Bombay High Court
Vijaya Ukarda Athor (Athawale) vs State Of Maharashtra Thr. ... on 20 July, 2016
Bench: B.P. Dharmadhikari
1 judg.wp1341.13.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
Writ Petition No.1341 of 2013
Vijaya Ukarda Athor (Athawale),
Age about 33 years,
R/o.- Lane No.1, Mahadeokhori road,
Amravati. .... Petitioner.
Versus
1] State of Maharashtra,
through Secretary for
Urban Development Department,
Mantralaya, Mumbai.
2] The Commissioner,
Amravati Municipal Corporation,
Tq. & Distt. Amravati.
3] Sagar Ukarda Athor (Athawale),
Fule Colony, Benoda,
Tq. & Distt. Amravati. .... Respondents.
Mr. G.D. Asole, Advocate for petitioner.
Mr. J.B. Kasat, Advocate for resp. no.2.
Mr. N.S. Autkar, Advocate for resp. no.3.
Mr. S.B. Bissa, AGP for State.
Coram : B.P. Dharmadhikari &
Kum. I.K. Jain, JJ.
DATE OF RESERVING JUDGMENT : 18-07-2016.
DATE OF PRONOUNCEMENT : 20-07-2016.
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ORAL JUDGMENT [Per Kum. I.K. Jain, J.]
This petition is directed against the order dated 18-09-2012
passed by respondent no.2 Municipal Corporation appointing
respondent no.3 and declaring petitioner ineligible for the
compassionate appointment as she got married.
2]
Briefly stated the facts are;
Late Ukarda Athor (Athawale) was working as a Clerk in
Municipal Corporation, Amravati. He had two wives namely
Shantabai and Kuntabai. Ukarda died on 18-06-1997. Petitioner
Vijaya is daughter of Ukarda through his first wife Shantabai.
Respondent no.3 is son of Ukarda through second wife Kuntabai.
3] After the death of Ukarda, Shantabai submitted an application
on 29-12-1997 to respondent no.2 stating therein that her daughter is
17 years old and on her attaining majority she may be appointed on
compassionate ground in place of her father. On 19-03-1998, after
petitioner attained majority she submitted an application in the
prescribed form to respondent no.2 for her appointment on
compassionate ground. Respondent no.3 also moved an application
for compassionate appointment on 25-05-2009. On 19-04-2012,
petitioner raised her objection to compassionate appointment of
3 judg.wp1341.13.odt
respondent no.3. Thereafter, impugned order dated 18-09-2012 was
passed by Municipal Corporation appointing respondent no.3 Sagar
and declaring petitioner ineligible for compassionate appointment as
she has already got married.
4] Being aggrieved by the order of refusal to compassionate
appointment petitioner filed this Writ Petition. It was dismissed on
18-03-2013, holding that on the date of appointment petitioner was a
married daughter and as per the policy decision taken by State
Government married daughter was not eligible for compassionate
appointment at the relevant time. Petitioner filed an application for
review which was dismissed vide order dated 22-11-2013. Both the
orders were assailed before the Hon'ble Apex Court in Civil Appeal
Nos. 409-410 of 2015 arising out of SLP (C) Nos. 20840-41 of 2014.
The orders in Writ Petition and Review Application came to be set
aside by the Hon'ble Apex Court on 14-01-2015 and the matter is
remitted back for consideration afresh. In paragraph 11, the Hon'ble
Apex Court observed -
"11. In our considered view, the questions
viz.: (i) the effect of "Government Resolution,
General Administration Department, No.Comp.
1093/2335/M.No.90/93/ Eight, dated
26.10.1994 and effect of Clause (3)(a); (ii) the
4 judg.wp1341.13.odt
plea that the appellant submitted application
on 29.12.1997 and 19.03.1998, that the same
was not considered by the authorities for quite
sometime; (iii) at the time when the
applications for compassionate appointment
was considered in 2012 whether 3rd
respondent was eligible to be considered; (iv)
the effect of subsequent policy decision dated
26.02.2013 taken by the State Government as
per which the married daughter is also eligible
to get compassionate appointment; and (v)
such other relevant questions which are to be
examined. In our considered view, instead of
this Court examining the above questions, the
matter is to be remitted back to the High Court
for considering the above questions in the light
of the facts and circumstances of the case."
5] We have heard Mr. Asole, learned Counsel for petitioner,
Mr. Bissa, learned Assistant Government Pleader for respondent
no.1, Mr. Kasat, learned Counsel for respondent no.2 and Mr. Autkar,
learned Counsel for respondent no.3. On hearing the submissions
made by learned Counsel for the parties and the directions issued by
the Hon'ble Apex Court, we propose to take question (v) first which
relates to such other relevant questions, which are to be examined.
This according to us would be regarding object of rules and scheme
providing compassionate employment to dependents of the
deceased.
5 judg.wp1341.13.odt
6] Learned Counsel for petitioner vehemently contended that
before petitioner attained majority her mother submitted an
application in the year 1997 itself informing the Municipal
Corporation that petitioner was 17 years old and on her attaining
majority she be appointed on compassionate appointment in place of
her father. Learned Counsel submitted that after petitioner attained
the age of majority immediately she moved an application in 1998
but respondent no.2 did not respond to those applications. It is
urged that when applications were moved petitioner was unmarried
and she had a precedence over respondent no.3 being a daughter of
Ukarda from the first wife. Learned Counsel submitted that denial of
an appointment to her on compassionate ground had frustrated the
very purpose of compassionate appointment and the order
appointing respondent no.3 an illegitimate son would not sustain.
She, therefore, submits that the impugned order needs to be set
aside and she has to be considered for compassionate appointment
in place of her father.
7] Per contra learned Advocate Mr. Kasat for respondent no.2
argues that compassionate employment is an exception and cannot
be claimed as a matter of right. He contended that Municipal
Corporation never received any application from the mother of
petitioner or from the petitioner in 1997-1998. In 2009, respondent
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no.3 moved an application for compassionate ground which was
objected by petitioner. He submits that petitioner got married in
2000 and as per the rules then prevailing she was not entitled to
compassionate appointment. Learned Counsel submitted that
respondent no.3 being son of the deceased was rightly appointed
and subsequent change in the rules wherein married daughter is
now considered for compassionate appointment would not be
applicable to the case in hand as those rules came into effect in the
year 2013. On the scope and object of compassionate appointment
Shri Kasat placed reliance on -
(1) Smt. Sushma Gosain and others v Union of
India and others[(1989) 4 SCC 468]
(2) Haryana State Electricity Board v Naresh
Tanwar and another[(1996) 8 SCC 23]
(3) V. Sivamurthy v State of Andhra Pradesh and
others[(2008) 13 SCC 730]
(4) Local Administration Department and another v
M. Selvanayagam Alias Kumaravelu[(2011) 13
SCC 42]
(5) Shreejith L. v Deputy Director (Education)
Kerala and others[(2012) 7 SCC 248]
7 judg.wp1341.13.odt
(6) MGB Gramin Bank v Chakrawarti Singh
[(2014) 13 SCC 583]
(7) State Bank of India and others v Surya Narain
Tripathi[ (2014) 15 SCC 739]
(8) Canara Bank and another v M. Mahesh Kumar
[(2015) 7 SCC 412]
Learned Counsel for Respondent No.3 adopted the
submissions advanced by Shri Kasat and relied upon the same
case law.
8] Law with regard to employment on compassionate ground for
dependents of a deceased employee is well settled. In Sushma
Gosain v. Union India[(1989) 4 SCC 468] supra the Hon'ble Apex
Court observed -
"9. We consider that it must be stated
unequivocally that in all claims for appointment
on compassionate grounds, there should not be
any delay in appointment. The purpose of
providing appointment on compassionate ground
is to mitigate the hardship due to death of the
breadearner in the family. Such appointment
should, therefore, be provided immediately to
redeem the family in distress. It is improper to
keep such case pending for years. If there is no
suitable post for appointment supernumerary
8 judg.wp1341.13.odt
post should be created to accommodate the
applicant."
9] The settled law has been further succinctly elucidated in
MGB Gramin Bank v. Chakrawarti Singh[(2014) 13 SCC 583]
supra wherein it was observed that -
"6.
ig Every appointment to public office must be
made by strictly adhering to the mandatory
requirements of Articles 14 and 16 of the
Constitution. An exception by providing
employment on compassionate grounds has been
carved out in order to remove the financial
constraints on the bereaved family, which has lost
its breadearner. Mere death of a government
employee in harness does not entitle the family to
claim compassionate employment. The competent
authority has to examine the financial condition of
the family of the deceased employee and it is only
if it is satisfied that without providing 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. More so, the person claiming such
appointment must possess required eligibility for
the post. The consistent view that has been taken
by the Court is that compassionate employment
cannot be claimed as a matter of right, as it is not
a vested right. The Court should not stretch the
provision by liberal interpretation beyond
permissible limits on humanitarian grounds.
Such appointment should, therefore, be provided
9 judg.wp1341.13.odt
immediately to redeem the family in distress. It is
improper to keep such a case pending for years."
10] The above consistent view has been reiterated in various
judgments by the Hon'ble Apex Court and particularly in Umesh
Kumar Nagpal v. State of Haryana[(1994) 4 SCC 138], Sanjay
Kumar v. State of Bihar[(2000) 7 SCC 192], State of Manipur v.
Mohd. Rajaodin[(2003) 7 SCC 511], SAIL v Madhusudan Das,
[(2008) 15 SCC 560].
11] Having considered the scope and keeping in view the object
of compassionate appointment, we would now advert to question (i)
the effect of "Government Resolution, General Administration
Department, No.Comp. 1093/2335/M. No.90/93/ Eight, dated
26.10.1994 and effect of Clause (3)(a) and question (iv) the effect
of subsequent policy decision dated 26.02.2013 taken by the
State Government as per which the married daughter is also
eligible to get compassionate appointment.
12] Clause 3 of Government Resolution dated 26-10-1994 relates
to an application to be submitted by the family members of the
deceased in accordance with the revised guidelines. Clause 3(a) of
the guidelines reads as under :-
10 judg.wp1341.13.odt
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e`R;[email protected] lsokfuo`Rrh iwohZ dk;ns'khj jhR;k nRrd
[email protected]?ksrysyh [email protected] vfookfgr eqyxh gh fu;ekuwqlkj
use.kqdhl ik= ukrsokbZd eku.;kr ;srhy- ;kf'kok; vU;
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13]
From Clause 3(a) of 1994 government resolution (supra) it is
crystal clear that an unmarried daughter was eligible for
compassionate appointment. Thereafter State Government has
taken a policy decision dated 26-02-2013 and guideline 3(a) in 1994
Government Resolution came to be modified to the extent that in
case family is dependent on a married daughter or married daughter
is the only issue she is eligible for compassionate appointment. By
subsequent Government Resolution a change has been brought to
enable the family in which daughter is the only issue and family is
dependent on her. This is with a specific purpose to tide over the
sudden crisis due to death of the earning member of the family.
14] In the present case Ukarda died on 18-06-1997. Petitioner
was married in 2000. According to her, her mother moved an
application for her on 29-12-1997 and she submitted an application
in prescribed form on 19-03-1998. If this is so petitioner was
11 judg.wp1341.13.odt
governed by Government Resolution dated 26-10-1994 Clause 3(a)
and not by the subsequent Government Resolution dated
26-02-2013. In our considered view Government Resolution dated
26-02-2013 would not have retrospective effect as the State
Government took the policy decision on 26-02-2013 and the same
was given effect from the date of decision.
15]
This takes us to other two questions viz-(ii) the plea that the
appellant submitted application on 29.12.1997 and 19.03.1998,
that the same was not considered by the authorities for quite
sometime and (iii) at the time when the applications for
compassionate appointment was considered in 2012 whether
rd
3 respondent was eligible to be considered.
16] It is the case of petitioner that her mother Shantabai
submitted an application on 29-12-1997 stating that her daughter
was 17 years old and on her attaining majority she may be appointed
on compassionate ground. According to petitioner on 19-03-1998
after she attained majority she submitted an application in the
prescribed form to respondent no.2. Respondent no.2 has
categorically denied having received such applications. In affidavit
cum reply respondent no.2 in paragraph 4 submitted that for the first
time Corporation received an application from respondent no.3 on
12 judg.wp1341.13.odt
25-05-2009 and no other application by petitioner or her mother for
compassionate appointment was available in the office record.
17] In this connection Mr. Asole, learned Counsel for petitioner
submitted that copy of application dated 29-12-1997 has been
received by petitioner under Right to Information Act and copy of
later application dated 19-03-1998 is not received by her from
respondent no.2. This Court vide order dated 04-07-2016 granted
time to the parties to verify whether application dated 19-03-1998
reached the office of respondent no.2. On 18-07-2016 learned
Counsel for petitioner and respondent no.2 informed that no
application like application dated 19-03-1998 is available on records
of Municipal Corporation. Petitioner has not established that
application dated 19-03-1998 was received by the office of
respondent no.2. Application dated 29-12-1997 was by mother of
petitioner. On attaining majority till 2012 petitioner did not make any
representation for appointment on compassionate ground. If really
family was in distress petitioner would not have remained silent till
2012. We therefore find that application dated 29-12-1997 by mother
though received by the office of respondent no.2 was not enough to
process the claim of petitioner particularly in the absence of any
effective step at her end on attaining majority. Compassionate
employment cannot be claimed as a matter of right as it is not a
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vested right. Such appointment is to be provided immediately to
redeem the family in distress. Inaction on the part of petitioner for 14
long years clearly indicate that family was not in distress and
petitioner was not in need of immediate employment.
18] So far as Respondent no.2 is concerned he is the son of
Ukarda from his second wife Kuntabai. He gave an application for
compassionate appointment on 25-05-2009. Petitioner raised
objection on 19-04-2012. Considering the application and objections
raised by petitioner respondent no.3 was appointed by order dated
18-09-2012. By the same order petitioner was declared ineligible for
compassionate appointment as she got married. It is pertinent to
note that till respondent no.3 submitted an application to respondent
no.2 petitioner did not approach the Authority and it was only after
respondent no.3 moved an application she raised an objection.
Petitioner in her objection points out application dated 29-12-1997
moved by her mother. Surprisingly, she does not mention application
dated 19-03-1998 allegedly moved by her after reaching majority.
Had her family been in distress and need of support, there would
have been number of representations after 19-3-98 by her. Facts
show that she woke up only in 2012. This casts cloud on her
conduct.
14 judg.wp1341.13.odt
19] Petitioner got married in 2000. It is not her case that after
marriage she stayed with her mother or her mother was solely
dependent on her. In the absence of any timely action on the part of
petitioner we find that no factual error was committed by respondent
no.2 in appointing respondent no.3 on compassionate ground.
However we do not appreciate the action of respondent no.2 ignoring
an important aspect of law that after a lapse of considerable period
compassionate employment cannot be granted.
20] We have also perused the judgment dated 15-01-2005
delivered in Regular Civil Suit No.40 of 2001 by learned Civil Judge,
Junior Division, Anjangaon Surji. The suit was filed by petitioner and
her mother Shantabai against second wife Kuntabai and her two
sons. The suit was for declaration of the status of plaintiffs as legal
heirs of deceased Ukarda having right in the property, pension and
funds of the deceased. Respondent no.3 was defendant no.2 in the
said suit. Civil Court held defendants 2 and 3 also as legal heirs of
deceased Ukarda. While recording the reasons for appointment of
respondent no.3, Authority had stated that petitioner being married
daughter was not eligible for compassionate appointment and so
respondent no.3 being the legal heir of Ukarda was considered for
such appointment.
15 judg.wp1341.13.odt
21] In the above premise we find that in 2012 respondent no.3 was
eligible to be considered and petitioner being governed by previous
Government Resolution was not eligible for compassionate
appointment. We did not notice any perversity, illegality or
incorrectness in the impugned order.
22]
Hence, Writ Petition is dismissed. No order as to costs. Rule
is discharged.
JUDGE JUDGE
Deshmukh
16 judg.wp1341.13.odt
C E R T I F I C A T E
"I certify that this Judgment uploaded is a true and
correct copy of original signed Judgment."
Uploaded by : Uploaded on :
(Deshmukh) 20/07/2016
P.A. to the Hon'ble Judge.
