Hemant Gajanan Pande v. Education Officer (Secondary), Zilla Parishad, Amravati And Another
2023:BHC-NAG:13290-DB 1/13
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.4994 OF 2022 Hemant Gajanan Pande Age - 25 years, Occupation - Service, R/o. Samarth Nagar, Anjangaon Surji, Tq. Anjangaon Surji, District Amravati ...PETITIONER
VERSUS
1.
Education Officer (Secondary) Zilla Parishad, Camp, Amravati, Tq. & District Amravati 2.
Indira Gandhi Secondary and Higher Secondary School, Dahigaon Recha, through its Headmaster, R/o. Dahigaon Recha, Tq. Anjangaon Surji, District Amravati ...RESPONDENTS _______________________________________________________ Mr. P.S. Patil, Advocate for the petitioner.
Mrs. K.S. Joshi, Additional Government Pleader for the State. _______________________________________________________
CORAM
:
AVINASH G. GHAROTE & URMILA JOSHI-PHALKE, JJ.
RESERVED ON :
SEPTEMBER 01, 2023 PRONOUNCED ON :
SEPTEMBER 07, 2023 JUDGMENT (Per Urmila Joshi-Phalke , J.
) RULE. Rule made returnable forthwith. Heard finally with the consent of learned Counsel for both the parties.
2/13 2.
By this petition, the petitioner has approached to this Court with prayer to direct respondent No.1 - the Education Officer (Secondary), Zilla Parishad, Amravati to grant approval to the appointment of petitioner as a "Peon" in respondent No.2 - School, in terms of letter dated 20/09/2019.
3.
The respondent No.2 is the School run by Dayaram Shikshan Sanstha and recognized by Education Department and receiving 100% grant-in-aid. The father of the petitioner namely Late Gajananrao Pande was working in respondent No.2 - School. He expired on 13/09/2007. At the time of his death, the petitioner was minor. The mother of the petitioner namely Smt. Kiran Pande moved an application to respondent No.2 - School for grant of appointment on compassionate ground. As she was not appointed, she filed Writ Petition No.4399/2014 before this Court. This Court vide its judgment dated 15/06/2016 granted leave to her to make an appropriate representation for seeking appointment on compassionate ground and also directed the petitioner that the copy of said representation should be given to the Education Officer. As per the directions of this Court, mother of the petitioner tendered the representation to the office of respondent No.1 However, no decision was taken. Due to the non-compliance of the order and direction, the mother of the petitioner had filed Contempt Petition no.66/2019.
3/13 Thereafter respondent No.1 issued notices to the Headmaster of respondent No.2 - School and directed to conduct the hearing. The hearing was conducted on 29/04/2019 but no decision was communicated to the mother of the petitioner. In the meantime, mother of the petitioner gave her consent to substitute the name of her son i.e. the petitioner for the compassionate appointment along with her consent letter. Respondent No.2 considered the request and issued the appointment order on 23/06/2019. Accordingly, the petitioner has joined the service in respondent No.2 - School on 26/06/2019. 4.
After the joining of the petitioner, on 28/08/2019 respondent No.2 forwarded the proposal of approval to the office of respondent No.1 - Education Officer along with all necessary documents. Respondent No.2 has clarified that when mother of the petitioner requested for appointment on compassionate ground at that time the post of the peon was not available in the School. But thereafter two posts of Peon are lying vacant in the School, and therefore, requested to grant the approval to the appointment of the petitioner. Respondent No.1 rejected the approval on the ground that as per the Government Resolution dated 28/01/2019, the revised staff approval is not sanctioned by the State Government and secondly on the ground that in the staff justification in academic year 2018-2019, four posts of nonteaching staff are not sanctioned.
4/13 5.
Being aggrieved with the same, present petitioner approached to this Court on the ground that respondent No.1 while deciding the issue of approval ought to appreciate the directions issued by this Court. Moreover, the compassionate appointment is an exception to the mandatory Rule of following specific selection procedure for recruitment on vacant post or on newly created post. As such no Government Resolution pertaining to ban on recruitment, stay on filling up vacant post and prohibition on appointments until the staffing pattern of the non-teaching post is formalised, is not applicable to the appointment made on compassionate ground.
6.
Said petition is opposed by the respondents by making an oral submissions.
7.
Heard Shri P.S. Patil, learned Counsel for the petitioner. 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 the 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 refused the approval. He further placed
5/13 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 petitioner is covered and directions are required to be issued to respondent No.1, to grant the approval.
8.
Shri M.K. Pathan, learned Assistant Government Pleader for the respondent No.1 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.
9.
The issue involved in the present petition is that whether the refusal by the Education Officer to the approval of the appointment of petitioner 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
6/13 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. The purpose for which compassionate appointment 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. 10.
In the present case, respondent No.2 considered these aspects. There is no dispute that the father of the petitioner was
7/13 appointed on a sanctioned post. It is also undisputed that he died during his service on 13/09/2007 leaving behind present petitioner and his mother. The respondent No.2 had considered these aspects and granted the appointment to the petitioner on 23/06/2019. The petitioner has joined the service on 26/06/2019 as "Peon" on compassionate ground. The post was sanctioned post and had become vacant because of the death of his father. While submitting the proposal regarding approving the service of petitioner, respondent No.2 clearly mentioned that at the time of application received from mother of the petitioner there was no vacant post. But now there are two vacant posts and the approval needs to be granted. However, the Education Officer i.e. respondent No.1 had not considered the said aspect and rejected the approval on the ground that revised staff approval is not sanctioned by the State Government and secondly on the ground that in the staff justification four posts of non-teaching staff are not sanctioned. 11.
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.
8/13 12.
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) '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.
9/13 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.
७.
शाळावअ्ቖापकनिवदयालयातीलरु.५,५००-९, ०००यावेतन्ቦेणी पयNत्ासव पदांनाअनुकंपात्ावरनिनयु्ሹीदेतायेईल. तसेचजीपदे भर्ቒासशासनाने्ंजुरीनिदलेलीआहेअशाचपदावरीलनिनयु्ሹीदे्ቒासाठी हेआदेशलागूराहातील.
हेआदेशसा्ा््ቚशासननिवभाग, निव्ቈनिवभागा्ासह्तीने वनिव्ቈनिवभागा्ाअनौपचारिरकसंदभ ्ቅ्ांक८९२/०२/्ቤय-६, निदनांक ३.७.
२००२अ्वेनिनगनि्तकर्ቒातयेतआहेत.
्हारा्ቖ्राचेरा्ቋपालयां्ाआदेशानुसारवनावाने." 13.
Thus, the Government Resolution dated 31/12/2002 lays down the parameters to be applied for appointment of an eligible candidate, on compassionate basis.
14.
Respondent No.2 had considered all these aspects and considering that the family of the deceased is in distress provided the appointment to petitioner subject to the approval of respondent No.1. 15.
The Section Officer, State of Maharashtra issued Notification dated 14/09/2022 which makes a reference that the post on which the
10/13 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 :
"
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.
11/13 ३) ्ा.
उ्ሴ्ायालयानेन्ूदके्ቡानुसारअनितनिवलंबाने( सा'ारणतः वषानंतर) अनुकंपात्ቓावरनिनयु्ሹीबाबत्ागणीचे्ቚ्ቜावअनितनिवलंबा्ा कारणा्ቜव, सदरकुटुंबासयाचीआव्ብकतानस्ቡाचेवअनुकंपात्ाचा हेतूसा्ቖहोतनस्ቡा्ाकारणा्ቜवअ्ा्करतायेतील.
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." 16.
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
12/13 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 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."
17.
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 are already appointed on compassionate ground is unjustifiably refused approval. Thus, it is apparent that despite the legal position is clear, respondent No.1 made the petitioner to run from one pole to another for the approval of the services of petitioner. The proposal was pending for the approval with respondent No.1 since 2019. All these years are spent by petitioner 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
13/13 and the harassment caused to the litigants in the present case. It is the conduct of respondent No.1 who deprived petitioner from getting the fruits of her employment, and the right of eligible candidate was defeated. In view of the above, this petition deserves to be allowed. Hence we proceed to pass following order :
(i) The impugned order/letter dated 20/09/2019 of refusing the approval, stands quashed and set aside. (ii) We direct respondent No.1 - the Education Officer (Secondary), Zilla Parishad, Amravati to grant approval to the appointment of petitioner forthwith as "Peon" in respondent No.2 - School with effect from 23/06/2019 and to release her remuneration and salary; all arrears and benefits within a period of six weeks from the date of this judgment. 18.
Rule made absolute in the above terms. No costs. (URMILA JOSHI-PHALKE, J.) (AVINASH G. GHAROTE, J.) *Divya