Circular also does notcome to the aid of the respondent as it would amount to making thepolicy retrospectively applicable, while the Circular says to the contrary.

26. We, however, are of the view that we can provide some succorto the respondent in view of the Circular dated 21.3.2017, the relevantportion of which reads as under:

“2. In this regard, it is clarified that the compassionate appointmentfor the employees of Workcharge and Contingency Fund is inforce also w.e.f. 31.08.2016. And the cases pending before thisdate, will be decided only in accordance with the directions issuedfor compassionate appointment on 29.09.2014, i.e., they will beeligible only for compassionate grant and not the compassionateappointment. The proceedings be ensured accordingly.”

27. The aforesaid Circular records that pending cases will bedecided in accordance with the directions issued for compassionateappointment on 29.9.2014. The present case is really not a pending casebefore the authority, but a pending lis before this Court.

28. We are, thus, of the view that it would be appropriate to useour powers under Article 142 of the Constitution of India to do completejustice between the parties by increasing the amount fromRs. 1,00,000/- to Rs. 2,00,000/- as aforesaid. We, in fact, adopted asimilar approach in Punjab State Power Corporation Limited & Ors.v. Nirval Singh.[5]

29. It appears from the documents on record that possibly a sumof Rs. 1,00,000/- was deposited by the respondent with the State Bankof India in an interest-bearing deposit in 2016, and the amount wouldpossibly be lying in the same deposit. This would have been pursuant tothe impugned order. We, thus, direct that this FDR be released to therespondent and that this amount, along with interest which would accrueto the benefit of the respondent, apart from the additional amount of Rs.

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[2020] 11 S.C.R.

A1,00,000/-, we have found as payable to the respondent which should beso paid within a period of two (2) months from today, failing which it willcarry interest @ 12 per cent per annum (simple interest) till the date ofpayment.

30. The appeal is accordingly allowed leaving the parties to bearBtheir own costs.

Kalpana K. Tripathy

Appeal allowed.

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