Ganesh vs The State Of Maharashtra
2013 Latest Caselaw 297 Bom

                                                 Writ Petition No.9466/2013
                                  1


          IN THE HIGH COURT OF JUDICATURE AT BOMBAY,




                                                                  
                     BENCH AT AURANGABAD




                                          
                 WRIT PETITION NO.9466 OF 2013




                                         
     Ganesh s/o Bhimrao Munjal,
     Age 19 years, Occ. Nil,
     R/o Talegaon, Nagar Road,




                               
     Beed, District Beed                   ...      PETITIONER


          VERSUS
                   
                  
     1.   The State of Maharashtra
          through its Secretary,
          Home Department (Incharge of
      

          Police Establishment Matters,
          M.S., Mantralaya, Mumbai - 32.
   



     2.   The Additional Director General
          of Police, Training & Special Units,
          M.S., Mumbai.





     3.   The Superintendent of Police,
          Beed, District Beed.

          (Notices of respondent Nos.1 to 3
          to be served on the Govt. Pleader,





          High Court of Judicature at Bombay,
          Bench at Aurangabad)            .... RESPONDENTS


                                  .....
     Shri Avinash Deshmukh, holding for
     Shri R.S. Deshmukh, Advocate for petitioner
     Shri D.B. Bhange, A.G.P. for respondents/State
                                  .....




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                                                   Writ Petition No.9466/2013
                                      2




                                                                      
                             CORAM:       R.M. BORDE &
                                          A.I.S. CHEEMA, JJ.




                                              
                             DATED:       9th December, 2013.




                                             
     JUDGMENT (Per A.I.S. Cheema, J.)

1. Rule. Rule made returnable forthwith. Taken up

for final disposal at admission stage with the consent of

parties.

2. This writ petition is filed by the ward of an ex-

policeman for appointment on compassionate ground after

his father retired premature on medical grounds, against

the orders of the Maharashtra Administrative Tribunal,

which has dismissed his Original Application No.606/2012.

3. The claim of the petitioner is as follows :-

(a) Bhimrao Munjal, the father of petitioner Ganesh

was working as Head Constable and retired from

Government service on medical grounds w.e.f.

2.1.2011. At the relevant time, the Maharashtra

Writ Petition No.9466/2013

Police Constables (Recruitment) Rules, 2006

(hereinafter referred to as "2006 Rules" for short),

provided in Rule 3(2)(D) mode of compassionate

appointments to be given to wards of Police

employees, who were either reported missing or

retired on medical grounds or died in harness.

Such wards were being directly given appointments

on fulfilling the requirements of physical eligibilities

as per the then prevailing rules, without requiring

them to appear for physical test, written test or

interview. This was done as per the 2006 Rules and

also in view of specific provision made to that effect

by the State vide Government Resolution dated

23.2.2004, which had dispensed with such test or

interview. The petitioner has referred to some of

the appointments thus made. The petitioner refers

to application dated 11.3.2011 filed by his father for

his appointment.

(b) On 16.6.2011, the State issued fresh set of

Maharashtra Police Constables (Recruitment) Rules,

2011 (hereafter referred to as "2011 Rules" for

short), in supercession of the 2006 Rules.

Writ Petition No.9466/2013

According to petitioner, the 2011 Rules became

effective only from 16.6.2011 and were not

applicable retrospectively. In the 2006 Rules,

wards of police employees who were missing or who

retired on medical grounds, were eligible for

compassionate appointment, but 2011 Rules made

provision only for wards of Police employees who

died in harness.

              ig              No doubt, the 2011 Rules saved

      benefits     of     relaxation       in   height        and        chest
            

measurement to wards of police employees reported

missing or retired on medical grounds while

appointing them as Police Constables at the time of

general recruitment. These 2011 Rules were

influenced by Government Resolution dated

22.8.2005 of General Administration Department

which had cancelled previous practice of giving

compassionate appointments to wards/ close

relatives of Government employees who had retired

on medical grounds and had continued the facility

only for employees who had died in harness. It is

claimed that, in spite of such earlier Government

Resolution, there were instances of straightway

Writ Petition No.9466/2013

appointments as Police Constable on compassionate

ground subject to fulfillment of height and chest

measurement. According to petitioner, this was

practice which was correctly followed.

(c) After the application (by father of petitioner),

particulars were called. However, subsequently,

the respondent No.3 - Superintendent of Police,

Beed informed vide letter dated 6.9.2011 that as per

Police Recruitment Rules of 2011, there would be

relaxation in respect of height and chest

measurement but it would be necessary to appear

for physical test and written test. Although the

applications of petitioner and other two persons

were filed earlier, the 2011 Rules were sought to be

enforced. Father of petitioner raised grievance vide

letter dated 23.9.2011 claiming appointment of

petitioner as Police Constable. However, Additional

Director General of Police, Mumbai (respondent No.

2) rejected the request vide letter dated 5.10.2011

applying 2011 Rules, requiring the petitioner to

undergo physical and written test.

(d) The petitioner and other two persons approached

Writ Petition No.9466/2013

the Maharashtra Administrative Tribunal, Bench at

Aurangabad vide Original Application No.798/2011.

Petition gives details as to the order passed in that

Original Application by the Administrative Tribunal

on 18.1.2012. According to petitioner, the Tribunal

had disposed the Original Application, directing the

respondents to decide the application of petitioner

on its own merits and communicate the result.

According to the petitioner, the Original Application

had virtually been allowed, however, the

respondents wrongly and incorrectly interpreted the

directions, and vide letter dated 13/17.7.2012,

informed the petitioner that as per Government

Resolution dated 22.8.2005, compassionate

appointment to wards of employees who have

retired on medical grounds could not be given and

now only wards of employees who have died in

harness could be given compassionate appointment.

(e) The petitioner filed another Original Application No.

606/2012 challenging the communication dated

13/17.7.2012 and sought quashment of the same

and appointment as Police Constable on

Writ Petition No.9466/2013

compassionate grounds, without going through

physical and written test. Vide order dated

28.8.2013, the Administrative Tribunal rejected the

Original Application, taking contradictory view to its

earlier directions in Original Application No.

798/2011 and held that 2011 Rules read with

Government Resolution dated 22.8.2005 were

applicable, and the benefit could not be claimed as

sought by the petitioner.

Thus, the petition has been filed, taking

exception to the orders passed, and petitioner claims

compassionate appointment as Police Constable in the light

of practice and procedure and methodology of 2006 Rules

read with Government Resolution dated 23.2.2004 without

requiring him to appear for physical and written test and

oral interview.

4. We have heard learned counsel for both the

sides. Learned counsel for petitioner has taken us through

the earlier and present rules as well as two Government

Resolutions of 2004 and 2005 and the contentions as raised

Writ Petition No.9466/2013

in the petition were agitated.

5. According to the learned counsel for petitioner,

at the time when father of petitioner retired on medical

grounds, 2006 Rules were applicable and so, the same

Rules need to be applied. According to him, the 2011 Rules

did away with compassionate appointment as Police

Constable for the wards of Police employees who retired on

medical grounds. It is claimed that, in spite of new Rules,

there were instances when there were direct appointments

without requirement of undergoing the recruitment

process. It has been argued that, the impugned judgment

in the Original Application No.606/2012 deserves to be set

aside as in Original Application No.798/2011, the

Administrative Tribunal had ruled in favour of petitioner for

application of the earlier rules and earlier Government

Resolution dated 23.2.2004.

6. The 2006 Rules, Rule 3(2) had the Heading

"Relaxation in educational and physical qualifications".

Below the same there was sub-heading (D) of "Recruitment

on compassionate ground". It provided that, one son or

Writ Petition No.9466/2013

daughter of a policeman who has been missing or has been

retired on compassionate ground on the basis of medical

certificate due to ill health or has died while in service may

be called for the police "recruitment" and he or she may get

the relaxation in respect of physical qualifications. The

provision was basically part of recruitment rules and the

sub-head referred to "recruitment" on compassionate basis.

The only concession given was for height and chest

measurements. The rule did not say that direct

appointment could be made. The Rules show that, for

appointment as Police Constable, the recruitment

procedure as laid down has to be followed. This being so,

relaxation or exemption, if any, has to be made only as per

rules and if required, by amendment.

7. The 2011 Rules came into force w.e.f. 16.6.2011

in supersession of the 2006 Rules. Naturally, any

recruitment on and after 16.6.2011 for the post of Police

Constable could be only as per these rules and when

specially 2006 Rules had been superseded, the earlier rules

cannot be applied. In these 2011 Rules, Rule 3(2)(D) was

modified. The sub-heading was changed to "Policeman's

Writ Petition No.9466/2013

family--". The modified rule now provides for giving

relaxation in height and chest measurement for wards of

policemen who are missing or have retired on medical

grounds. This rule deleted reference to wards of employees

who have died while in service. A new separate rule has

been added as Rule 9, relating to "Recruitment on

compassionate ground", and the rule mentions that, the

compassionate appointment scheme will be adopted as per

the orders issued by General Administration Department

from time to time. But the eligible candidate may get the

relaxation in respect of physical qualifications as

mentioned. Thus, even for such candidates, the relaxations

are, as prescribed.

8. The changes made in 2011 Rules are obvious. It

shows that the legislature wants to make a difference

between the employees who have died in harness and those

who are reported missing or have retired on medical

grounds.

9. The petitioner wants to rely on Government

Resolution dated 23.2.2004 which had specifically provided

Writ Petition No.9466/2013

that wards of police being appointed on compassionate

grounds as Police Constable may not be subjected to

ground test or written test or interview.

10. The Government of Maharashtra in General

Administration Department issued another Government

Resolution dated 22.8.2005 referring to directions of

Hon'ble the Supreme ig Court, that appointments on

compassionate grounds cannot be claimed as hereditary

rights. Inter-alia, the Government Resolution directed that

appointments to Group 'C' and Group 'D' categories cannot

be made for wards of employees who have retired on

medical grounds. Compassionate appointments could be

given in Group 'C' and Group 'D' categories only when

death in harness takes place.

In spite of such Government Resolution dated

22.8.2005, the petitioner is going on insisting that

Government Resolution dated 23.2.2004 may be applied

and he should be directly appointed on compassionate

grounds applying 2006 Rules.

Writ Petition No.9466/2013

11. Learned counsel for the petitioner has tried to

read the orders of Maharashtra Administrative Tribunal,

passed in the earlier Original Application No.798/2011 to

say that there were directions to appoint the petitioner,

applying old rules, but still the respondents did not comply.

In the order now impugned in Original Application No.

606/2012, the Administrative Tribunal appears to have gone

through all the details and these contentions raised by the

petitioner and appropriately answered the contentions. The

Administrative Tribunal referred to the earlier orders in

para 13 of the judgment and came to the conclusion (in

para 16) that the observations of the Tribunal in the earlier

orders were not for deciding the application of the

applicants on basis of Government Resolution dated

23.2.2004 but to decide the same on its own merits. We do

not find error in the approach of the Administrative

Tribunal in its judgment dated 28.8.2013 in Original

Application No.606/2012. The earlier orders in Original

Application No.798/2011 in para 3 of the order dated

18.1.2012 recorded that the applicant had approached the

Tribunal in confused state of mind and the Tribunal then

went on to refer to the different aspects and remitted back

Writ Petition No.9466/2013

the matter asking the respondents to consider the

applications on their own merits.

12. The other argument that 7 other persons were

appointed on compassionate ground though retired for

medical reasons in spite of Government Resolution dated

22.8.2005 has also been answered by the Tribunal. In para

17 of its judgment, the Tribunal has rightly recorded that if

there has been appointment in breach of the Government

Resolution dated 22.8.2005, the same cannot be ground for

the petitioner to claim parity. We find that, wrongful acts

do not become a legal precedent. Action against the

wrongful act as wrong doers at the most may be required to

be taken rather than making that a precedent. There is no

right of equality for wrongful acts.

13. Record shows that, the petitioner did not himself

apply for the compassionate appointment. The applications

were made by his father. The petitioner was shown as 18

years of age when Original Application No.798/2011 was

filed and even now when Writ Petition is filed at the end of

2013, his age is shown only as 19 years. He has not put on

Writ Petition No.9466/2013

record his date of birth. Record does not show that before

Rules of 2011 came into force, petitioner had attained the

age of 18 years. Apart from this, even on merits, in our

view, if a person is to be appointed as a Police Constable,

other than relaxation as provided, it is in public interest

that he should go through the recruitment process as per

rules to see if he/she is eligible and fit for being appointed

as Police Constable. Looking to nature of duties of Police

Constables, there cannot be compromise with fitness of

such employees, even if it is to be a compassionate

appointment. It is different if the compassionate

appointment is for any other Group 'D' post like that of

Peon, when appointment is to be made due to death in

harness.

14. In the matter of State Bank of India Vs. Raj

Kumar, [ reported in (2010) 11 Supreme Court Cases 661 ],

the Hon'ble Supreme Court had occasion to deal with State

Bank of India Scheme for payment of ex-gratia lumpsum

amount as per its terms. In the matter before Hon'ble

Supreme Court, the respondent's mother had made

application dated 6.6.2005 and 14.6.2005 for appointment

Writ Petition No.9466/2013

of the respondent on compassionate ground. When the

applications were being processed and verified, the new

scheme came into force on 4.8.2005 and it was no longer

permissible after the new scheme to make compassionate

appointment. The Bank advised the family of the deceased

to make application for ex-gratia payment, however, the

respondent filed Writ Petition before the Allahabad High

Court. The Allahabad High Court directed the State Bank

to consider the case of the respondents for appointment on

compassionate ground holding that the old scheme applied

and the new scheme was only prospective in operation.

The Hon'ble Supreme Court observed in para 8 of the

judgment as under :-

"8. It is now well settled that appointment on

compassionate grounds is not a source of recruitment. On the other hand it is an exception to the general rule that recruitment to public services should be on the basis of merit, by an open invitation providing equal opportunity to all eligible persons to participate

in the selection process. The dependents of employees, who die in harness, do not have any special claim or right to employment, except by way of the concession that may be extended by the employer under the rules or by a separate scheme, to enable the family of the deceased to get over the sudden financial crisis. The claim for compassionate appointment is therefore traceable only to the scheme framed by the employer for such employment and there is no right whatsoever outside such scheme. An appointment under the scheme can be made

Writ Petition No.9466/2013

only if the scheme is in force and not after it is

abolished/ withdrawn. It follows therefore that when a scheme is abolished, any pending application seeking appointment under the

scheme will also cease to exist, unless saved. The mere fact that an application was made when the scheme was in force, will not by itself create a right in favour of the applicant."

(Emphasis supplied)

15. Keeping above in view, it is quite apparent that

Rules and

the petitioner cannot be permitted to resort to old 2006

Government Resolution dated 23.2.2004

overlooking the subsequent 2011 Rules and Government

Resolution dated 22.8.2005.

16. The learned counsel for petitioner referred to

para 13 of the judgment in the matter of Raj Kumar (supra),

wherein observations were as under :-

" Further, where the earlier scheme is

abolished and the new scheme which replaces it specifically provides that all pending applications will be considered only in terms of the new scheme, then the new scheme alone will apply. As compassionate appointment is a concession and not a right, the employer may wind up the scheme or modify the scheme at any time depending upon its policies, financial capacity and availability of posts."

Writ Petition No.9466/2013

17. According to the learned counsel for petitioner,

the 2011 Rules do not say that after coming into force of

these Rules, the earlier applications will have to be

considered only as per these rules. We find that the

learned counsel is reading the paragraph in isolation and

the judgment has to be read as a whole. Para 8 of the

judgment clearly lays down that when a scheme is

abolished, any pending application seeking appointment

under the scheme will also cease to exist, "unless saved".

When the 2011 Rules are specifically recording that they

are being issued in supersession of 2006 Rules, it cannot be

accepted that any new recruitment could be made de hors

the 2011 Rules. Unless there was a saving clause, earlier

applications claiming benefits under old rules cannot be

saved.

18. We find that petitioner is not entitle for

appointment on compassionate ground as Rules of 2011 do

not cover wards of employees retired on medical grounds

for compassionate appointment. Government Resolution

dated 22.8.2005 is also in public interest, and ensures that,

compassionate appointments do not become hereditary

Writ Petition No.9466/2013

office. Considering the judgment of the Hon'ble Supreme

Court in the matter of Raj Kumar, it is clear that there is no

substance in the arguments advanced by the learned

counsel for petitioner. There is no merit in the writ

petition. There is no reason to interfere with the impugned

judgment of the Maharashtra Administrative Tribunal.

19. The Writ Petition is rejected. Rule is discharged.

No order as to costs.

           (A.I.S. CHEEMA, J.)             (R.M. BORDE, J.)