The Division Bench of the Bombay High Court consisting of Justices R.D. Dhanuka and R. N. Laddha while hearing a writ petition opined that appointment of the candidate on a compassionate ground would not be affected by a ban on recruitment and such appointments are not a fresh appointment.
Facts
The husband of the Petitioner was a “Peon”, working with the Respondent No. 5- School and passed away, while he was in service, leaving behind father, 4 children and his widow-the Petitioner. The Petitioner applied for compassionate appointment twice. These applications were considered by the Respondent – Management in its meeting and it was resolved to appoint the Petitioner on compassionate basis. She, accordingly, was appointed as a “Peon” on compassionate ground. Thereafter, she joined her duties in the Respondent-School. In turn, the proposal of the Petitioner was forwarded to the Respondent -Education Officer, Zilla Parishad, Pune. As there was no response from the Respondent - Education Officer, the proposal was re-submitted. It is stated that since approval had not been coming forth, quite a few representations were made to the Respondent -Education Officer. The Respondent-Education Officer, during the pendency of this petition placed on record a letter. The Education Officer by this letter had already refused to accord approval to the compassionate appointment of the Petitioner, stating therein that as per Government Resolution a relaxation was granted to the persons, on the wait list of the candidates on the compassionate ground for appointments, till 31 December, 2011 and as the Petitioner is appointed on 15 June, 2016, the approval to the appointment of the Petitioner on compassionate basis could not be granted.
Contentions Made
Appellant: The husband of the Petitioner was working as a “Peon” in Respondent - School since 1990-1991 till he breathed his last. The Petitioner’s husband was the sole bread earner of the family. The very object and purpose of such employment and conferring the power to make appointment on compassionate ground is that the employer assists the family to tide over a financial crisis caused by the loss of the sole bread earner. It is the assistance to the family just in distress. In the circumstances, this is not a fresh appointment or an appointment which ordinarily requires approval. The Petitioner belonged to the reserved category and has passed SSC examination. She submitted her application within a stipulated period, as prescribed under the relevant Government Resolution and that post was also vacant at the relevant time in the Respondent- School. 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 posts and / or on newly created posts. Reliance was placed on Smt. Yogita w/o. Shivsing Nikam vs State of Maharashtra & Ors.
Respondent: The Respondent No. 1 is running the school on grant-in-aid basis. The Government of Maharashtra vide Government Resolution granted stay to the new recruitment and directed not to fill-up vacant posts in non -teaching staff. The Respondent-Management has appointed the Petitioner on compassionate ground without observing the policy of the Government to the staffing pattern of non – teaching posts in aided private school and has made appointment of the Petitioner in violation of the Government Resolution. It is submitted that the Government of Maharashtra has introduced a new staffing pattern for non-teaching staff of Class IV on 11 December, 2020, by which the post of Class IV in the recognized school of private, partly / fully aided, secondary and higher secondary schools within the State have been abolished and the State Government has taken a policy decision that instead of a new recruitment of regular Class IV posts, the Government has sanctioned consolidated amount as “Shipai Bhatta” to the aided / partly aided secondary and higher secondary schools. It has been submitted that the Government Resolution dated 31 December, 2011 and Government Resolution dated 22 March, 2012, imposed a ban on making appointments and, therefore, the Respondent- Education Officer has rightly refused to accord approval to the Petitioner’s appointment on compassionate ground.
Observations of the Court
The Bench, while referring to Smt. Samita Sameer Desai & Anr. vs State of Maharashtra through Secretary & Anr, Bharati Bhausaheb Thakare vs State of Maharashtra & Ors and Yogesh Nagraoji Ugale vs State of Maharashtra, through Principal Secretary, observed that:
“As is manifest from the above, it can safely be concluded that the State of Maharashtra had never imposed a complete ban on compassionate appointment. There is no dispute that the appointment of the Petitioner on compassionate basis is made in terms of the Government Resolution dated 31 December 2002 and the said Government Resolution has not been superseded by any subsequent Government Resolution. From the aforesaid pronouncements, the compassionate appointment is an exception to the rule of recruitment. There is nothing on record even to suggest that the State has ever imposed the complete ban on compassionate appointments. On the other hand, this Court has consistently taken a view that the appointment of the candidate on a compassionate ground would not be affected by a ban on recruitment and such appointments are not a fresh appointment. The husband of the Petitioner was already appointed as a “Peon” on permanent and sanctioned post. Hence, no post is required to be created nor is there any question of appointment being made through recruitment process which was covered by the ban. It is also not in dispute that the Petitioner belongs to reserved category, and she also possesses the educational qualification required for the post of Peon. Further, she has submitted her application within stipulated period, as prescribed under the relevant Government Resolution and that the post on which her appointment was made was also vacant.”
Judgment
The Bench allowed the Writ Petition by quashing and setting aside the impugned order. The proposal submitted for approval to the Petitioners’ appointment was to be decided in right earnest keeping in view the observations made and appropriate orders accordingly were to be passed, including that of giving benefits of salary, emoluments etc., attached to that post. Arrears of salary and other benefits were to be released to the Petitioner as early as possible. The aforesaid process was to be completed within a period of eight weeks from the date of communication of this order.
Case Name: Smt. Manisha Dnyneshwar Londhe vs State of Maharashtra & Ors
Citation: WRIT PETITION NO. 2619 OF 2021
Bench: Justice R.D. Dhanuka, Justice R. N. Laddha
Decided on:19th January 2022
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