Abhijit S/O Manikrao Shrikhande v. State Of Maharashtra, Through Department Of General Administration, Mumbai And Others
2023:BHC-NAG:14426-DB
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
W RIT PETITION NO.1909 OF 2020 Shri Abhijit s/o Manikrao Shrikhande, Aged about 30 years, Occupation - Nil R/o. Shikshak Colony, Bhonde Plot, Near Rest House, Anjangaon Surji, Tq. Anjangaon Surji, District Amravati ...PETITIONER
VERSUS
1.
State of Maharashtra, through Department of General Administration, through its Secretary, Mantralaya, Mumbai - 32 2.
Zilla Parishad, Amravati through its Chief Executive Officer 3.
Deputy Chief Executive Officer, Zilla Parishad, Amravati ...RESPONDENTS ______________________________________________________ Mr. S.S. Shingane, Advocate for the petitioner. Mr. S.M. Ukey, Addl.G.P. for respondent No.1/State. Mr. Milind G. Rathi, Advocate for respondent Nos.2 and 3. ______________________________________________________
CORAM
:
AVINASH G. GHAROTE & URMILA JOSHI-PHALKE, JJ.
RESERVED ON :
SEPTEMBER 07, 2023 PRONOUNCED ON :
OCTOBER 04 , 2023 JUDGMENT (Per Urmila Joshi-Phalke, J.
) RULE. Rule made returnable forthwith. Heard finally with the consent of learned Counsel for the parties.
2.
By this writ petition, the petitioner is seeking declaration that he is eligible for compassionate appointment in respondent No.2 - Zilla Parishad, Amravati and direction to respondent No.2 to include the name of the petitioner in the list of the eligible candidates for compassionate appointment. The father of the petitioner Shri Manikrao Shrikhande was working as Assistant Teacher in Zilla Parishad Primary School who died on 30th December, 2009. As per the contention of the petitioner he is qualified as B.Sc. B.Ed. and Diploma in Construction Supervisor. In view of Government Resolution dated 16th October, 1994 present petitioner is eligible for the appointment on compassionate ground. The subsequent Government Resolution dated 21st September, 2017 also makes the present petitioner eligible for the appointment on compassionate ground.
Therefore, he filed an application on 6th April 2010 to the Education Officer, Zilla Parishad, Amravati for seeking compassionate appointment. Respondent No.2- Zilla Parishad published waiting list wherein the name of the petitioner was at serial No.51. The appointment to the petitioner was refused by the Education Officer on the ground that the brother of the petitioner is already in service, therefore, the petitioner is not complying with the requirement as there is no need of immediate succour to the petitioner or a financial crisis.
3.
As per the contention of the present petitioner, his brother is residing separately and not maintaining the family. During the pendency of proposal of compassionate appointment he was appointed in the State Bank of India. However, as he is residing separately and not maintaining the family, the petitioner who is residing along with his mother is facing the financial crisis. In view of Government Resolution, the policy was made by the Government to assist the family members of the deceased employee for their immediate succour which was not considered by the Education Officer while considering the claim of compassionate appointment. On 31st December, 2018, respondent No.2 issued notice by which information was sought whether any family member was recruited in Government or Semi-government employment. On 26th March, 2019, respondent No.
2 again issued notice and called the respondents for hearing as report of the Block Development Officer was received on 5th April, 2019. The petitioner was present before respondent No.2 for hearing along with consent letter. However, without considering the fact that the family of the deceased employee is facing financial crisis, on 11th April, 2019 proposal for compassionate appointment was rejected on the ground that brother of the petitioner is in Government service and there is no emergent need of the family.
the compassionate appointment to the petitioner is arbitrary, illegal and against the policy of the Government which is liable to be quashed and set side.
4.
Said contention is opposed by the learned Assistant Government Pleader on the ground that the enquiry report received from the Block Development Officer, Panchayat Samiti, Achalpur on 26th March, 2019 shows that the family member of the petitioner is already in Government service, the object of the compassionate appointment to give immediate succour to the family which is now not in existence and rightly rejected the claim. It is further submitted that mother of the petitioner had already received the pensionary benefits and the other emoluments which she was entitled to receive on account of death of the employee. As the immediate succour is not required now, therefore, the Chief Officer of Zilla Parishad has rightly rejected the application of the petitioner for compassionate appointment.
5.
Heard Mr. S. Shingane, learned Counsel for the petitioner, Mr. S.M. Ukey, learned Additional Government Pleader for respondent No.1/State and Mr. M.G. Rathi, learned Counsel for respondent Nos.2 and 3.
6.
Shri Shingane, learned Counsel for the petitioner submitted that the object behind the compassionate appointment is to give immediate succour to the family of the deceased employee. Admittedly, at the time of filing the application, nobody was in the service and the application was filed within time. The policy of 1994 gives right to the petitioner for compassionate appointment which was not considered by the Chief Officer, Zilla Parishad, Amravati. By the Government Resolution dated 21st September, 2017 also the petitioner has right for the compassionate appointment which was not considered by the Chief Officer of Zilla Parishad, Amravati. He submitted that the application of the petitioner was in time.
He was included in the waiting list also and subsequently, his name was deleted on the ground that his brother was appointed in the State Bank of India. In fact, his brother is staying separately and now he is not the part of the family. The financial requirement is still in existence, therefore, the petitioner is required to be considered for the compassionate appointment. Despite there is clear cut provision for the compassionate appointment in the Government Resolution, the Chief Officer has not considered the same and wrongly rejected the prayer of the petitioner for compassionate appointment. 7.
Per Contra, learned Assistant Government Pleader submitted that the object behind providing appointment on compassionate ground
by way of exception to the general rule of appointment. The object is to give immediate succour to the family of the deceased employee. Therefore, whether the family is indigent or not is to be ascertained, and therefore, enquiry was held and it was revealed that the family member of the petitioner is in a Government service and now the aspect of the immediate succour is not in existence, therefore, the compassionate appointment is rightly rejected. Learned Counsel for respondent No.2 endorsed the same contention and submitted that the order passed by the Chief Officer, Zilla Parishad, Amravati.
8.
There is no dispute that public employment in offices or posts under the State must be in accordance with statutory rules or in their absence, as per the instructions of the executive issued for regulating recruitment. The whole object of granting compassionate employment by an employer being intended to enable the family members of a deceased employee to tide over the sudden financial crisis, appointments on compassionate grounds should be made immediately to assist the family in distress. As far as the legal position is concerned, there is no dispute that none can claim a compassionate appointment by way of right or inheritance. It is a concession and not a right and the criteria laid down in the Rules must be satisfied by all the applicants who are the aspirants. An employer cannot be compelled to make an appointment
on compassionate ground contrary to its policy. Therefore, 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. The dependent must fulfill the eligibility criteria for such appointment. There is no dispute as far as the legal proposition of law is concerned as settled by the Hon'ble Apex Court for appointment on compassionate ground that policy relevant at the time of death of the deceased employee is required to be considered and not the subsequent policy.
9.
In the light of above legal position, if the case of the present petitioner is considered there is no dispute that father of the petitioner was serving as an Assistant Teacher in Zilla Parishad Primary School. He died on 30th December, 2009. Thereafter the petitioner approached to the Education Officer by filing an application on 6th April, 2010 for seeking compassionate appointment on the establishment of Zilla Parishad, Amravati. There is no dispute as far as the educational qualification is concerned that the application was initially taken into consideration by respondent No.2 - Zilla Parishad and the name of the present petitioner was included in the waiting list at serial No.51. During the pendency of the proposal of the present petitioner, his brother - Aniket was appointed in State Bank of India. While considering the
proposal for appointment on compassionate ground to ascertain the financial condition of the present petitioner, respondent No.2 inquired with the relevant persons and it revealed that the brother of the petitioner namely Aniket was appointed in the State Bank of India. It further revealed that the mother of the present petitioner received the pensionary benefits as well as amount towards gratuity, GPF, Group Insurance Scheme, etc. as well as pension was also sanctioned to her. The Block Development Officer has submitted his report from which it was reflected that now the issue regarding the financial succour is not in existence, and therefore Chief Executive Officer, Zilla Parishad, Amravati decided to delete the name of the present petitioner. 10.
Learned Counsel placed reliance on the Government Resolution dated 26th October, 1994 which shows that the policy to appoint the dependents of the deceased employee was introduced by the Government with intention to render some assistance to the family members of the employees who are left in distress due to the death of the said employee. The Schedule 'A' of the Government Resolution which is reproduced hereunder :
"
परिशि्ቖ"अ"
1.
महाा्ቖ्र ा्ቋासना्ास्ብ काኋालኋातअनुकंपाकाणा्ቜ्ብ का्ብኋा्ानेमणुकांनाहेशिनኋमलागूाहतील.
2.
खालील्ቚकाांम्ቖेमोडणाऱ्ኋाासकीኋकमचाऱ्ኋांचे(रूपांतरित ्ቝाኋी्ብअ्ቝाኋीआ्ቝापने्ብीलकमचाी्ብरून)
3.
(अ) ኋेथीलनाते्ብाईकኋाशिनኋमानुसा अनुकंपाकाणा्ቜ्ብासकीኋ से्ብेतनेमणुकीसाठीपा्ቔअसतील:- (अ) ासकीኋसे्ብेतअसतांनाशि,्ብंगतझालेलेकमचाी, (ब) ्ቌኋ, कक ोग इ्ቓा,ी गंभी आजाामुळे, स्ቌम ्ብै्ቕकीኋ अशि7काऱ्ኋां्ा ्ቚमाणप्ቔानुसा अकाली शिन्ብृ्ቈ झालेले अशि7काी/कमचाी, (क) मानशिसकशिकं्ብााीरिकशि्ብकलांगताआ्ቡाने, स्ቌम्ብै्ቕकीኋ अशि7काऱ्ኋाने पुढील से्ብेसाठी अ्ቌम ठशि्ብ्ቡाने, अकाली शिन्ብृ्ቈ क्ቒातआलेलेशिकं्ብा्ብीलकाणा्ቜ्ብसे्ብेतूनकाढूनटाक्ቒात आलेलेकमचाी, (ड) ासकीኋसे्ብेतकत्ቤबजा्ብीतअसतानाअपघातानेअपंगझालेले पंतुमहाा्ቖ्रनागीसे्ብा( शिन्ብृ्ቈी्ብेतन) शिनኋम1982 म7ीलशिनኋम72 (3) अनुसा पኋाኋीप, ,ेऊकरूनहीतेन्ቭीकातासे्ብाशिन्ብृ्ቈी ्ቭीकाणाेकमचाी.
3.
(अ) शि,्ብंगत/ अकालीशिन्ብृ्ቈासकीኋकमचाऱ्ኋांचीपती/प्ቌी, मुलगा शिकं्ብाअशि्ብ्ብाशिहतमुलगीअथ्ብामृ्ቓूपू्ብC/ अकालीसे्ብाशिन्ብृ्ቈीपू्ብC काኋ,ेी रि्ቓा,्ቈकघेतलेला/ घेतलेलीमुलगा/ अशि्ብ्ብाशिहतमुलगीहीशिनኋमानुसा नेमणुकीसपा्ቔनाते्ብाईकमान्ቒातኋेतील.
ኋाशि्ብाኋअ्कुठ्ቡाही नाते्ብाईकासኋाኋोजनेचाफाኋ,ाशिमळणा नाही.
(ब) स, नेमणूकासकीኋकमचाऱ्ኋा्ाफ्ሹएकाचनाते्ብाईकास ,ेताኋेईल.
4.
(अ) अनुकंपात्ा्ብ संबंशि7तनातलगाचीै्ቌशिणकपा्ቔता्ብ्ብኋ ኋानुसा ा्ቋासनांतगतकोण्ቓाहीगट"क"
्ብगट"ड"
्ቦेणी्ासळसे्ብा ्ቚ्ብेानेभ्ቡाजाणाऱ्ኋाप,ा्ብ शिनኋु्ሹीकताኋेईल. ኋाशिनኋमानुसा शिनኋु्ሹी शिमळ्ቒासाठी महाा्ቖ्र लोकसे्ብा आኋोगा्ा ्ቢ7ा पी्ቌेस बस्ቒाची आ्ብ्ብकतानाही.
तसेच्ብीलशिनኋमानुसा स, प,ां्ብ नेमणूकक्ቒासाठी महाा्ቖ्रलोकसे्ብाआኋोगाचास्ቤाघे्ቒाचीआ्ብ्ብकतानाही. मा्ቔ, लोकसे्ብा आኋोगा्ाक्ቌेतीलपोलीसउपशिनी्ቌक, शि्ብ्ቅीक शिनी्ቌक, मोटा ्ብाहन उपशिनी्ቌक, ेंज्ብनअशि7काी, कशिन्अशिभኋंता, सहा्क्ብै्ቕकीኋअशि7काी इ्ቓा,ीगट"क"
म7ीलकाኋकाी(एሲኌSझ्ቄूशिट्ቮ) प,ां्ብ तसेचमं्ቔालኋातील सहा्कप,ां्ብ शिनኋु्ሹी,ेताኋेणा नाही.
(ब) संबंशि7तप,ांसाठीशि्ብशिहतै्ቌशिणकपा्ቔताआशिणशिन्ቖ्ብኋोमኋा,ा ኋाबाबत्ाअटीኋानेमणुकांसाठीकटा्ቌानेपाळ्ቒातኋेतील. पंतुउ्ሴ ्ብኋोमኋा,ेचीअटाहणा नाही.
(क) तथाशिप, शि,्ብंगत/ अकालीशिन्ብृ्ቈकमचाऱ्ኋांचीप्ቌीै्ቌशिणकपा्ቔते ्ቤशितरि्ሹइत अटीपूण कीतअस्ቡासशित्ाबाबतीतगट"ड" म्ቖे नेमणुकीसाठीै्ቌशिणकपा्ቔतेचीअटशिशिथलकताኋेईल. 5.
(अ) अनुकंपाकाणा्ቜ्ብनेमणुकीसाठीचाअज ासकीኋकमचाी शि,्ብंगत/ अकालीशिन्ብृ्ቈझाले्ቡाशि,्ብसापासूनपाच्ብቧኋाचेमु,तीतकणे आ्ብ्ብकअसेल.
(ब) शि,्ብंगत/ अकालीशिन्ብृ्ቈकमचाी्ቋाकाኋालኋातकामकीत होता, ्ቓाकाኋालኋातीलसंबंशि7तशिनኋु्ሹी्ቚाशि7काीኋाशिनኋमानुसा नेमणूक ,े्ቒासस्ቌमाहील.
्ቓासाठी्ቓानेशिन्ብडसशिमतीचास्ቤाघेणेआ्ብ्ብक नाही. मा्ቔ, नाते्ብाईकाने स, ्ቚाशि7काऱ्ኋांकडे उपीशिनशि,्ቖ मु,तीत नेमणुकीसाठीअज कणेआ्ብ्ብकाहील.
6.
(अ) संबंशि7तकाኋालኋातआ्ብ्ብकप, उपल्ቓनसेलत काኋालኋ ्ቚमुखांनी्ቓाशिजल््ቨातील/ शि्ብभागातीलइत काኋालኋा्ाशिनኋु्ሹी्ቚाशि7काऱ् ኋांकडेसंपक सा7ा्ብा्ብ्ቋाकाኋालኋातआ्ብ्ብकप, उपल्ቓअसेल्ቓा काኋालኋाम्ቖेशिनኋु्ሹीसाठीशि्ብचा का्ብा.
(ब) जेकाኋालኋ्ቚमुख/ शि्ብभाग्ቚमुख्ቓां्ाकाኋालኋात/शि्ብभागात उपल्ቓअसले्ቡाप,ांचीमाशिहतीኋामाशिहतीचीशि्ብचाणाकणाऱ्ኋाकाኋालኋ ्ቚमुखास/ शि्ብभाग ्ቚमुखास ,ेणा नाहीत, अा काኋालኋ ्ቚमुख/शि्ብभाग ्ቚमुखांशि्ብरु्ቍशि्ቜभंगाचीका्ብाईक्ቒातኋेईल. (क) स्ብ काኋालኋ्ቚमुखांनी/ शि्ብभाग्ቚमुखांनी्ቓां्ाकाኋालኋात/ शि्ብभागातअनुकंपात्ा्ብ शिनኋु्ሹीकताआले्ቡाएकूणअजा_चीसं्ቅा ्ቚ्ቓ्ቌातशिनኋु्ሹी,े्ቒातआले्ቡाउमे,्ብाांचीसं्ቅा, तसेचअनुकंपात्ा्ብ शिनኋु्ሹीकरितासंबंशि7तकाኋालኋात/ शि्ብभागातशिनኋु्ሹीकेले्ቡा/ ्ቚशित्ቌाኋा,ी्ብ असले्ቡाउमे,्ብाांचीमाशिहतीसोबत्ा"क"
शि्ብ्ብणप्ቔातसंबंशि7त्ቚासकीኋ शि्ብभागाकडे, सहामशिह्ांनीपाठशि्ብणेबं7नकाकाहील. ኋाशिनኋमानुसा असा31 शिडसेंब 1993 चीሲኌ्ቝती,शि्ብणाासहामाहीअह्ብाल15 जाने्ብाी पኋ_तपाठ्ብा्ብा.
7.
(अ) अनुकंपातኚ᭽ा्ብ शिनኋु्ሹीकरितामाशिसकउ््ቐाचीतसेचठोक कमेचीमኋा,ाኋापुढेाहणा नाही.
(ब) अनुकंपात्ा्ብ शिनኋु्ሹी,ेतानाअसे्ቚ्ቜा्ብासनसे्ብेतील ोजगाा्ብ असलेलीमኋा्ቕा्ाኋोजने्ामागीलभूशिमकाल्ቌातघेऊनजो कमचाीमृतझाला्ቓा्ाकुटुंबीኋांनात्ሹाळउ्ቓ्ብणाऱ्ኋाआशिथकपेच ्ቚसंगा्ብ मातक्ቒा्ाउ्ቌेानेशि्ብचाात्ቇा्ብेत. एखा्ቕाकुटुंबातमृतकमचाऱ्ኋांचानाते्ብाईकपू्ብCचसे्ብेतअसेल, तथाशिपतो्ቓा्ाकुटुंबातीलअ्स,्ቧांनाआ7ा ,ेतनसेलत अा
्ቚकणात्ቓाकुटुंबाचीआशिथकपरिሲኌ्ቝतीहलाखीचीआहेशिकं्ብाकसेहे ठशि्ብतांनाशिनኋु्ሹीअशि7काऱ्ኋानेअ्ቓाशि7क,्ቌता्ቇा्ብी, जेणेकरूनसे्ብेत असलेलास,्ቧकुटुंबाचाउ,शिन्ብाहकीतनाहीኋाना्ብाखालीअनुकंपा त्ा्ብीलशिनኋु्ሹीचा,ुरुपኋोगकेलाजाणा नाही.
ኋासं,भातशिनኋु्ሹीअशि7काऱ्ኋानेशिमळणाऱ्ኋाशिन्ብृ्ቈी्ብेतनाची्ሪम, कुटुंबातील्ቤ्ሹींचीसं्ቅा, ्ቓाचीमालम्ቈा, ,ाशिኋ्, गंभी आजाामुळेशिकं्ብा अपघातामुळेमृतझालाअस्ቡास्ቓासाठीक्ቒातआलेला्ብै्ቕकीኋखच, कुटुंबातीलशिमळ्ብ्ቓा्ቤ्ሹीइ्ቓा,ीबाबीशि्ብचाातघेणेअपेशि्ቌतआहे. 8.
उपो्ሹ4(क) ्ቤशितरि्ሹकोण्ቓाहीअटीशिशिथलक्ቒाची्ሹी ासनाकडेाहणा नाही."
11.
Learned Counsel further placed reliance on the Government Resolution dated 21st September, 2017. Undisputedly, this Government Resolution is not applicable in the case of the present petitioner as death of the deceased was on 30th December, 2009 and the application was filed on 06th April, 2010. In view of well settled legal position, the policy which was in existence at the relevant time is to be considered and any appointment on compassionate ground has to be made in terms of the scheme therein and not otherwise. Subsequently, Government Resolution dated 22nd August, 2005 was introduced and the earlier Government Resolution of 1994 was revised. In view of the said Government Resolution also the object was to give immediate succour to the family members of the employees. Thus, one of the condition which was required to be considered for appointment on the compassionate ground is that whether the family is in need of immediate succour and whether the family is in a financial distress. Therefore, the enquiry was carried
out and it revealed that now the ground of immediate succour is not in existence as one of the family member has already joined the Government service and there is assistance to the family. 12.
Admittedly, the application was filed on 06th April, 2010 and the petition is filed in the year 2020 i.e. after 10 years. As observed by the Full Bench of this Court in Nilima Raju Khapekar Vs. Executive Director, Bank of Baroda and others, [2022(3) Mh.L.J. 441] that 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, appointments on compassionate ground should be made immediately to redeem the family in distress.
While considering this aspect the Full Bench had considered various judicial decisions rendered by this Court as well as by the Apex Court and held that the family members of employee dying-in-harness have to demonstrate indigence only upon a satisfaction being reached that the family, being indigent, needs immediate succor by way of an appointment on compassionate ground, it may proceed to determine eligibility on the other counts. This aspect is further considered by the Hon'ble Apex Court recently in the case of State of West Bengal Vs. Debabrata Tiwari and ors.
Nagpal vs. State of Haryana, [(1994) 4 SCC 138] that the object of granting compassionate employment is to enable the family of a deceased government employee to tide over the sudden crisis by providing gainful employment to one of the dependents of the deceased who is eligible for such employment. That mere death of an employee in harness does not entitle his family to such source of livelihood; the Government or the public authority concerned has to examine the financial condition of the family of the deceased and it is only if it is satisfied that, but for the provision of employment, the family will not be able to meet the crisis, that a job is to be offered to the eligible member of the family, provided the scheme or rules provide for the same.
This Court further clarified in the said case that compassionate appointment is not a vested right which can be exercised at any time after the death of a government servant. That the object being to enable the family to get over the financial crisis which it faces at the time of the death of the sole breadwinner, compassionate employment cannot be claimed and offered after lapse of considerable amount of time and after the crisis is overcome.
considerable period of time of the death of the government employee. In the case of Fertilizers and Chemicals Travancore Ltd. and ors. Vs. Anusree K.B. (2022 LiveLaw (SC) 819) also the Hon'ble Apex Court has held that after a period of 24 years from the death of the deceased employee, the respondent shall not be entitled to the appointment on compassionate ground. If such an appointment is made now and/or after a period of 14/24 years, the same shall be against the object and purpose for which the appointment on compassionate ground is to be provided.
13.
Admittedly, the whole object of granting compassionate employment is, thus, to enable the family to tide over the sudden crisis. The object is not to give such family the appointments by making exception to the general rule. Admittedly, a compassionate appointment is an exception to the general rule of appointment where the breadwinner dies in leaving his family in penury and without any means of livelihood, and in such cases, out of pure humanitarian consideration taking into consideration the fact that some source of livelihood is to be provided due to which the family would be able to make their life to meet the financial crisis. Applying the law laid down by the Hon'ble Apex Court and also by this Court in various decisions to the facts of the case on hand and considering that the purpose for which the
appointment on compassionate ground is provided, the petitioner shall not be entitled to the appointment on compassionate ground after a period of 12 to 13 years from the date of demise of the deceased employee as now that immediate succour required by the family is not in existence. If such appointment is made after a period of 12 to 13 years it would be against the object and purpose for which the appointment on compassionate ground is provided.
14.
Under these circumstances, the petition of the petitioner deserves to be dismissed.
15.
Hence, the petition is dismissed with no order as to costs. 16.
Rule stands discharged.
(URMILA JOSHI-PHALKE, J.) (AVINASH G. GHAROTE, J.) *Divya