Shri Gajanan Bahu-Uddeshiya Shikshan Sanstha, Nagpur Thr. Secretary Ramesh K. Borkar And Others v. State Of Maharashtra, Through Secretary, Department Of School Education And Sports, Mumbai And Othe
2023:BHC-NAG:13174-DB 1/14
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.2092 OF 2020 1.
Shri Gajanan Bahu-Uddeshiya Shikshan Sanstha, Nagpur through its Secretary Ramesh Krishnarao Borkar Office at Shri Gajanan Vidyalaya, 751, New Subhedar Layout, Nagpur 2.
Shri Gajanan Vidyalaya and Junior College, Nagpur through its Principal, Vijay Ramesh Shahakar, 751, New Subhedar Layout, Nagpur 3.
Smt. Sunita Suresh Nimbulkar, Aged 44 years, Occupation - Service, R/o. Plot No.115, Ayodhya Nagar, Nagpur ...PETITIONERS
VERSUS
1.
State of Maharashtra, through its Secretary, Department of School Education and Sport, Mantralaya, Mumbai - 32 2.
Deputy Director of Education, Nagpur Division, Balbharati, Opp. Dhantoli Park, Dhantoli, Nagpur 3.
The Education Officer (Secondary) Zilla Parishad, Nagpur ...RESPONDENTS
2/14 _______________________________________________________ Mr. B.G. Kulkarni, Advocate for the petitioners. Mr. M.K. Pathan, Assistant Government Pleader for respondent Nos.1 to 3/State.
_______________________________________________________
CORAM
:
AVINASH G. GHAROTE & URMILA JOSHI-PHALKE, JJ.
RESERVED ON :
AUGUST 30, 2023 PRONOUNCED ON :
SEPTEMBER 05, 2023 JUDGMENT (Per Urmila Joshi-Phalke , J.
) RULE. Rule made returnable forthwith. Heard finally with the consent of learned Counsel for both the parties. 2.
By this petition, petitioner No.3 who is widow at young age has approached to this Court with prayer to direct respondent No.3 - The Education Officer (Secondary), Zilla Parishad, Nagpur to grant approval to the appointment of petitioner No.3 as a Peon in petitioner No.2- School in terms of letter dated 10/01/2020. 3.
Petitioner No.1 is an educational society which has established petitioner No.2 - School which is grant-in-aid school. The five posts of Peon were sanctioned in petitioner No.2 - School. The staff approval orders are also filed along with this petition. Shri Suresh Nimbulkar husband of petitioner No.3 was appointed as a Peon in petitioner No.2 - School on the sanctioned post on 26/06/1990 in OBC
3/14 category. The appointment was approved by respondent No.3 as per order dated 12/10/1990. Undisputedly, the five posts of Peon were filled as per the rules and all appointments lawfully approved. Shri Suresh Nimbulkar has expired suddenly on 04/03/2013 due to the accident. Petitioner No.3 is the wife of the deceased Suresh and is having minor daughter and minor son. She applied for grant of appointment as Peon on compassionate ground. The post was sanctioned post and had become vacant because of the death of the her husband. The School Committee had accordingly passed the Resolution on 08/09/2013 for the appointment of petitioner No.3 on compassionate ground with effect from 11/09/2013. She had joined the service in petitioner No.2 - School on 11/09/2013 and is working as a "Peon" till today. On 21/10/2013, petitioner No.
2 had submitted proposal dated 21/10/2013 to respondent No.3 - the Education Officer (Secondary), Zilla Parishad, Nagpur for grant of approval along with the copies of all necessary documents. The proposal remained undecided, therefore, repeated requests were made by letters dated 23/07/2014, 22/05/2015, 27/05/2019, 13/09/2019 and 10/10/2019. Finally on 10/01/2020, respondent No.3 - the Education Officer as per the letter of the same date has refused to grant approval and has directed petitioner No.1 to discontinue the appointment.
4/14 dated 28/01/2019 alleging that revised staffing pattern for Class IV employees has not been issued.
4.
As per the contention of the petitioners, the appointment of petitioner No.3 as a "Peon" on compassionate ground is the lawful appointment. The post of "Peon" was the sanctioned post. Till 04/03/2013 the husband of the petitioner was working on the said post as an approved "Peon". The proposal for grant of approval was submitted by petitioner No.2 to respondent No.3 on 21/10/2013. Respondent No.3 had never communicated any deficiency in the said proposal. After his death, the compassionate appointment was granted to petitioner No.3. Respondent No.3 illegally and arbitrarily refused to grant the approval. Said order of the Education Officer (Secondary) refusing to grant approval is illegal and liable to be set aside with direction to grant approval to the appointment of petitioner No.3. 5.
Said petition is opposed by the respondents on the ground that the approval to the appointment was refused in view of the Government Resolution dated 28/01/2019. The order passed by the Education Officer is legal and reasonable one.
5/14 6.
Heard Shri B.G. Kulkarni, learned Counsel for the petitioners. He reiterated the said contentions and submitted that the action of the Education Officer is arbitrary one. He placed on record the communication to the Education Officer by the Section Officer of Government of Maharashtra which says that the appointment on compassionate ground on the post is originally a sanctioned post. It is not a new appointment or not a creation of new post, and therefore, the Education Officer shall not refuse the approval. He further placed reliance on the judgment of this Court in the case of Yogita w/o Shivsing Nikam Vs. State of Maharashtra and ors. 2021 LawSuit (Bom) 875. He submitted that in view of the said decision, present case of the petitioners is covered and directions are required to be issued to respondent No.3, to grant the approval.
7.
Shri M.K. Pathan, learned Assistant Government Pleader for the respondents reiterated the contention and submitted that in view of the Government Resolution dated 28/01/2019, the approval is refused. No illegality is committed by the Education Officer and hence, petition deserves to be dismissed.
8.
The issue involved in the present petition is that whether the refusal by the Education Officer to the approval sought for the
6/14 appointment of petitioner No.3 is legal or not. It is well settled that the object behind providing appointment on compassionate ground is by way of an exception to the general rule of appointment on the basis of open invitation of application and merit. While determining the financial condition of the concerned family, whether the family is indigent or not is to be ascertained for compassionate appointment. The whole object of granting compassionate employment by an employer being intended to enable the family members of a deceased/incapacitated employee to tide over the sudden financial crisis, the appointments on compassionate ground should be made immediately to redeem the family in distress. Admittedly, none can claim compassionate appointment by way of inheritance.
The compassionate appointment is a concession and not a right and the criteria laid down in the Rules must be satisfied by all the aspirants, including the satisfaction that the family members have been facing financial distress and that an appointment on compassionate ground may assist them to tide over such distress. Time and again a consistent view has been taken by the Hon'ble Apex Court in the matters of death of a permanent employee and the applicability of the policy of compassionate appointment. A family which is rendered to the comforts of life, there being a bread earner in the family, is shaken due to the death of such a bread earner. This virtually throws the family into a financial crisis.
7/14 schemes have been introduced is laudable since it ensures that the family which has suddenly faced a tragedy and is in mental and financial distress, would be provided with succour. A model employer would ensure that such a family is not rendered to starvation and it's members are not required to beg for keeping their mind, body and soul together. 9.
In the present case, petitioner Nos.1 and 2 considered these aspects. There is no dispute that the husband of petitioner No.3 was appointed on a sanctioned post on 26/06/1990 in OBC category. It is also undisputed that he died due to the accident. His death left behind wife, minor daughter and minor son. Petitioner Nos.1 and 2 have considered this aspects and immediately passed a Resolution to grant appointment to petitioner No.3 as a "Peon" on compassionate ground. The post was sanctioned post and had become vacant because of the death of her husband. It appears from the material placed on record that there were total five sanctioned post of "Peon". The husband of petitioner No.3 was appointed on the said sanctioned post. The Education Officer (Secondary) has granted approval to the said post. Thus, services of the deceased Suresh were approved by the Education Officer. Accordingly, he served in petitioner No.1 - Institution till his death. On 04/03/2013, he died in an accident. On 10/06/2013, petitioner No.3 applied for the compassionate appointment by filing the
8/14 application addressed to petitioner No.1. Petitioner No.1 decided to consider the application and had passed Resolution on 08/09/2013. Accordingly, appointment order was issued to petitioner No.3. Accordingly, she joined the services on 11/09/2013. Petitioner No.1 has submitted proposal for the approval and thereafter several letters were issued to approve the appointment of petitioner No.3. However, no decision was taken and subsequently, it was rejected by respondent No.3.
10.
First time on 03/09/1990, the State Government issued a Government Resolution to provide compassionate appointment to an eligible member of a family, whose sole bread earner has suffered death, while in employment or has been discharged from employment on account of medical incapacitation. Voluntary retirement taken by a permanent employee, who is suffering from a grave disease or terminal illness, is also covered by such Government Resolution. 11.
In a series of such Government Resolutions, the State also introduced the Government Resolution dated 31/12/2002, which makes a reference to 17 Government Resolutions earlier issued. Said Government Resolution resolved as under :
"
शासननिन्ቓय :- शासनानेरा्ቋातीलखाजगी( अनुदानिनतवनिवनाअनुदानिनत)
9/14 'kkGkae/khy निश्ቌकवनिश्ቌकेतरक्चा- यां्ानातेवाईकांनाअनुकंपा त्ावरसेवेतसा्ावूनघे्ቒाबाबतशालेयनिश्ቌणनिवभागानेवेळोवेळी निनगनि्तकेलेलेसव आदेशअनि'्ቅनि्तकरूनअसेआदेशदे्ቒातयेत आहेतकी, रा्ቋातीलखाजगी( अनुदानिनतवनिवनाअनुदानिनत) शाळातील निश्ቌकवनिश्ቌकेतरक्चारीसेवेतअसतांनाअकाली्ृ्ቓूपावलावा कोण्ቓाहीदु'ररोगा्ाकारणाने्ቓालासेवानिनवृ्ቈीप्ሹरावीलागलीतर ्ቓाचेलगतचेनातेवाईकपुढीलअटीव'krhZP;k अनि'नराहूनअनुकंपा त्ावरनिनयु्ሹीनि्ळ्ቒासपा्ቔअसतील:- १.
अनुकंपात्ावरनिनयु्ሹीदे्ቒाबाबतरा्ቋातीलसव खाजगी्ቚाथनि्क, ्ा्ቖनि्कवउ्ሴ्ा्ቖनि्कतथाअ्ቖापकनिव्ቕालयातीलसव निश्ቌकव निश्ቌकेतरक्चा- यांनासदरहुयोजनालागूअसेल.
२.
्ृत वा वैदयकीय कारणा्ቜव सेवानिनवृ्ቈ झाले्ቡा क्चा-यां्ा नातेवाईकाससेवेतसा्ावूनघे्ቒाबाबतचेनिनय्सोबतजोडले्ቡापरिरनिश्ቖ "अ"
््ቖेदे्ቒातआलेलेआहेत.
३.
संबंनि'तक्चा- यां्ानातेवाईकानीनोकरीसाठीकरावयाचाअज व ्ቓासोबतसादरकरावयाचीकागदप्ቔेयाची्ानिहतीपरिरनिश्ቖ"ब" ््ቖेन्ुद के्ቡानुसारअसेल.
४.
हीयोजनाअं्लातआण्ቒापवC अनुकंपात्ावरनिनयु्ሹीदे्ቒा/ नाकर्ቒाबाबतनिनणयघे्ቒातआलाअस्ቡासती्ቚकरणेपुननिवलोकनाथ पु्ቡानिवचारातघे्ቒातयेऊनयेत.
्ा्ቔनिदनांक१जानेवारी, २००१नंतर्ቋा क्चा- यांचेनिन'नझालेआहेवाजेक्चारीदु'ररोगा्ाकारणानेअकाली सेवानिनवृ्ቈझालेलेआहेतअशाक्चा- यां्ाकुटूंबातील्ቤ्ሹीनीअनुकंपा त्ावरनिनय्ሹीसाठीअज केलाअसेलव्ቓांचीनिवनंतीअ्ा्केलीअसेल तरीअसेनातेवाईकयायोजने््ቖेपु्ቡान्ቤानेअज दाखलकरुशकतात. ५.
क्चारी्यतवाअकालीसेवानिनवृ्ቈझा्ቡावरतीन्निह्ां्ाआत निकंवाकुटुंबनिनवृ्ቈीवेतनाचेकागदप्ቔसादरकरतांनासंबंनि'तअनि'का-याने आव्ብक्ानिहती( परिरनिश्ቖ"क") नातेवाईकांनाउपल्ቓकरूनदयावीव निवनिहत ्ቚप्ቔातील उ्ेदवाराचा अज पं'रा निदवसां्ा आत संबंनि'त निश्ቌणानि'का- यांकडेसादरकरावा.
६. ्ቚाथनि्क, ्ा्ቖनि्क, उ्ሴ्ा्ቖनि्कवअ्ቖापकनिवदयालयां्ाबाबतीत सव निश्ቌणानि'कारी/ निश्ቌणनिनरी्ቌकांनीसोबतजोडले्ቡापरिरनिश्ቖ"ड"
्'ील्ानिहतीनिवभागीयनिश्ቌणउपसंचालकां्ा्ቛ तनिश्ቌणसंचालकांकडे पाठवावी.
10/14 ७.
शाळावअ्ቖापकनिवदयालयातीलरु.५,५००-९, ०००यावेतन्ቦेणी पयNत्ासव पदांनाअनुकंपात्ावरनिनयु्ሹीदेतायेईल. तसेचजीपदे भर्ቒासशासनाने्ंजुरीनिदलेलीआहेअशाचपदावरीलनिनयु्ሹीदे्ቒासाठी हेआदेशलागूराहातील.
हेआदेशसा्ा््ቚशासननिवभाग, निव्ቈनिवभागा्ासह्तीने वनिव्ቈनिवभागा्ाअनौपचारिरकसंदभ ्ቅ्ांक८९२/०२/्ቤय-६, निदनांक ३.७.
२००२अ्वेनिनगनि्तकर्ቒातयेतआहेत.
्हारा्ቖ्राचेरा्ቋपालयां्ाआदेशानुसारवनावाने." 12.
Thus, the Government Resolution dated 31/12/2002 lays down the parameters to be applied for appointment of an eligible candidate, on compassionate basis.
13.
Petitioner No.1 had considered all these aspects and considering that the family of the deceased is in distress provided the appointment to petitioner No.3 subject to the approval of respondent No.3.
14.
The Section Officer, State of Maharashtra issued Notification dated 14/09/2022 which makes a reference that the post on which the compassionate appointment is to be made is already a sanctioned post. It is not a new recruitment or new creation of the post, and therefore, it will not affect the ban on the recruitment or non-fixation of the roster. Said Notification is reproduced hereunder :
11/14 "
उपरो्ሹसंदभा'ीनआदेशा्ቝये्ा.
उ्ሴ्ायालयानेअनुकंपात्ावर निनयु्ሹीदेणेही्ानवते्ादृ्ቖीकोनातूनकर्ቒातयेणारीकृतीअसून निश्ቌणानि'कारीयांचेकडूनशासननिनणयाचाचूकीचाअथ लावून्ቚ्ቜाव नाकारलेजातअस्ቡाचेन्ूदकेलेआहे.
वा्ቜनिवकअनुकंपात्ावरनिनयु्ሹी ्ቕावयाचेपदहे्ूळत:
्ंजूरअसते, केवळ्ቓापदावरयात्ांतगतनिनयु्ሹी करावयाचीअस्ቡा्ुळेहीनवीनपदभरतीनसतेनिकंवाहीनवीनपदनिननि्ती देखीलनसतेअसेहीनिनरी्ቌण्ा.
्ायालयानेन्ूदकेलेआहे.
्ቓा्ुळेया निनयु्ሹीवरकोण्ቓाहीपदभरतीबंदीचावाआकृनितबं' निननिVतनस्ቡाचा्ቚभाव पडतनाही, असे्त्ा.
उ्ሴ्ायालयानेन्ूदकेलेआहे. तसेच, यापुढे अशा्ቚकारे अनुकंपा त्ावर निनयु्ሹी नाकार्ቡानिवरु्ቍ यानिचका ्ा.
्ायालयास्ोरआ्ቡाससंबंनि'तअनि'काऱ्यांवरनिश्ቜभंगनिवषयककडक कारवाईतसेच्ा.
्ायालया्ाअप्ान्ቚकरणीकारवाईकर्ቒाचेसंकेतही ्ा.
्ायालयानेनिदलेआहेत.
्ቓानुषंगाने्ा.
उ्ሴ्ायालयानेउपरो्ሹसंदभ ्ቅ.
३अ्ቝयेनिदले्ቡानिनदZशासअनुसरुनरा्ቋातीलनिश्ቌकेतरक्चा-यां्ा अनुकंपानिनयु्ሹीबाबत्ा्ቚ्ቜावांवरनिनणयघेतानाखालीलबाबींनुसार कायवाहीकर्ቒाबाबतसूनिचतकर्ቒातयेतआहे.
१) अनुकंपात्ावरनिनयु्ሹी्ቕावयाचेपदहेयापूवCच्ंजूरपदअस्ቡानेव अनुकंपातኚ᭽ावरीलपदभरतीहीनवीनभरतीनस्ቡानेतसेचअनुकंपा तኚ᭽ावरनिनयु्ሹीदेतानासंबंनि'तपदन्ቤानेनिन्ाणकेलेजातनस्ቡा्ुळे, अनुकंपात्ावरनिनयु्ሹीदे्ቒा्ा्ቚ्ቜावावरकायवाहीकरताना, पदभरती बंदीवाआकृनितबं' निननिVतनस्ቡा्ाकारणा्ቜव्ቚ्ቜावअ्ा्नकरता ्ቓावरगुणव्ቈेनुसारकायवाहीकरावी.
२) अनुकंपात्ावरनिनयु्ሹीदेताना, निनयु्ሹी्ቕावयाचाउ्ेदवारक्चारी ्ቋापदावरकायरतहोता्ቓापदावरनिनयु्ሹीसपा्ቔठरतनस्ቡास, ्ቓाis{kk खाल्ावगा्ाइतरपदावर्ቓासअनुकंपात्ाअंतगतस्ायोनिजतकरावे वयासाठीस्ቌ््ቚानि'कारीअशीपदेउपल्ቓआहेतनिकंवाकसेयाची शहानिनशाकरुनयाउ्ेदवारांनापा्ቔउ्ेदवारां्ा्ቚती्ቌायादी््ቖेस्ानिव्ቖ करतील.
३) ्ा.
उ्ሴ्ायालयानेन्ूदके्ቡानुसारअनितनिवलंबाने( सा'ारणतः वषानंतर) अनुकंपात्ቓावरनिनयु्ሹीबाबत्ागणीचे्ቚ्ቜावअनितनिवलंबा्ा कारणा्ቜव, सदरकुटुंबासयाचीआव्ብकतानस्ቡाचेवअनुकंपात्ाचा हेतूसा्ቖहोतनस्ቡा्ाकारणा्ቜवअ्ा्करतायेतील.
12/14 ४) उपरो्ሹसूचना्ቨाअनुकंपात्ावरीलनिनयु्ሹी्ाअनुषंगानेदाखल निवनिव' ्ायालयीन्ቚकरणी्ा.
्ायालयानेनिदले्ቡाआदेशांसअनुसरुन दे्ቒातयेतअस्ቡाने, याबाबतआव्ብकतीकायवाहीकरावीव्ा.
्ायालया्ाआदेशांचाअव्ानहोणारनाहीयाचीद्ቌता्ቇावी. यासंदभात ्ा.
्ायालया्ा आदेशांचा अव्ान झा्ቡास ्ቓास संबंनि'त अनि'कारी/ ्ቚानि'कारीजवाबदारराहतील.
५) एखाns ्ቤव्ቝापनअनुकंपात्ावरीलनिनयु्ሹीसाठीपा्ቔउ्ेदवाराचा ्ा्ह्ሪडावलीतअस्ቡाचेनिनदशनासआ्ቡाससंबंनि'तनिश्ቌणानि'कारी ;kauh संबंनि'त्ቤव्ቝापनानिवरुध्दनिनय्ानुसारकारवाईकरावी." 15.
The Division Bench of this Court at Principal Seat has dealt with this issue in Writ Petition No.7507/2016 (Smt. Samita Sameer Desai and anr. Vs. The State of Maharashtra and anr.) wherein also the petitioner therein was appointed on compassionate ground. The family was solely dependent upon the source of income of the deceased. The facts in that case indicate that the application of the wife of the deceased was considered and it was resolved to appoint her on compassionate basis in place of her deceased husband. An appointment order was issued in her favour. This Court has observed in paragraph No.9 which reads thus :
"9.
It is common ground that the appointment is sought by petitioner No.1 on compassionate ground. The very object and purpose of such employment and conferring a power to make appointment on compassionate ground is that the employer assists the family to tide over the financial crisis caused by the loss of bread winner. It is an assistance to the family and which is in distress. In the circumstances, this is not a fresh appointment or an appointment which ordinarily requires the approval. All that would suffice is an intimation
13/14 from petitioner No.2 that the husband of petitioner No.1 was already appointed as a Peon and that post was permanent and duly sanctioned. Having appointed him, it was revealed that he died suddenly on 2nd November, 2011. In his place, in terms of Government policy, compassionate appointment was sought and it is that appointment which has been made. There is no post created nor is there any question of an appointment being made through recruitment process which was covered by the ban. The ban, thus, could not have covered this appointment."
16.
The similar facts are in the present case also. This aspect is also considered by this Court in the case of Yogita w/o Shivsing Nikam Vs. State of Maharashtra and ors. (supra) where on a similar facts this Court has held that an employees who was already appointed on compassionate ground is unjustifiably refused approval. Thus, it is apparent that despite the legal position is clear, respondent No.3 made the petitioners to run from pillar to post for the approval of the services of petitioner No.3. The proposal was pending for the approval with respondent No.3 since 2013. All these years are spent by petitioner No.3 in agony without any reason.
We find that this Court has consistently taken a view that compassionate appointment would be an exception to the mandatory rule of following specific selection procedure for recruitment on vacant post or on newly created post. We have noticed the agony and the harassment caused to the litigants in the present case. It is the conduct of respondent No.3 which has deprived petitioner No.
14/14 candidate was defeated. In view of the above, this petition deserves tobe allowed. Hence we proceed to pass following order : (i) The impugned order/letter dated 10/01/2020 of refusing the approval, stands quashed and set aside. (ii) We direct respondent No.3 - the Education Officer (Secondary), Zilla Parishad, Nagpur to grant approval to the appointment of petitioner No.3 forthwith as "Peon" in petitioner No.2 - School with effect from 11/09/2013 and to release her remuneration and salary; all arrears and benefits within a period of six weeks from the date of this judgment. 17.
Rule made absolute in the above terms. No costs. (URMILA JOSHI-PHALKE, J.) (AVINASH G. GHAROTE, J.) *Divya