,-'^_ I/^CA^] ^ys^ a IA-'5T.;-. <^ BEFCBS THS ®i@^M.P.ST^aS AOIINISSaAI IVB TRIBUH&It BSNCH AT JAB&L.PUR C'.A.NO. C^,3 2^__yi998. psr ir ION!® Iiilsshwar prasad Tiwari s/0 Lats gbEi Hulasram liwaxi aged aboat 38 yeais gsiving as a clerk R/o Rajapara, Chav^ •Stgtt. Bilaspur (HP)« Vsrgus RESPONDSI'H' 1- The S'fcate of Mp thEough 1hs sscretay Education Deptt* B Vallabh Bhawan,, Bhopal (Mp), 2- Tae Joint Director public Education Bilaspur Divisloo Bl.laapar (•Hp) „ 3- Tna Director Pufilic Itigtractioo (Sducation) vallabb Bhawsn, Baopal(i»lj> ) APPL.ICA'riQN UNDER SECI'ION 19 OF THS ADMmiSSRA'IIVE TRISuNAIi ACT 1985 ^^ HIGH COURTOF CHHATTISGARH : BILASPUR WRIT PETITION (S) N0.1695/2005 i.1, '1!iK!lr<tw,u, PETiTIONER RESPONDEN'K Lileshwar Prasad Tiwary Versus The State of Madhya Pradesh and others SinaleBench: Hon'ble Shri Manindra MohanShrivastava, J. Present:- Shri S. P. Kale, counsel for the petitioner. Shri Arvind Dubey, Panel Lawyer for the State/respondent No.1 & 2. ORALORDER (Passed on this18tn day of March, 2010) With the consent of learned counsel for the parties, the petition is heard finally. (2) Short controversy which arises for consideration is whether termination of the petitionervide impugned order dated 07-09-1994 (Annexure A-7) is in accordance with law or not. (3) Facts not in dispute are that the father of the petitioner was in government service and he retired on 30-06-1993 and thereafter died on 26-10- 1993. The petitioner made representation to the respondents for grant of cpmpassionate appojntment on the basis ofthethen existing policy with regard to grant of compassionate appointment. The case of the petitioner was considered and order of compassionate appointment came to be passed on 25- 08-1994 (Annexure A-6). However, soon thereafter, the impugned order was passed stating that in viewofthe order dated 31-08-1994 passed bythe'Joint Director, Education Djvision, Bilaspur, services of the petitioner were terminated. The petitioner made representations to the respondents as well as to some otherauthorities and finally approached the then existing State Administrative Tribunal. .. 1 (4) Submission of learned counsel forthe petitioner is that as his Catherhad died on 26-10-1993, withinthreeyearsfrpmthe dateofhis retirement, Uie Bpljcy in vogys wasdated 24-03-1975 (Anna(yreA-12). He sybmits that thejpoBeyj^of grant of compassiohate appointment incase pf death Of a govemment servant f ,<«^%11 ;?*.-~»?'F"""S S ^ssy ss^^ \\^° z- BSJ:;' BI:I B! within three years of retirement, was superceded only vide circular dated 10-06- 1994 (Annexure A-13). He submits that itwas not the subsequent circular dated 10-06-1994 but cireular dated 24-03-1975 which was aDDlicable. The other contention of learned counsel for the petitioner is that once he was appointed, his services could not be terminated without giving him an opportunity of hearing .•s": S-. . .. ~ ~ " as the terminatioh involves civil consequences. (5) On the other hand, learned State counsel submits that the petitioner was not entitled to compassionate appointment in view of the subsequent circular dated 10-06-1894 (Annexure A-13). He submits that the case of the petitioner was liable to be considered only in accordance with the circular dated 10-06- 1994 because on the date of consideration of his application, this circular was prevalent and not the eartier circular dated 24-03-1975. He submits that the petitioner could not claim compassionate appointment as of right and he is entitled to said consideration for compassionate appointment only in accordance with the policy and not dehors the pQlicy of compassionate appointment in existence and in force on the date of consideration of the case of the petitioner. Repeliing the submission made by learned counsel for the petitioner, it has been stated that present Is a case of foregone conctusion. As no two views are possible, petitioner is not entitled to grant of relief on the ground of violation of principles of natural justice as this would be an empty formality. (6) I have considered the rival contentions made by learned counsel for the parties and perused the records. (7) It is not in dispute that the date on which the father of the petitionsr died, the earlier circular dated 24-03-1975 (AnnexureA-12) was in force and in existence. The said policy of considering the case for grant of compassionate appointment in case of death of a government servant within three years from the date of his retirement was superceded by issuance of circulardated 110-06- 1994 (Anrexure A-13), It appears that initially when the petitioner was given appointment, he was tound eligible in view of the policy contained in circular dated 24-03-1975,buttateron,theJointDirector opined that the petitioner is not entitled to such appointment and his services were terminated. It is apparent that this decision t6 terminate the services of the petitionsr was fountleci on application of policy containedincirculardated 10-06-1994 (Annexure A-13). *:^tas^ '^,. ^...^^'^'..^% ^ t '<IS»ii" $S <fr^ ^r ixf'-if -3. This is reflected from averments contained in the return to the effect that the petitioner ought not to have been appointed as Lower Division Clerk on compassionate ground as the father of the petitioner had died after his retirement. (8) In the cass of.'Abhishek Kumar Versus State of Haryana and others, (2006) 12Supreme Court CasQS 44, while considering acase relatingto compassionate appointment, where the government servant had expired on 10-02-2001, it was held that the case was required to be considered in terms of the Rules which were in existence in the year 2001 . In that case, it was found that the subsequent notification dated 28-02-2003 was relied upon by the employer to resist the claim of compassionate appointment and on that basis, petition was dismissed by the High Court. In the aforesaid context, the Supreme Court observed as under:- "The appellant herein had squght for appointment on compassionate grounds at a point of time when the 2003 Rules were not in existence. His ease, therefore, was > required to be considered in terms of the Rules which were in existence in the year 2001." (9) In thecase ofPrashantKumarRatvs. United Bank of India an others, 2002 Labl.C. 2887, High Court of Jharkhand while considering the same issue held as under:- "At this stage, ! am not going to express any opinion on the validity of the revised scheme issued by the respondeni Bank. Suffice it to say that the father. of the petitioner died on 26-11-1998and admittedly in theoriginal scheme, the son o) the deceased employee was entitled for eompassionate appointment. This was the reason the respondent-Bank vide letter dated 22-02-1999and 22-01-2000 called upon the petitioner tosubmit all the documents arid on submission o) all the documents by the petitioner.the application was processed.In that view of the matter, the claim of the petitioner could not have been rejected on the basis o1 revised scheme, which came into operation in 2001. The , decitsion taken by the respondent-Bank refusing to give employment to the petitioner on the groundof provisipns of the revised scheme 2001 is therefore absolutely illegal, arbitrary and unjustified. In my opihion, petitioner is entitled fo compassionate appointment on the basis of the scheme which was applicabte on the day when petitioner's fathei I died." • : • • : : : i ..i-4- ^ ^y ^^ V3€/ '^lmneii?'" • -^ (10) It is trite that administrative circulars are not retrospective in operation but only prospective. In the case of Jafcteep Yadav vs. State of Madhya Pradesh and others, decided by this Court on 02-05-2Q07 in W.P.(S.)No.2632 of 2005, this Court held:- "The cirgtitardated 10-09-1995 (Annexure R-5) declaring all the appointments not in accordance with law has been issued without any basis, with retrospective effect. The ciroular, in view of settled position of law as stated above, cannot take away the rights of the petitioner, which has accrued on account of his appointment iri accordance with the dreular dated 10-06-1994." Additionally, it is also found that itwas not a case offoregone conclusion. The respondent authorities have passed the orderof cancellation/termination of compassionate appointment which involved civil consequences, as the petitioner by such decision, was deprived of his sourceof livelihood. The petitioner was therefore entitled to proper opportunity of hearing also. The impugned order therefore vlewed from any angle is not sustainable in iaw. Consequently, the impugned orders dated 31-08-1994 and 07-re-1994 (Annexure A-7) are hereby quashed and set aside. The petitionerisentitledto all consequential benefits. No ol-ders as to cost. —-—- ,r'^ Sd/- . Manindra Mohan Shrivastaval Judge s