Bombay High Court
Yogita Shivsing Nikam vs The State Of Maharashtra And Others on 11 August, 2021
Equivalent citations: AIRONLINE 2021 BOM 3071
Author: Ravindra V. Ghuge
Bench: Ravindra V. Ghuge, S. G. Mehare
1 904-WP.4219-18+1, oral jud.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
904 WRIT PETITION NO.4219 OF 2018
Smt. Yogita W/o Shivsing Nikam,
Age 35 years, Occu. Service,
R/o Engaon, Tal. Bodwad,
District Jalgaon. ... Petitioner
Versus
1. The State of Maharashtra,
Through its Secretary,
School Education Department,
Mantralaya, Mumbai-32.
2. The Education Offcer (Secondary),
Zilla Parishad Jalgaon at Jalgaon.
3. The Chairman,
Group Education Society, Engaon,
Tal. Bodwad, District Jalgaon.
4. The Head Master,
Gopal Devga Dhake Vidyalaya,
Engaon, Tal. Bodwad,
District Jalgaon. ... Respondents
...
Adv. for Petitioner : Mr.P.N. Nagargoje h/f Mr.D.B.Thoke.
AGP for Respondents-State : Mr. S. B. Yawalkar.
Advocate for Respondent Nos.3 & 4 : Mr. Y. B. Bolkar.
...
AND
905 WRIT PETITION NO.163 OF 2020
Sachin Shivajirao Suryawanshi,
Age 32 years, Occu. Service as Peon,
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R/o Mukramabad, Tal. Mukhed,
District Nanded. ... Petitioner
Versus
1. The State of Maharashtra,
Through its Secretary,
Education Department,
Mantralaya, Mumbai-32.
2. The Education Offcer (Secondary),
Zilla Parishad, Nanded.
3. Anusaya Shikshan Prasarak Mandal,
Gojegaon, Tq. Mukhed, District Nanded,
Through its, Secretary.
4. Shri Chhatrapati Sambhaji Vidyalaya,
Mukramabad, Tq. Mukhed, Dist. Nanded,
Through its, Head Master. ... Respondents
...
Advocate for Petitioner : Mr. V. S. Panpatte.
AGP for Respondents-State : Mr. S. B. Yawalkar.
Advocate for Respondent Nos.3 & 4 : Mr. B. P. Gonare.
...
CORAM : RAVINDRA V. GHUGE AND
S. G. MEHARE, JJ.
DATE : 11.08.2021
ORAL JUDGMENT : (Per Ravindra V. Ghuge, J.) :-
1. Rule. Rule made returnable forthwith and heard fnally by the consent of the parties.
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2. By this petition, the petitioner, who is rendered a widow at a young age, has rushed to this Court by putting forth prayer clause 'C'.
"C. By appropriate writ order or direction the impugned order dated 18.12.2017 passed by the Respondent No.02 thereby refusing to accord the approval to the petitioner for the appointment on the post of Peon on compassionate ground may kindly be quashed and set aside."
3. In the second petition, the petitioner, who is the son of a deceased employee, has also approached this Court by putting forth prayer clauses 'B, C and D'.
"B. By issue of Writ of mandamus or Order or direction in the like nature, the impugned order dated 10.12.2019 passed by the Respondent No.2 Education Offcer (Secondary) Zilla Parishad Nanded whereby rejecting the approval of the Petitioner, may kindly be quashed and set-aside."
"C. By issue of Writ of mandamus or Order or direction in the like nature, the Respondent No.2 Education Offcer (Secondary) Zilla Parishad Nanded may kindly be directed to grant approval to the post of peon to the Petitioner with further directions to release his arrears and salary forthwith."
"D. To hold and declare that, the appointment of petitioner on the post of peon on compassionate ground is legal and valid one."::: Uploaded on - 25/08/2021 ::: Downloaded on - 26/09/2021 10:32:16 :::
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4. In Writ Petition No.163 of 2020, since the Education Offcer has passed yet another order dated 09.08.2021 refusing to accord approval to the compassionate appointment of the petitioner, we grant leave to the petitioner to amend the petition and add prayer clause 'B(1)' to assail the said order. Amendment be carried out forthwith. Consequentially, prayer clause 'B(1)' reads as under :
"B(1) By issue of Writ of Mandamus or order or direction in the like nature, the impugned order dated 09.08.2021 passed by the Respondent No.2 - Education Offcer (Secondary) may kindly be quash and set aside."
5. We have extensively heard the learned advocates for the respective sides. Time and again, we have dealt with cases in which compassionate appointment have been made and approval is denied or the appointment itself is refused on the grounds that, (a) There is a ban on fresh recruitment or flling up vacant posts, (b) Status-quo is ordered by the Government, or (c) Compassionate appointment cannot be made since it has to be verifed whether the post is available. ::: Uploaded on - 25/08/2021 ::: Downloaded on - 26/09/2021 10:32:16 :::
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6. Time and again and without an exception, this Court has ruled that appointment of a candidate on compassionate grounds would not be affected by (a) a ban on recruitment or (b) staffng pattern having been undertaken by the Government. Not a single order passed by this Court is placed before us which would indicate that this Court has concluded that the moment a permanent employee dies in harness, the permanent post occupied by him will either extinguish or stand abolished or that it can be treated as being a vacancy to be affected by a ban on recruitment.
7. These are two peculiar cases before us and in the above mentioned backdrop of litigation, we are constrained to frst discuss the law laid down by this Court before we proceed to deal with the submissions of the State Government and its various Government Resolutions.
8. We are referring to the following judgments of the Hon'ble Supreme Court ;
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(a) Umesh Kumar Nagpal Vs. State of Haryana and others, (1994) 4 Supreme Court Cases 138,
(b) Local Administration Department and another Vs. M. Selvanayagam Alias Kumaravelu, (2011) 13 Supreme Court Cases 42,
(c) Canara Bank and another Vs. M. Mahesh Kumar, AIR 2015 SC 2411.
(d) Balbir Kaur and another Vs. Steel Authority of India Ltd. and others, AIR 2000 SC 1596.
(e) Yogesh Nagraoji Ugale Vs. State of Maharashtra, 2019 STPL 9892 SC.
(f) Shattuppa L. Patil Vs. Central Bank of India, Writ Petition No.1549 of 2006, judgment dated 23.10.2007 (High Court of Karnataka).
(g) Smt. Meena Dhaigude Vs. Maha Pravandhak, State Bank of India, W.P.No.7249 of 2012, judgment dated 26.07.2021 (Madhya Pradesh High Court, Bench at Indore).
9. A consistent view has been taken by the Supreme Court in matters of death of a permanent employee and the applicability of the policy of compassionate appointment. The Hon'ble Supreme Court has concluded that granting compassionate appointment is a humane act. A family which is rendered to the ::: Uploaded on - 25/08/2021 ::: Downloaded on - 26/09/2021 10:32:16 ::: 7 904-WP.4219-18+1, oral jud.odt comforts of life, there being a bread earner in the family, is shaken up with the death of such a bread earner. This virtually throws the family into a fnancial 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 fnancial 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. At the same time, the Hon'ble Supreme Court has held that, with passage of a long duration of time, the family is no longer in fnancial stringency or distress and does not require any fnancial support, which would be a ground for declining compassionate appointment. There are cases before this Court as well as the Hon'ble Supreme Court, wherein candidates seeking compassionate appointment have approached after a passage of 10 years or 15 years and this Court has ruled that no purpose would be served in granting compassionate appointment in such ::: Uploaded on - 25/08/2021 ::: Downloaded on - 26/09/2021 10:32:16 ::: 8 904-WP.4219-18+1, oral jud.odt cases.
10. It appears from the material placed before us by the learned AGP, Mr. Yawalkar that the State Government of Maharashtra has issued several resolutions providing for compassionate appointment. However, we do not fnd a single Government Resolution which would indicate a complete ban on recruitment or that a direction to maintain status-quo as regards recruitment would apply to compassionate appointment or that a post available for compassionate appointment would be subject matter of a staffng pattern or that until such staffng pattern is declared by the Government, compassionate appointments would be prohibited.
11. 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 ::: Uploaded on - 25/08/2021 ::: Downloaded on - 26/09/2021 10:32:16 ::: 9 904-WP.4219-18+1, oral jud.odt retirement taken by a permanent employee, who is suffering from a grave disease or terminal illness, is also covered by such Government Resolution.
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. Vide the said Government Resolution, the State resolved as under :
^^'kklu fu.kZ; %& 'kklukus jkT;krhy [kktxh (vuqnkfur o foukvuqnkfur) 'kkGkae/khy f'k{kd o f'k{kdsrj deZpk&;kaP;k ukrsokbZdkauk vuqdia k rRokoj lsosr lkekowu ?ks.;kckcr 'kkys; f'k{k.k foHkkxkus osGksosGh fuxZfer dsysys loZ vkns'k vf/kdzfer d#u vls vkns'k ns.;kr ;sr vkgsr dh] jkT;krhy [kktxh (vuqnkfur o foukvuqnkfur) 'kkGkarhy f'k{kd o f'k{kdsrj deZpkjh lsosr vlrkauk vdkyh e`R;w ikoyk ok dks.kR;kgh nq/kZj jksxkP;k dkj.kkus R;kyk lsokfuo`Rrh iRdjkoh ykxyh rj R;kaps yxrps ukrsokbZd iq<hy vVh o 'krhZaP;k vf/ku jkgqu vuqdaik rRokoj fu;qDrh feG.;kl ik= vlrhy%& 1- vuqdaik rRokoj fu;qDrh ns.;kckcr jkT;krhy loZ [kktxh izkFkfed] ek/;fed o mPp ek/;fed rFkk v/;kid fon;ky;krhy loZ f'k{kd o f'k{kdsrj deZpk&;kauk lnjgq ;kstuk ykxw vlsy- 2- e`r ok oSn;dh; dkj.kkLro lsokfuo`Rr >kysy;k deZpk&;kaP;k ukrsokbZdkl lsosr lkekowu ?ks.;kckcrps fu;e lksscr tksMysY;k ifjf'k"V ^^v** e/;s ns.;kr vkysys vkgsr-
3- lacaf/kr deZpk&;kaP;k ukrsokbZdkauh uksdjhlkBh djko;kpk vtZ o R;klkscr lknj djko;kph dkxni=s ;kph ekfgrh ifjf'k"V ^^c** e/;s ueqn dsY;kuqlkj vlsy-
4- gh ;kstuk vaeykr vk.k.;kiohZ vuqdaik rRokoj fu;qDrh ns.;k@ukdj.;k ckcr fu.kZ; ?ks.;kr vkyk vlY;kl rh izdj.ks iqufoZyksdukFkZ iqUgk fopkjkr ?ks.;kr ;sm u;sr- ek= fnukad 1 tkusokjh] 2001 uarj T;k deZpk&;kaps fu/ku >kys vkgs ok ts deZpkjh nq/kZj jksxkP;k dkj.kkus vdkyh lsokfuo``Rr >kysys vkgsr v'kk deZpk&;kaP;k dqVwackrhy O;fDrhauh vuqdaik rRokoj fu;qDrhlkBh vtZ dsyk vlsy o R;kaph foaurh ::: Uploaded on - 25/08/2021 ::: Downloaded on - 26/09/2021 10:32:16 ::: 10 904-WP.4219-18+1, oral jud.odt vekU; dsyh vlsy rjh vls ukrsokbZd ;k ;kstuse/;s iqUgk uO;kus vtZ nk[ky d# 'kdrkr-
5- deZpkjh e;r ok vdkyh lsokfuo`Rr >kY;koj rhu efgU;kaP;k vkr fdaok dqVwac fuo`Rrhosrukps dkxni= lknj djrkauk lacaf/kr vf/kdk&;kus vko';d ekfgrh (ifjf'k"V ^^d**) ukrsokbZdkauk miyC/k d#u n;koh o fofgr izi=krhy mesnokjkpk vtZ ia/kjk fnolkaP;k vkr lacaf/kr f'k{k.kkf/kdk&;kadMs lknj djkok-
6- izkFkfed] ek/;fed] mPp ek/;fed o v/;kid fon;ky;kaP;k ckcrhr loZ f'k{k.kkf/kdkjh @ f'k{k.k fujh{kdkauh lkscr tksMysY;k ifjf'k"V ^^M** e/khy ekfgrh foHkkxh; f'k{k.k milapkydkaekQZr f'k{k.k lapkydkadMs ikBokoh-
7- 'kkGk o v/;kid fon;ky;krhy #-5]500&9]000 ;k osruJs.kh i;ZarP;k loZ inkauk vuqdaik rRokoj fu;qDrh nsrk ;sbZy- rlsp th ins Hkj.;kl 'kklukus eatqjh fnysyh vkgs v'kkp inkojhy fu;qDrh ns.;klkBh gs vkns'k ykxw jkgkrhy-
gs vkns'k lkekU; iz'kklu foHkkx] foRr foHkkxkP;k lgerhus o foRr foHkkxkP;k vukSipkfjd lanHkZ dzekad 892@02@O;;&6] fnukad 3-7-2002 vU;os fuxZfer dj.;kr ;sr vkgsr-
egkjk"Vªkps jkT;iky ;kaP;k vkns'kkuqlkj o ukokaus] (l-v-g- vkfonh) mi lfpo] egkjk"V 'kklu**
13. Annexure-A to the Government Resolution dated 31.12.2002, lays down the parameters to be applied for appointment of an eligible candidate, on compassionate basis. We do not intend to enlarge the size of this judgment by reproducing the contents of Annexure-A. Suffce it to say that, there is no prohibition or bar introduced by the State on an appointment on compassionate ground, as is vehemently canvassed by the learned AGP.
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14. We fnd from the judgment delivered by the Hon'ble Supreme Court in Yogesh Nagraoji Ugale ( supra) that the State of Maharashtra had referred to three Government Resolutions dated 22.08.2005, 22.03.2012 and 01.03.2014. It became obvious in Yogesh ( supra) that the State of Maharashtra had never imposed a complete ban on compassionate appointments. The Government Resolution dated 22.08.2005 had only restricted recruitment on compassionate basis to 5% in groups "C" and "D" and by the Government Resolution dated 01.03.2014, the compassionate appointments were increased to the limit of 10% of the posts. It was thus concluded in Yogesh (supra) as under :
"7. We have heard the learned Counsel for the parties, and have perused the material on record.
7.1. In the present case, the Appellant admittedly possesses the educational qualifcations for the post of Peon. The Appellant has an S.S.C. Degree along with MS. C.I.T. 7.2. Even though Respondent Nos.3 and 4 contended that there is a ban since 2005 for appointment on compassionate grounds, a relaxation was initially granted for persons on the wait list till 31.12.2011.
Thereafter, vide Government Resolution dated 01.03.2014 bearing No.AKP-1014/Pra. Kra. 34/8 the Government of Maharashtra decided to increase the ::: Uploaded on - 25/08/2021 ::: Downloaded on - 26/09/2021 10:32:16 ::: 12 904-WP.4219-18+1, oral jud.odt recruitment of 'Group C and D' posts on compassionate ground from 5% to 10%.
On 02.04.2014, the Government released a Supplementary Order to this Resolution stating that all employment authorities shall take action every year to fll up the posts reserved for compassionate appointment upto 10% of vacant posts of Class C and D from 2012.
This reveals that the Government was continuing to make appointments on compassionate grounds despite the ban of 2005, and in fact had increased the number of posts earmarked for compassionate appointment to 10%.
7.3. A perusal of the Order dated 31.05.2013 passed by the Education Offcer reveals that during the hearing, Respondent No. 3 - President of the Society stated that the Society was ready to appoint the Appellant on compassionate grounds, if the Education Offcer grants the permission.
The Education Offcer had in the proceedings dated 31.05.2013 recorded that there are 2 post of Junior Clerk vacant in the two Schools run by Respondent Nos. 3 and 4, where the Appellant could be appointed.
This fact has not been either adverted to, or considered by the High Court, in the impugned judgment."
"8. In the facts and circumstances of the present case, we allow the Appeal, and set aside the Judgment passed by the High Court on 19.11.2014 in W.P. No. 3520 of 2014.
Respondent Nos. 3 and 4 are directed to submit the proposal for appointment of the Appellant before the Respondent No. 2 - the Education Offcer within one month, so that necessary orders can be passed on the application of the appellant. Ordered accordingly.
Pending applications, if any, are accordingly disposed of."
15. The Deputy Secretary, Rural Development Department State of Maharashtra, issued a circular on ::: Uploaded on - 25/08/2021 ::: Downloaded on - 26/09/2021 10:32:16 ::: 13 904-WP.4219-18+1, oral jud.odt 04.02.2020 referring to the Government Resolution dated 11.09.2019 and a notifcation dated 20.09.2020 (should be read as 20.09.2019). The said circular is addressed to all the Chief Executive Offcers of the Zilla Parishad and Deputy Commissioners - Establishments in the State of Maharashtra. The decision taken by the said department reads as under :
^^;k lanHkkZr Li"V dj.;kr ;srs dh] mijksDr uewn dsY;kuwlkj ftYgk ifj"knsdMhy ln;%fLFkrhrhy inHkjrh dj.;kl cjkp foyac gksr vkgs- R;keqGs nqnZSokus R;kpk ifj.kke ftYgk ifj"knsP;k nSuafnu dkedktkoj gksr vkgs- laiw.kZ fuoM izfdz;k iw.kZ gksbZi;Zar vk.k[kh dkgh dkyko/kh ykxw 'kdrks- ftYgk ifj"knsdMhy deZpk&;kaph fudMhph xjt y{kkr ?ksrk] R;kauk rkrMhus euq";cG miyC/k d#u ns.ks xjtsps vkgs-
lkekU; iz'kklu foHkkxkus R;kaP;k fn-11-09-2019 P;k 'kklu fu.kZ;kP;k vuq"kaxkus 20 VDds vuqdaik mesnokjkaph inHkjrh dj.;kckcr fnysys vkns'k fopkjkr ?ksrk] 10 VDds mesnokjkaph inHkjrh ;kiwohZp ftYgk ifj"kn Lrjkoj lq# vkgs- moZfjr 10 VDds mesnokjkaph inHkjrh vkrk rkRdkG lq# dj.;kr ;koh- moZfjr 10 VDds fjDr inkaoj vuwdaik deZpk&;kaph inHkjrh dsY;kuarj tkfgjkrhrhy 10 VDds ins deh gks.kkj vlyh rjh 10 VDdsiSdh 5 VDds ins ljGlsok mesnokjkalkBh lsokfuo`Rrh ok inksUurhus fjDr gks.kk&;k inkae/kwu miyC/k gks.kkj vkgsr- moZfjr 5 VDds inkaoj tkfgjkrhl vuql#u ;s.kk&;k mesnokjkauk izfr{kk ;knhoj Bsowu tlt'kh fjDr ins gksrhy] rlr'kh R;kauk fu;qDrh ns.;kr ;koh- vuqdaik mesnokjkauk fu;qDrh ns.;kph dk;Zokgh rkRdkG iw.kZ d#u R;kckcrpk vgoky 45 fnolkaP;k vkr 'kklukl lknj djkok] gh fouarh-
rlsp] dks.kR;kgh izdkjs vuqdaik /kkjdkaph inHkjrh gh R;k R;k o"kkZ ljGlsosP;k fjDr inkaP;k 20 VDds izek.kkis{kk tkLr gks.kkj ukgh] ;kph n{krk ?;koh-
vkiyk (fiz- 'ka- dkacGs) mi lfpo] egkjk"V 'kklu** ::: Uploaded on - 25/08/2021 ::: Downloaded on - 26/09/2021 10:32:16 ::: 14 904-WP.4219-18+1, oral jud.odt It is thus obvious that the Government Resolution dated 11.09.2019 provides for a ceiling of 20% on recruitment on compassionate grounds and mandates expeditious action.
16. The learned Division Bench of this Court, at it's Principal Seat, delivered an order on 11.12.2018 in Writ Petition No.7507 of 2016 fled by Smt. Samita Sameer Desai and another Vs. The State of Maharashtra through Secretary and another. The case involved the death of the husband of the petitioner, who was working as a Peon in the petitioner No.2 - School. He passed away on 02.11.2011 and petitioner No.1, his widow, came to be appointed on compassionate ground. The widow had a minor son aged 6 years and a minor daughter aged 4 years. They were solely dependent upon the source of income of the deceased. She moved an application on 06.02.2012 for appointment on compassionate ground with reference to the policy enunciated by the Government of Maharashtra vide the ::: Uploaded on - 25/08/2021 ::: Downloaded on - 26/09/2021 10:32:16 ::: 15 904-WP.4219-18+1, oral jud.odt Government Resolution dated 31.12.2002 (relevant portion reproduced herein above).
17. The facts in Smt. Samita Sameer Desai (supra) indicate that the application of the widow was considered by the School Committee and it was resolved to appoint her on compassionate basis in place of her deceased husband. An appointment order dated 29.05.2012 was issued in her favour. This Court has observed in paragraph No.8 of the order that the reasonable expectation was that the widow would be appointed in place of her husband as a peon, keeping in view that the post occupied by the deceased was approved by the State Authorities. This was, however, opposed by the State authorities and the approval was not granted. An earlier Writ Petition No.3505 of 2015 fled by the widow was disposed off with a direction to the Education Department to decide the proposal for grant of approval. Unfortunately, the State relied on the Government Resolution dated 02.05.2012, which imposed a ban on making appointments in secondary ::: Uploaded on - 25/08/2021 ::: Downloaded on - 26/09/2021 10:32:16 ::: 16 904-WP.4219-18+1, oral jud.odt schools and opposed the approval to be granted to the widow. The second reason put forth by the Government was that though the appointment of the peon was as per the staffng pattern, the post in question was not included in the staffng pattern. On these two grounds, the approval was refused.
18. In view of the above, this Court concluded in paragraph No.9 as under :
"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 fnancial 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 suffce 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."::: Uploaded on - 25/08/2021 ::: Downloaded on - 26/09/2021 10:32:16 :::
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19. The learned advocate appearing on behalf of the respondents in Samita Sameer Desai ( supra) relied upon an affdavit-in-reply and contended that as there was a ban, the approval was rightly refused. This Court concluded that it was unable to accept the contentions of the respondents for the reason that the appointment of the widow cannot be said to be an illegal appointment and no prior approval of the Education Department was necessary. It was then held that the appointment on compassionate basis is made in terms of the Government Resolution dated 31.12.2002. This has not been superseded by any subsequent Government Resolution, as on 11.12.2018 when this court delivered the order. The very object of compassionate appointment is to ensure that a source of income is made available to the family. Ultimately, this court quashed and set aside the order of refusal of approval and declared that her appointment on compassionate grounds with effect from the date of her appointment was duly approved and she was held entitled to all benefts, salary, emoluments etc. attached to the said post.
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20. In yet another judgment dated 10.03.2021 delivered by this Court at the Aurangabad Bench in Writ Petition No.15018 of 2019 fled by Bharati Bhausaheb Thakare Vs. The State of Maharashtra and others, this Court had noted that the husband of the petitioner widow was in permanent employment and he died while in service. The widow was appointed on compassionate ground. However, the proposal for approval of her appointment was turned down. The judgment delivered by this Court in Smt. Samita Sameer Desai ( supra) was cited and this Court agreed with the view taken by the learned Bench and quashed and set aside the order of the Education Offcer refusing to grant approval.
21. We have perused the Writ Petition paper book of this case (Bharati Bhausaheb Thakare) to appraise ourselves as regards the reasons assigned by the Education Offcer for refusing approval to the compassionate appointment of Smt. Bharati ( supra). Having perused the impugned order dated 13.09.2019, Annexure-G to the said petition, we fnd that the refusal ::: Uploaded on - 25/08/2021 ::: Downloaded on - 26/09/2021 10:32:16 ::: 19 904-WP.4219-18+1, oral jud.odt is based on two grounds. Firstly, that there was a ban on recruitment and secondly, as the staffng pattern was not yet formalized, the approval could not have been granted. By judgment dated 10.03.2021, this Court allowed the Writ Petition fled by Smt. Bharati Bhausaheb Thakare and granted her all the service benefts attached to her post from the date of her joining duties.
22. Having discussed the legal position, rather the crystallized position of law with regard to compassionate appointment, compassionate appointment is an exception to the rule of recruitment.
23. In the two cases before us, the impugned orders lead to the denial of approval for the compassionate appointment of the petitioners by placing reliance upon an inapplicable Government Resolution dated 12.02.2015 which introduced a ban on recruitment of teaching and non teaching posts. So also, the other reason for denial of approval is that the staffng pattern for the non teaching posts is yet to be sanctioned for the ::: Uploaded on - 25/08/2021 ::: Downloaded on - 26/09/2021 10:32:16 ::: 20 904-WP.4219-18+1, oral jud.odt academic year 2014-2015 and hence, the approval cannot be granted.
24. In the second petition, the reason for refusal of approval is based on yet another Government Resolution of Government dated 23.10.2013 by which a committee was formed by the State Government for preparing the staffng pattern for several categories of employees and the said committee had directed status-quo to be maintained with regard to recruitment and flling up of vacant posts. The other reason for refusing approval was that the State Government has introduced a Government Resolution dated 28.01.2019 by which staffng pattern for the non teaching posts falling in the Class-III category had been formalized, but, such a staffng pattern for the Class-IV category was still pending. In this petition fled by Sachin, in the second impugned order dated 09.08.2021 refusing approval, the Education Offcer concludes that the Maharashtra Government has decided to abolish Class-IV non teaching employees' posts immediately after the ::: Uploaded on - 25/08/2021 ::: Downloaded on - 26/09/2021 10:32:16 ::: 21 904-WP.4219-18+1, oral jud.odt employee retired. The Education Offcer, therefore, advised that if the case of Sachin Suryawanshi is forwarded along with other candidates, who have been appointed by following the regular recruitment process, the Education Offcer would consider his case for approval.
25. We fnd this reason to be astonishing. An employee who is already appointed on compassionate grounds is unjustifably refused approval and the Management is advised to send a proposal indicating that the said employee has been subsequently selected on a permanent vacant post so as to consider his case for approval.
26. Despite the legal position discussed in the foregoing paragraphs, Mr. Yawalkar, the learned AGP, on instructions from the State, has canvassed as under :
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(b) If there is a status-quo on recruitment ordered by the State Government, such status-quo would apply even to compassionate appointments.
(c) If the staffng pattern is not yet formalized, a compassionate appointment cannot be approved because the death of a permanent employee leads to the creation of a vacancy and it is only on the basis of the staffng pattern that a decision will have to be taken that such a vacant post will amount to a sanctioned permanent post.
27. Considering the settled position of law, we called upon Mr. Yawalkar to respond as to whether his above recorded submissions would stand the test of law laid down in the judgments delivered in Yogesh ( supra), Samita Sameer Desai (supra) and Bharati Bhausaheb Thakare (supra). He submits that since the death of an employee occupying a permanent post would amount to creation of a vacancy, the ban on recruitment, the status-quo with regard to recruitment and the ::: Uploaded on - 25/08/2021 ::: Downloaded on - 26/09/2021 10:32:16 ::: 23 904-WP.4219-18+1, oral jud.odt appointment pending formalization of the staffng pattern, would be suitable grounds for refusing approval to the appointment on compassionate grounds.
28. To say the least, we are shocked by the stand taken by the State Government, which is not only against logic and reason, but is in complete contradiction to the law crystallized by this Court in numerous judgments. It is unconscionable for the State to canvass such grounds virtually rendering the bereaved family to starvation. We fnd that the State has consistently ensured that not a single Government Resolution, pertaining to ban on recruitment, stay on flling in vacant posts and prohibition on appointments until the staffng pattern of the non teaching posts is formalized, would apply to appointments made on compassionate grounds. This Court has also consistently taken a view that compassionate appointment would be an exception to the mandatory rule of following specifc selection procedure for recruitment on vacant posts or on newly created posts. ::: Uploaded on - 25/08/2021 ::: Downloaded on - 26/09/2021 10:32:16 :::
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29. We have noticed the agony caused to litigants in such cases. We, therefore, fnd it appropriate at this stage to record that after the delivery of this judgment, if any case refusing approval to a compassionate appointment which is otherwise legally sustainable satisfying the eligibility criteria, comes to this Court, we would be issuing directions recommending strict disciplinary action against the Education Offcer and we would not hesitate to initiate contempt of Court proceedings against persons responsible, since they are interpreting the Government Resolutions in the most inappropriate manner, despite the crystalised position of law. Because of such acts of the Education Offcers, widows and eligible candidates are compelled to rush to this Court after having suffered mental and physical agony of a personal loss of a sole bread earner and also spend on litigation which is costly these days. We would also impose heavy costs to be recovered from the salaries of such Education Offcers for the pain caused to such petitioners. We fnd it appropriate to record ::: Uploaded on - 25/08/2021 ::: Downloaded on - 26/09/2021 10:32:16 ::: 25 904-WP.4219-18+1, oral jud.odt that if the Education Offcer notices that a particular Management is attempting to defeat the rights of an eligible candidate for compassionate appointment, the Education offcer would be at liberty to initiate appropriate action against such Management.
30. In view of the above, these petitions are allowed. The impugned orders stand quashed and set aside. Approvals stand granted to these petitioners from the dates of their joining duties on compassionate basis, with all monetary benefts accruing to their posts. Formal approval orders shall be issued by the concerned Education Offcers, before 30.09.2021.
31. The Education Offcer (Secondary), Zilla Parishad, Jalgaon and the Education Offcer (Secondary), Zilla Parishad, Nanded shall deposit an amount of Rs.25,000/- (Rupees Twenty Five Thousand only) each, as costs, from their salary bank account in this Court, on or before 30.09.2021 and these two petitioners namely Smt. Yogita and Mr. Sachin, shall be entitled to withdraw the said amount subject to proper ::: Uploaded on - 25/08/2021 ::: Downloaded on - 26/09/2021 10:32:16 ::: 26 904-WP.4219-18+1, oral jud.odt identifcation, without conditions. In the event, any of these two Education Offcers has retired, the said amount shall be recovered from his pension. Compliance of this order shall be reported to this Court upto 15.10.2021, by the respective Chief Executive Offcer, Zilla Parishad.
32. We direct the learned Registrar (Judicial) of this Court to place this order before the Secretary, School Education Department, Mantralaya to be circulated to all concerned. The concerned Secretary shall pass appropriate instructions to all concerned offcers in the State of Maharashtra.
33. We need to clarify that, in cases relating to a candidate not being eligible to occupy the post of the deceased father/parent and, therefore, has to be accommodated on some other inferior post in another class, the authority empowered to make compassionate appointment, shall verify whether such post is available or not and shall list the candidate in the wait list of eligible candidates.
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34. Rule is made absolute in the above terms. (S. G. MEHARE, J.) (RAVINDRA V. GHUGE, J.) ...
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