Substitution Of Appointment On Compassionate Grounds Through Contractual Employment Not Permitted: Madhya Pradesh High Court

Holding the appointment of the Petitioner on contractual basis as illegal, the division bench of Chief Justice Ravi Malimath and Justice Vishal Mishra observed-

An appointment on compassionate grounds is an appointment to a regular post. Therefore, all consequences will follow. An appointment based on contract would entail the consequences that arise out of a contractual appointment. The rules do not permit substitution of an appointment on compassionate grounds through contractual appointment. Therefore, the appointment of the petitioner on contractual ground is illegal. The respondents had no authority to do so. The further contention that as on that day the posts were not available may be a matter of fact to be ascertained. Even assuming the posts were not available that does not give a right to the respondents to convert an appointment on compassionate grounds on contractual basis. Hence, we do not find any ground in the said contention.

The facts of the case were that the Petitioner, despite being eligible for appointment on compassionate grounds, was appointed by the authorities on contractual basis for three years. However, after 5 months of service, his appointment was cancelled on the ground that the said post was unavailable. He then made multiple representations to the authorities and eventually moved the Court challenging their inaction. The Writ Court dismissed his petition and thus, the Petitioner preferred an appeal against the same.

The Petitioner argued before the Court that he was entitled for grant of appointment on compassionate ground but was appointed on contract basis. But even that had been cancelled. Hence, he pleaded that there had been a gross miscarriage of justice by the authorities.

Per contra, the Authorities submitted that the Petition was barred by limitation and was liable to be dismissed. Furthermore, it was clarified by the authorities that the Petitioner was appointed on contractual basis as there were no posts available at the time when he had moved the application for appointment on compassionate grounds.

Examining the submissions of parties and documents on record, the Court rejected the grounds taken by the authorities. With regard to the question of delay, the Court noted-

The contention that there is a delay in filing the writ petition is also misconceived and cannot be accepted. Here is a man who was entitled for grant of appointment on compassionate ground. In law, such an application has still not received any consideration by the respondents. Only because a contractual appointment has been made does not indicate that the application for grant of compassionate appointment has been satisfied. In law, the application seeking grant of appointment on compassionate grounds continues to remain. They have still not granted him compassionate appointment nor have they rejected the application. Therefore, when they have granted him appointment on contractual basis, it is not an answer to the application seeking grant of appointment on compassionate grounds. Therefore, the delay, if any, is to be held against the respondents and not against the petitioner.

Furthermore, the Court held that nowhere does the policy indicate that a compassionate appointment could be substituted by contractual appointment-

So far as Clauses 4, 5 and 6 are concerned, nowhere does it indicate that a compassionate appointment can be substituted by a contractual appointment. We have also noticed that Clause-4 pertaining to other important condition would also indicate that a person entitled for appointment on compassionate grounds will be appointed to the regular vacant post.

With the aforesaid observations, the Court set aside the order passed by the Writ Court and further directed the authorities to appoint the Petitioner on compassionate grounds within a period of eight weeks. The Court also directed the authorities to pay the Petitioner Rs 1 lakh as costs. Accordingly, the Appeal was allowed and disposed of.

Case Title: DHARMENDRA KUMAR TRIPATHI versus THE STATE OF MADHYA PRADESH AND ORS.

Citation: 2022 LiveLaw (MP) 174