Bombay High Court
Mahatma Phule Krishi Vidyapeeth vs Ahmednagar Zilla Shetmajoor ... on 26 August, 2015
Bench: R.V. Ghuge
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.4750 OF 2012
Mahatma Phule Krushi Vidyapeeth,
At Post Rahuri, Tq. Rahuri,
Dist. Ahmednagar,
Through its Registrar PETITIONER
VERSUS
Ahmednagar Zilla Shetmajoor Union,
Trade Union Centre, Tahsil Kacheri Road,
Ward No.1, Shrirampur, Tq.Shrirampur,
Dist.Ahmednagar,
Through General Secretary. RESPONDENT
Mr.A.S.Shelke, Advocate for the petitioner.
Mr.H.U.Dhage, Advocate for the respondent.
( CORAM : RAVINDRA V. GHUGE, J.)
DATE : 26/08/2015
ORAL JUDGMENT :
1. Rule. Rule made returnable forthwith and heard finally by the
consent of the parties.
2. I have considered the submissions of the learned Advocates for
the respective sides in extenso on 29/06/2015 and 11/08/2015.
Both the learned Advocates today have placed reliance upon reported
judgments.
3. Considering the submissions of the learned Advocates and the
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record before the Court, the following aspects are undisputed :-
a. Punja Thorat was a daily wager who died on 26.12.1992.
b. Pandharinath Mane was a daily wager who died on
07.09.1996.
c. Nanasaheb Punja Thorat is born on 01.06.1968.
d. Vitthal Pandharinath Mane is born on 01.06.1974.
e. Both these persons were 24 years and 22 years old
respectively when their fathers passed away.
f. Nanasaheb and Vitthal filed the applications seeking
appointment on compassionate basis on 15.07.2004 and
16.07.2004, which is about 12 years and 08 years after the
demise of their fathers.
g. The Government Resolution dated 26.10.1994 which is later
on modified, mandated an eligible candidate to apply for
compassionate appointment within five years from the date of
death of his parent or retirement from employment due to
medical reasons.
4. Mr.Dhage had pointed out a list of applicants for
compassionate appointment through the rejoinder of the respondent.
A case was located by way of an illustration at Sr.No.132, wherein the
father of the applicant candidate had two wives. Both of them were
working with the petitioner University. One amongst them namely
Indubai passed away and the second wife continued in employment.
Yet the person at Sr.No.132 was stated to be in the wait list for
compassionate appointment as a legal heir of deceased Indubai.
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5. Mr.Shelke has, on the basis of the record, indicated that the
son of the deceased Indubai was not in the wait list. The illustration
at Sr.No. 132 was a list indicating the persons who had applied for
compassionate appointment. He states on instructions that the said
candidate at Sr.No.132 was not included in the wait list of candidates
for compassionate appointments.
6.
The respondents herein preferred Complaint (ULP) No.91/2004
before the Industrial Court, Ahmednagar praying for appointment on
compassionate basis. The respondent Union had espoused the cause
of the two persons before the Industrial Court who are Nanasaheb
Punja Thorat and Vitthal Pandharinath Mane. By the impugned
judgment and order dated 03/02/2012, Complaint (ULP) no.91/2004
was allowed, the petitioner was held guilty of having committed
unfair labour practices in rejecting the applications of these two
persons and the petitioner was directed to include the names of
Nanasaheb Punja and Vitthal Pandharinath in the waiting list for
appointment on compassionate basis.
7. Mr.Shelke strenuously submits that a daily wager is not
covered by the scheme for compassionate appointments. Unless the
deceased employee was a permanent employee, his legal heir cannot
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be considered for compassionate appointment. He specifically
submits on the basis of the stand taken before the Industrial Court
that the scheme for compassionate appointments does not cover daily
wagers or employees appointed on ad-hoc basis.
8. Mr.Shelke submits that the conclusions of the Industrial Court
are against the very policy of the petitioner / Agricultural University.
When a daily wage employee passes away while being engaged as a
daily wager, it would not have granted the right to his legal heirs to
claim compassionate appointment.
9. He submits that the GR dated 26/10/1994 cannot be
interpreted to include legal heirs of daily wagers or temporary
employees in the list of eligible candidates for compassionate
appointment. The Industrial Court had relied upon a judgment of
the Allahabad High Court and the U.P. Government Servants (Dying
in Harness) Rules, 1974 while appreciating the claim put forth by the
respondent/Union.
10. He, therefore, submits that the Industrial Court should have
considered the factual background in which the applications of
Nanasaheb Punja and Vitthal Pandharinath were rejected. However,
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the Industrial Court considered the aspect of these two persons being
legal heirs of the deceased daily wagers and hence directed their
inclusion in the waiting list.
11. Mr.Dhage, learned Advocate has placed heavy reliance upon
the Government Resolution dated 26/10/1994 on the basis of which
the Industrial Court has allowed the complaint. He submits that
there is no exclusion clause in the said GR by which daily wagers /
temporaries / ad-hoc employees, if pass away in such employment,
their legal heirs would not be entitled for compassionate
appointment.
12. He further submits that the Industrial Court has rightly
considered the GR, the evidence on record and has concluded that
the applications filed by the two employees should have been allowed
by the petitioner. He, therefore, submits that no interference is called
for in the impugned judgment.
13. I find from the said GR dated 26/10/1994 that if employees are
in permanent service, in permanent establishment as well as the
temporary establishment (CRTE), it would entitle their legal heirs for
compassionate appointment. In this background, clause 5-A
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mandates that the legal heir should apply for compassionate
appointment within 5 years from the demise of his parent. It is
informed that presently this condition has been modified and an
application for compassionate appointment is required to be made
within one year from the date of the demise of the parent.
14. Punja Thorat, a daily wager and father of Nanasaheb passed
away on 26/12/1992. Nanasaheb Punja was born on 01/06/1968.
He was, therefore, 24 years old when his father passed away.
Pandharinath Mane, a daily wager and father of Vitthal passed away
on 07/09/1996. Vitthal Pandharinath was born on 01/06/1974 and
was 22 years old when his father passed away. Nanasaheb and
Vitthal filed applications seeking appointment on compassionate
basis on 15/07/2004 and 16/07/2004 which is about 12 years and 8
years after the demise of their fathers respectively. On this ground
alone, the rejection of their applications by the petitioner could not
have been faulted by the Industrial Court.
15. The Apex Court, in the matter of State of Haryana and others
Vs. Rani Devi and another, 1996 (74) FLR 2023 has dealt with a case
of legal heirs of daily wagers / ad-hoc employees claiming
compassionate appointment. It would be apposite to reproduce
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paragraph Nos. 6 and 7 of the said judgment hereinbelow.
"6. It need not be pointed out that the claim of the person
concerned for appointment on compassionate ground is based on
the ground that he was a dependant on the deceased employee.
Strictly this claim cannot be upheld on the touch stone of Articles
14 or 16 of the Constitution. But this Court has upheld this claim
as reasonable and permissible on employee who has served the
State and dies while in service. That is why it is necessary for
the authorities to frame rules, regulations or to issue such
administrative orders which can stand the test of Articles 14 and
16.
7. So far the facts of the present case are concerned, we fail to
appreciate as to how the High Court directed that the
respondents aforesaid be appointed on compassionate ground
when admittedly the respective husbands of the respondents
were working as Apprentice Canal Patwaris for the periods
mentioned above. If the scheme regarding appointment on
compassionate ground is extended to all sorts of casual, ad-hoc
employees including those who are working as Apprentices, then
such scheme cannot be justified on constitutional grounds. It
need not be pointed out that appointments on compassionate
grounds, are made as a matter, of course, without even requiring
the person concerned to face any Selection Committee. In the
case of Umesh Kumar Nagpal vs. State of Haryana & Ors.
(supra) it was said:
"It is obvious from the above observations that the High
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Court endorses the policy of the State Government to make
compassionate appointment in posts equivalent to the posts
held by the deceased employees and above Class III and
IV. It is unnecessary to reiterate that these observations are
contrary to law. If the dependant of the deceased employee
finds it below his dignity to accept the post offered, he is
free not to do so. The post is not offered to cater to his
status but to see the family through the economic calamity."
16. In similar set of facts, the Apex Court in the matter of MGB
Gramin Bank Vs. Chakrawarti Singh, 2013 (139) FLR 469 has
concluded in paragraph Nos. 11 to 14 as under :-
"11. In Webster's Comprehensive Dictionary (International
Edition) at page 1397, 'vested' is defined as Law held by a
tenure subject to no contingency; complete; established by law
as a permanent right; vested interest. (Vide: Bibi Sayeeda v
State of Bihar AIR 1996 SC 516; and J.S. Yadav v State of Uttar
Pradesh (2011) 6 SCC 570)
Thus, vested right is a right independent of any contingency
and it cannot be taken away without consent of the person
concerned. Vested right can arise from contract, statute or by
operation of law. Unless an accrued or vested right has been
derived by a party, the policy decision/ scheme could be
changed. (Vide: Kuldip Singh v Government, NCT Delhi AIR
2006 SC 2652)
12. A scheme containing an in pari materia clause, as is
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involved in this case was considered by this Court in State
Bank of India & Anr. vs. Raj Kumar (2010) 11 SCC 661. Clause
14 of the said Scheme is verbatim to clause 14 of the scheme
involved herein, which reads as under:
"14. Date of effect of the scheme and disposal of pending
applications:
The Scheme will come into force with effect from the date
it is approved by the Board of Directors. Applications
pending under the Compasionate Appointment Scheme
as on the date on which this new Scheme is approved by
the Board will be dealt with in accordance with Scheme
for payment of ex-gratia lump sum amount provided they
fulfill all the terms and conditions of this scheme."
13. The Court considered various aspects of service
jurisprudence and came to the conclusion that as the
appointment on compassionate ground may not be claimed as
a matter of right nor an applicant becomes entitled
automatically for appointment, rather it depends on various
other circumstances i.e. eligibility and financial conditions of
the family, etc., the application has to be considered in
accordance with the scheme. In case the Scheme does not
create any legal right, a candidate cannot claim that his case is
to be considered as per the Scheme existing on the date the
cause of action had arisen i.e. death of the incumbent on the
post. In State Bank of India & Anr. (supra), this Court held that
in such a situation, the case under the new Scheme has to be
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considered.
14. In view of the above position, the reasoning given by the
learned Single Judge as well as by the Division Bench is not
sustainable in the eyes of law. The appeal is allowed and the
impugned judgments of the High Court are set aside."
17. In the light of the above, it is evident that unless the rules
specifically prescribed, legal heirs of daily wagers / ad-hoc employees
/ temporaries would not be entitled for seeking compassionate
appointment.
18. Mr.Dhage has placed reliance upon the judgment of this Court
in the case of Udgir Municipal Council Vs. The State of Maharashtra
and others, decided on 03/03/2015, WP No.5507/2014, to contend
that the legal heir of a Safai Kamgar was held entitled for
compassionate appointment in Complaint (ULP) No.123/2012 and
which judgment of the Industrial Court has not been interfered with
by this Court.
19. I do not find that the said judgment is of any assistance to the
respondent for the reason that the father of the claimant in the said
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case was a permanent employee of Udgir Municipal Council, as is
recorded by this Court in paragraph No.3 of the said judgment. The
facts of the said case are therefore distinguishable.
20. In the light of the above, I find that the Industrial Court has
passed the impugned order out of sympathy towards the said two
applicants. The impugned judgment and order is unsustainable in
the light of the rules applicable to compassionate appointment with
the petitioner and in the light of the judgment of the Apex Court in
the case of State of Haryana (supra) and MGB Gramin Bank (supra).
21. This petition is, therefore, allowed. The impugned judgment
and order dated 03/02/2012 delivered by the Industrial Court is
quashed and set aside. Complaint ULP No.91/2004 stands
dismissed.
( RAVINDRA V. GHUGE, J.)
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