Bombay High Court
Smt. Uma Wd/O Kuleshawar Kuranjekar And ... vs The State Of Maharashtra, Department Of ... on 4 October, 2023
Author: Avinash G. Gharote
Bench: Avinash G. Gharote
2023:BHC-NAG:14592-DB
1 wp2865.2022.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 2865/2022
PETITIONERS: 1] Smt. Uma wd/o Kuleshawar
Kuranjekar, A/a-45 years,
Occu- Household Work.
2] Vaibhav s/o Kuleshawar Kuranjekar,
A/a-17 Yrs., Occu: Student.
Both R/o Shankalpa Nagar, Gondia
Road, Amgaon, Tah. Amgaon,
District Gondia.
The petitioner No.2 being minor
through her mother, the petitioner
No.1.
...V E R S U S...
RESPONDENTS 1] The State of Maharashtra,
Department of village Development
and Water Conservation, through it
Secretary, Mantralaya, Mumbai.
2] The State of Maharashtra,
the Department of General
Administration through its Secretary,
Mantralaya, Mumbai.
3] The Zilla Parishad, Gondia,
Tah. & District Gondia, through its
Chief Executive Officer.
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Mr. V.R. Borkar, counsel for petitioner.
Mr. M.K. Pathan, A.G.P. for Respondent Nos. 1 and 2
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2 wp2865.2022.odt
CORAM : AVINASH G. GHAROTE &
URMILA JOSHI-PHALKE, JJ
DATE OF RESERVE : 30/08/2023
DATE OF DECISION : 04/10/2023
JUDGMENT :(PER : URMILA JOSHI-PHALKE,J.)
1. Rule. Rule made returnable forthwith. Heard finally by the consent of the parties.
2. By this petition, the petitioners are seeking directions to the Respondent No.3 to decide the application of Petitioner No.1, to substitute the name of the Petitioner No.2 in the waiting list of compassionate appointment, in place of Petitioner No.1.
3. The deceased Kuleshwar Bhyalal Kuranjekar was serving in the primary school of Respondent No.2 since 1992. He died on 02/10/2013, leaving behind Petitioner No.1- Widow and Petitioner No.2-Son, and one Daughter. As Petitioner No.1 attended the age of 45 years in April-2020, she applied to substitute the name of her son to be included in the waiting list.
4. As per the contention of the petitioners as per the Government Policy for compassionate appointment, which is to assist the families of the deceased employees, who died during service, so that they should not be starved. In view of that after the death of the deceased, the present petitioners 3 wp2865.2022.odt approached Respondent No.3 for the appointment of the petitioner No.2 on compassionate grounds. Though the application was filed within the limitation by Petitioner No.1, it was not considered. Thereafter, Petitioner No.1 filed an application on 14/01/2020 to substitute the name of Petitioner No.2 in her place in the waiting list, her name appeared in waiting list at Sr. No. 516 of dated 01/01/2019.
5. The petitioners contended that, though the policy is made by the Government to provide the appointment on compassionate grounds, the respondents have not considered the same, and not included the name of the Petitioner No.2 in the waiting list. Therefore, they are seeking directions to Respondent No.3 to substitute the name of Petitioner No.2 in place of Petitioner No.1.
6. The said petition is strongly opposed by Respondent No.3 on the ground that there is no provision of substitution in the Government Resolution dated 20/05/2014. In the absence of the provision, the said application is not maintainable and therefore, it was not considered and prays for dismissal of the petition.
7. Heard Mr. V.R. Borkar, learned counsel for the petitioner. He submitted that un-disputatedly the father of Petitioner No.2 was serving in the Primary School of Respondent No.2 since 1992. He died on 02/10/2013 immediately, Petitioner No.1 has filed an application. Though 4 wp2865.2022.odt her name was taken in the waiting list, no appointment was provided to her. As she was on the verge of attaining the age of 45 years, she filed an application with Respondent No.3 to substitute the name of Petitioner No.2 in a waiting list. At the relevant time, her name was added at Sr. No. 516. The representations are not considered by Respondent No.3 and remain unanswered. She submitted that since 2013, Respondent No.3 had neither considered the claim of Petitioner No.1 to appoint her on compassionate grounds nor Petitioner No.2 is included in the waiting list. She submitted that the action on the part of the Respondent No.3 is arbitrary.
8. In respect of his contention, he placed reliance in the case of Dnyaneshwar s/o Ramkishan Musane V/s State of Maharashtra and others reported in 2020 (5) Mh.L.J. 381 , wherein it is held that the Government Resolution dated 20/05/2015, we are of the view that the prohibition imposed by the Government Resolution dated 20/05/2015 that name of any legal representative of deceased employee would not be substituted by any other legal representative seeking appointment on compassionate ground, is arbitrary, irrational and unreasonable and violates the fundamental rights guaranteed by Article 14 of the Constitution of India. He submitted that this Court has held the said resolution dated 20/05/2015, as unjustified and directed to be deleted. In 5 wp2865.2022.odt view of that the name of the present petitioner No.2 is to be substituted in the name of petitioner No.1.
9. Per contra, learned AGP Mr. M.K.Pathan for the respondents/State submitted that there is no provision in the Government Resolution to substitute the name of the present petitioners in place of the Petitioner No.1. He submitted that in fact, the judgment of Dnyaneshwar s/o Ramkishan Musane referred (supra) prohibition clause in Government Resolution dated 20/05/2015 is held to be unjustified and directed to be deleted. As far as the present petitioners are concerned, the deceased employee died on 02/10/2013, therefore, the Policy of 2015 is not applicable to the present petitioners, they are covered by the Government Resolution dated 06/12/2010, wherein there is neither prohibition nor any provision is made to substitute the name of other family members in the name of the applicant.
He submitted that compassionate appointment is a concession given to the legal heirs of the employees. It is not a right and the criteria laid down in the rules must be satisfied and employer cannot be compelled to make an appointment on compassionate grounds contrary to its policy, as there is no provision in the Policy, the petitioners cannot claim any benefit of substitution of name under the said Policy.
10. Having heard both the sides and on perusal of the 6 wp2865.2022.odt record, it reveals that by this petition, present petitioners are claiming the directions to substitute the name of the Petitioner No.2 in place of Petitioner No.1. There is no dispute that deceased Kuleshwar Bhyalal Kuranjekar was serving in Zilla Parishad, Primary School, Sarkartola, Panchayat Samitee, Amgaon. He died on 02/10/2013 when he was in service. There is no dispute that Petitioner No.1 applied for the compassionate appointment on 13/11/2013, her name was included in the waiting list at Sr. No. 127. As she was on the verge of attaining the age of 45, she applied by filing an application on 14/01/2020 to substitute the name of her Son in the waiting list, which was under
consideration with Respondent No.3. As Respondent No.3 has not taken any decision, the petitioners approached in this Court for directions.
11. The object underlying a provision for the grant of compassionate employment is to enable the family of the deceased employee to tide over the sudden crisis due to the death of the bread-earner which has left the family in penury and without any means of livelihood. Out of pure humanitarian considerations and having regard to the fact that unless some source of livelihood is provided, the family would not be in a position to make both ends meet, a provision is made for giving gainful appointment to one of the dependents of the deceased, who may be eligible for such
7 wp2865.2022.odt appointment. Having regard to such an object, compassionate appointments are to be made. There can perhaps be no dispute on the score, that public employment in offices or posts under the State or its instrumentalities or any other authority covered by Article 12 of the Constitution must be in accordance with the statutory rules or in their absence, in tune with the executive instructions issued for regulating recruitment. The appointment of compassionate ground which is offered on humanitarian grounds, is an exception to the above rule of equality in the matter of public employment.
12. The full bench of this Court had considered the entire object of the compassionate appointment in case of Smt. Nilima Raju Khapekar -Vs- The Executive Director, Bank of Baroda in Writ Petition No. 3907/2021 decided on 22/4/2022 and also considered the various decisions including the decision in the case of State of Chhattisgarh Vs. Dhirjo Kumar Sengar reported in (2009) 13 SCC 600 , wherein it is held that none can claim compassionate appointment by way of inheritance.
In Steel Authority Of India Ltd vs Madhusudan Das & Ors reported in (2008) 15 SCC 560 , wherein it is held that compassionate appointment is a concession, not a right and the criteria laid down in the Rules must be satisfied by all the aspirants. None can claim compassionate 8 wp2865.2022.odt appointments on the occurrence, as if, it were a vested right, and any appointment without considering the financial condition of the family of the deceased is illegally impermissible.
In Kendriya Vidyalaya Sangathan and others vs. Dharmendra Sharma, reported in (2007)8 SCC 148 , wherein it is held that an employer cannot be compelled to make an appointment on compassionate grounds, contrary to its policy also. Thus, the whole object of the scheme of compassionate appointment is in regard to the satisfaction that the family members have been facing financial distress entitled appointment on compassionate grounds may assist them to tide over such distress is not enough, a dependent must fulfill the eligible criteria for appointment.
In Smt. Sushma Gosain and others Vs. Union of India and others reported in (1989)4SCC468 , wherein the Hon'ble Apex Court observed that in all the claims for appointments on compassionate grounds, there should not be any delay in appointment. The purpose of providing an appointment on compassionate grounds is to mitigate the hardship caused due to death of the bread-earner in the family. Such appointments should, therefore, be provided immediately to redeem the family in distress.
13. In Umesh Kumar Nagpal vs. State of Haryana and Others (1994) 4 SCC 138 , this Court observed that the 9 wp2865.2022.odt object of granting compassionate employment is to enable the family of a deceased government employee to tideover the sudden crises by providing gainful employment to one of the dependent of the deceased, who is legible for such employment. That the 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. The object is to enable the family to get over the financial crises which it faces at the time of the death of the sole bread winner, compassionate employment cannot be claimed and offered after lapse considerable amount of time and after the crises is overcome.
14. In Haryana State Electricity Board vs Hakim Singh reported in (1997) 8 SCC 85 , wherein much emphasis was on the need for immediacy in the manner in which the claims for compassionate appointment are made by the dependents and decided by the concerned authority. The 10 wp2865.2022.odt Hon'ble Apex Court Court cautioned that it should not be forgotten that the object of compassionate appointment is to give succour to the family to tide over the sudden financial crisis that has befallen the dependents on account of the untimely demise of its sole earning member. Therefore, the Hon'ble Apex Court held that it would not be justified in directing appointment for the claimants therein on compassionate grounds, fourteen years after the death of the government employee. That such a direction would amount to treating a claim for compassionate appointment as though it were a matter of inheritance based on a line of succession.
15. In view of the above-said decisions, it is well settled that compassionate appointment is an exception to the general rule that appointment to any public post in the service of the State has to be made on the basis of principles which accord with Articles 14 and 16 of the Constitution. The basis of the policy is that it recognizes that the family of a deceased employee may be placed in a position of financial hardship upon the untimely death of the employee while in service. Thus, the object underlying a provision for the grant of compassionate employment is to enable the family of the deceased employee to tide over the sudden crisis due to death of the bread-earner which has left the family in a distress and without any means of livelihood. Thus, there should be a compelling need to act with a sense of 11 wp2865.2022.odt immediacy in matters concerning compassionate appointment because on failure to do so, the object of the scheme of compassionate appointment would be frustrated.
16. Here in the present case, the death is caused on 02/10/2013. Petitioner no.1 has crossed the age of 45 years in April-2020. Her name was admittedly included in the waiting list. Petitioner No.2 claimed that his name is to be substituted in place of his mother Petitioner No.1. Petitioner No.1 has also filed an application to that effect. The learned counsel for the petitioner placed reliance on the judgment of Dnyaneshwar s/o Ramkishan Musane referred (supra), wherein it is held that the prohibitory clause in the government resolution dated 20/05/2015 is unjust. Admittedly, the present petitioners are not covered by the Government Resolution of the year 2015 but they are covered by the Government Resolution of 2010 which was issued on 06/12/2010 and therefore Dnyaneshwar Musane (supra) would not be applicable. The said government resolution is reproduced for the reference :
'kklu fu.kZ; %& 1½ 'kkldh; deZpk&;kaP;k ik= dqVafc;kauk vuqdaik fu;qDrh ns.;klkBh ;k vk/kh vlysY;k 40 o"kZs ;k deky o;kse;kZnsr ok< dj.;kr ;sr vlwu rks vkrk o;kph 45 o"ksZ brdh jkghy- 2½ vuqdaik rRokoj fyihd&Vadys[kd inkoj fu;qDrh ns.;kr vkysY;k mesnokjkauk Vadys[kukps fofgr osxe;kZnsps 'kkldh; okf.kT; izek.ki= izkIr d#u ?ks.;klkBh l/;k vlysyh 2 o"ksZ 12 wp2865.2022.odt gh eqnr deh dj#u rh vkrk fu;DrhP;k fnukadkiklwu 06 efgus brdh dj.;kr ;sr vkgs-
3½ gs vkns'k fn- 6-10-2010 iklwu ykxw jkgrhy- vuqdaik fu;qDrh ;kstuslanHkkZrhy ;kiwohZ osGksosGh dk<ysY;k 'kklu fu.kZ;ke/;s mYys[k dsY;kizek.ks mijksDr lq/kkfjr rjrwnh ;k dsoG 'kkldh; deZpk&;kaiwjR;kp lhfer vkgsr- lnj rjrwnh ;k ftYgk ifj"knk@ uxj ikfydk @ egkuxj ikfydk @ egkeaMGs @ izkf/kdj.ks @ O;kikjh miØe o brj rRle vkLFkkiukaojhy deZpk&;kauk FksV ykxw gks.kkj ukghr- R;klkBh iz'kkldh; foHkkxkus fu.kZ; ?ks.ks vko';d jkghy-** Thus, in government resolution, there is no whisper as to the substitution of any other member of the family in the place applicant. Thus, the Policy of 2010, nowhere discloses either any prohibition or admission of the substitution as regards the compassionate appointment.
17. Thus, considering the intent of the Policy to provide compassionate appointment, any delay would clearly defeat the Policy. In the instant matter, the father of the petitioner was passed away on 02/10/2013. It was also not in dispute that the gratuity and pension on account of his demise are being received by petitioner No.1, who had earlier applied for a compassionate appointment. Since, there was no vacancy, no appointment was given. The petitioner's birth is claimed to be on 27/04/1975 and she had crossed the age of 45 years. Before crossing the age of 45, she had filed an application for substituting the name of the petitioner No.2 13 wp2865.2022.odt by filing a petition dated 14/01/2020, which is pending. The petitioner No.1 again applied for the same purpose in the year 2020.
18. In Fertilizers and Chemicals Travancore Ltd. And others Vs. Anusree K.B. 2022 LiveLaw (SC) 819 , the Hon'ble Apex Court has held in para 9.1 and 9.2 as under :
"9.1 Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand and considering the observations made hereinabove and the object and purpose for which the appointment on compassionate ground is provided, the respondent shall not be entitled to the appointment on compassionate ground on the death of her father, who died in the year 1995. 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 provided.
9.2 Under the circumstances, both, the learned Single Judge as well as the Division Bench of the High Court have committed a serious error in directing the appellants to reconsider the case of the respondent for appointment on compassionate ground. The impugned judgment and order passed by the High Court is unsustainable."
19. The same position is reiterated in The State of West Bengal Vs. Debabrata Tiwari and others Etc. Etc. 2023 14 wp2865.2022.odt LiveLaw (SC) 175 in para 7.5 in the following words :
"7.5. Considering the second question referred to above, in the first instance, regarding whether applications for compassionate appointment could be considered after a delay of several years, we are of the view that, in a case where, for reasons of prolonged delay, either on the part of the applicant in claiming compassionate appointment or the authorities in deciding such claim, the sense of immediacy is diluted and lost. Further, the financial circumstances of the family of the deceased, may have changed, for the better, since the time of the death of the government employee. In such circumstances, Courts or other relevant authorities are to be guided by the fact that for such prolonged period of delay, the family of the deceased was able to sustain themselves, most probably by availing gainful employment from some other source. Granting compassionate appointment in such a case, as noted by this Court in Hakim Singh would amount to treating a claim for compassionate appointment as though it were a matter of inheritance based on a line of succession which is contrary to the Constitution. Since compassionate appointment is not a vested right and the same is relative to the financial condition and hardship faced by the dependents of the deceased government employee as a consequence of his death, a claim for compassionate appointment may not be entertained after lapse of a considerable period of time since the death of the government employee."
20. It is, thus apparent that any delay either in making of the application or in the appointment of the compensation would defeat the very purpose and object of the Policy and immediate succor, whether an application for compensation appointment could be considered after delay of 15 wp2865.2022.odt several years. The Hon'ble Apex Court in the above cited two decisions held that in case whether any reasons of prolonging delay either on the part of any claimed or authorities in deciding such claim, the sense of immediacy is diluated and lost. During such long duration, the family of the deceased was able to sustain themselves, granting compensation appointment after several years would be a back door entry and defeat the object of providing public employment on merits. The Policy of 2010 does not provide for substitution.
21. In the light of the aforesaid discussions, we are not inclined to entertain the present writ petition. The same is, therefore, dismissed. No order as to costs.
22. Rules is discharged.
(URMILA JOSHI-PHALKE, J) (AVINASH G. GHAROTE, J.) rkn Signed by: Mr. R.K. NANDURKAR Designation: PA To Honourable Judge Date: 06/10/2023 18:12:39