Bombay High Court
Mohan Venkati Rathod vs Chief Officer, Municipal ... on 7 March, 2016
Bench: R.V. Ghuge
37.WP.3951.15.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 3951 OF 2015
Mohan Venkati Rathod
Age: 28 years, Occu.: Nil,
R/o Loha, Tq. Loha, Dist. Nanded ..PETITIONER
VERSUS
1. The Chief Officer,
Municipal Council, Loha,
Tq. Loha, Dist. Nanded.
2. The District Collector, Nanded,
Dist. Nanded ..RESPONDENTS
WITH
WRIT PETITION NO. 4014 OF 2015
Hari Madhavrao Pawar
Age: 26 years, Occu.: Nil,
R/o Loha, Tq. Loha, Dist. Nanded ..PETITIONER
VERSUS
1. The Chief Officer,
Municipal Council, Loha,
Tq. Loha, Dist. Nanded.
2. The District Collector, Nanded,
Dist. Nanded ..RESPONDENTS
....
Mr. H.V. Patil, Advocate for petitioners.
Smt. S.S. Raut, AGP for Respondent No.1.
Mr. R.P. Bhumkar, Advocate holding for Mr. V.R. Bhumkar,
Advocate for Respondent No.2.
....
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CORAM : RAVINDRA V. GHUGE, J.
DATED : 7th MARCH, 2016
ORAL JUDGMENT :
1. In both these petitions, the petitioners who are similarly
situated have challenged the judgment and order passed by the
Industrial Court dated 19.01.2015 by which Revision ULP No.
51/2012 has been allowed.
2. The common factor involved in these two cases is that the
fathers of the petitioners were the employees of the Respondent
No.1-Municipal Council. They had sought voluntary retirement
from service on account of medical reasons (reasons of ill health).
The petitioners were appointed on compassionate basis by a
resolution passed by the Municipal Council on 30.08.2008. By
virtue of the appointment orders, both the petitioners joined
services.
3. By communication dated 14.09.2009, Respondent No.2-
District Collector informed Respondent No.1 that it had failed to
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comply with the scheme made applicable for appointment on
compassionate basis. The guidelines given in the Government
Resolution dated 22.08.2005 have not been followed. The
compassionate appointments are illegal and therefore deserve to be
set aside. By orders dated 14.09.2009, the petitioners were
terminated without any hearing.
4.
The petitioners preferred Complaint ULP No. 90/2009
raising a grievance of non-compliance of Section 25F and 25G of
the Industrial Disputes Act, 1947, failure to afford an opportunity of
hearing and termination of their services for patently false reasons.
Respondent No.1-Municipal Council filed its written statement and
opposed the complaint. Respondent No.2-District Collector had
also filed a written statement. By the final judgment and order
dated 22.06.2012, the complaint was allowed and Respondent
No.1-Municipal Council was directed to reinstate the petitioners in
service with continuity and full back wages.
5. Respondent No.1-Municipal Council filed Revision ULP
No. 51/2012 before the Industrial Court which has been allowed by
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the impugned judgment. The grievance is that the Industrial Court
has erroneously concluded that due to the Government Resolution
dated 22.08.2005, the petitioners could not be appointed on
compassionate grounds since the fathers of the petitioners had
obtained voluntary retirement on medical ground and had not
passed away while in services. Mr. Patil, learned Counsel for the
petitioners has strenuously criticized the impugned judgment for
having disregarded the principles of natural justice.
6. He further submits that if the District Collector had given
a sufficient opportunity of hearing to the petitioners, they would
have convinced the District Collector that their appointments were
strictly as per the rules and there was no illegality in the
appointments. He submits that even otherwise, the principles of
natural justice cannot be given a go-bye and even if the District
Collector was of the view that the appointments of the petitioners
were illegal, he could have arrived at the said conclusion only after
hearing the petitioners. He therefore prays for setting aside the
impugned judgment and further prays for reinstatement with
continuity and full back wages.
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7. The learned AGP appearing on behalf of Respondent
No.1-municipal council and Mr. Bhumkar, learned Counsel
appearing on behalf of Respondent No.2-District Collector have
opposed this petition. It is submitted that the Municipal Council
did not follow the procedure as is laid down while appointing the
candidates on compassionate basis. The prior approval of the
District Collector is mandated. Same should have been taken
before issuing the appointment orders to the petitioners.
8. It is further submitted that the earlier Government
Resolution dated 08.03.1985 permitted appointment of a legal heir
on compassionate grounds if the parent of the candidate has been
retired or has opted for retirement on account of illness. However,
by the new Government Resolution dated 22.08.2005 which the
Municipal Council had lost sight of, unless the parent of the
candidate passes away while in service due to illness or for any
other reason, the legal heir cannot claim compassionate
appointment. It is submitted that the parents of both these
petitioners have taken voluntary retirement for medical reasons and
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their case does not fall under clause 2(1) of the Government
Resolution dated 22.08.2005 (erroneously mentioned as Clause 10
by the Industrial Court).
9. Mr. Patil has placed reliance upon the reported judgment
of the Supreme Court in V. Sivamurthy Vs. State of Andhra
Pradesh And Others, (2008) 13 SCC 730. He points out
paragraph nos. 6, 9 and 16 which read as under:
"6. On the contentions raised the following questions
arise for our consideration:
(i) Whether compassionate appointment of
sons/daughters/spouses of government servants who
retire on medical invalidation is unconstitutional and
invalid?
(ii) Whether the High Court could have considered and
decided an issue which was not the subject matter of the
writ petitions, particularly when neither party had
raised it or canvassed it?
(iii) Whether the Government was justified in issuing
clarificatory order dated 25.6.1999 that the left over
period of five years should be reckoned from the date of
issue of order of retirement on medical invalidation, is
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unreasonable and arbitrary?
9. The principles relating to compassionate
appointments may be summarized thus :
(a) Compassionate appointment based only on descent
is impermissible. Appointments in public service should
be made strictly on the basis of open invitation of
applications and comparative merit, having regard to
Articles 14 and 16 of the Constitution of India. Though
no other mode of appointment is permissible,
appointments on compassionate grounds are well
recognised exception to the said general rule, carved out
in the interest of justice to meet certain contingencies.
(b) Two well recognized contingencies which are carved
out as exceptions to the general rule are :
(i) appointment on compassionate grounds to meet the
sudden crisis occurring in a family on account of the
death of the bread-winner while in service.
(ii) appointment on compassionate ground to meet the
crisis in a family on account of medical invalidation of
the bread winner.
Another contingency, though less recognized, is where
land holders lose their entire land for a public project,
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the scheme provides for compassionate appointment to
members of the families of project affected persons.
(Particularly where the law under which the acquisition
is made does provide for market value and solatium, as
compensation).
(c) Compassionate appointment can neither be claimed,
nor be granted, unless the rules governing the service
permit such appointments. Such appointments shall be
strictly in accordance with the scheme governing such
appointments and against existing vacancies.
(d) Compassionate appointments are permissible only in
the case of a dependant member of family of the
employee concerned, that is spouse, son or daughter and
not other relatives. Such appointments should be only to
posts in the lower category, that is, class III and IV posts
and the crises cannot be permitted to be converted into a
boon by seeking employment in Class I or II posts.
16. There are of course safeguards to be taken to ensure
the scheme is not misused. One is to ensure that mere
medical unfitness to continue in a post is not treated as
medical invalidation for purposes of compassionate
appointment. A government servant should totally cease
to be employable and become a burden on his family, to
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warrant compassionate appointment to a member of his
family. Another is barring compassionate appointments
to dependants of an employee who seeks voluntary
retirement on medical grounds on the verge of
superannuation. This Court observed in Ram Kesh
Yadav (supra) as follows :
"But for such a condition, there will be a tendency on the
part of employees nearing the age of superannuation to
take advantage of the scheme and seek voluntary
retirement at the fag end of their service on medical
grounds and thereby virtually creating employment by
"succession". It is not permissible for the court to relax
the said condition relating to age of the employee.
Whenever a cut-off date or age is prescribed, it is bound
to cause hardship in marginal cases, but that is no
ground to hold the provision as directory and not
mandatory."
We find that in this case stringent safeguards were in
fact built into the scheme on both counts by GMs dated
4.7.1985 and 9.6.1998."
10. I have considered the submissions of the learned
Counsels and have gone through the judgment cited by Mr. Patil.
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11. It is not in dispute that the parents of the petitioners are
alive and had sought voluntary retirement on medical ground. It is
also not in dispute that the Government Resolution dated
22.08.2005 is made applicable. It is also not in dispute that the
Municipal Council had not taken the prior approval of the District
Collector while issuing the appointment orders to the petitioners. It
is equally undisputed that the petitioners were not heard and
retrenchment compensation for having put in one year of service
was also not paid.
12. It is trite law that compassionate appointments are
governed by certain schemes. It is not a matter of right to be
appointed on compassionate basis.
13. The learned Apex Court in the matter of Canara Bank
and Another Vs. M. Maheshkumar, 2016 (1) MLJ 594 (February
issue) has dealt with the law on compassionate appointment. It
would be apposite to reproduce paragraph nos.7, 9, 11, 12, 16 and
17 of the said judgment which read as under:-
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7) Law with regard to employment on compassionate
ground for dependant of a deceased employee is well settled.
In Sushma Gosain & Ors. vs. Union of India & Ors., (1989)
4 SCC 468, this Court held as thus:
"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 bread earner 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 post should be created
to accommodate the applicant." The settled law which has
been reiterated in various cases has been succinctly
elucidated in MGB Gramin Bank vs. Chakrawarti Singh,
(2014) 13 SCC 583, wherein it was observed that
compassionate appointment cannot be granted as of right
and the application to be decided as expeditiously as possible
and held as under:-
"6. 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
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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 immediately to
redeem the family in distress. It is improper to keep such a
case pending for years."
9) Before adverting to the arguments of the learned
counsel for the parties, it is necessary to examine the scope
of the Scheme dated 8.05.1993 vide Circular No.154/1993
for "compassionate appointment". The object of the Scheme
is to help dependants of employees of Canara Bank who die
or become totally and permanently disabled while in harness
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and to overcome the immediate financial difficulties on
account of sudden stoppage of the main source of income.
The employment under the scheme will be considered only if
there are indigent circumstances necessitating employment
to one of the dependants and the deceased employee's service
record is unblemished. Mere eligibility will not vest a right
for claiming employment. As per para 3.1, application for
employment should be sought within 2½ years from the date
of death of the employees. In para 3.2, it is stated that in
case of the dependant of the deceased employee to be offered
appointment is a minor, the bank may keep the offer of
appointment open till the minor attains the age of majority
provided a request is made to the bank by the family of the
deceased employee and the same may be considered subject
to rules prevailing at the time of consideration.
11) The main question falling for consideration is
whether the Scheme passed in 2005 providing for ex-gratia
payment or the Scheme then in vogue in 1993 providing for
compassionate appointment is applicable to the respondent.
Appellant-bank has placed reliance upon the judgment of
this Court in Jaspal Kaur's case (supra) to contend that the
respondent's case cannot be considered on the basis of 'Dying
in Harness Scheme 1993' when the new Scheme of 2005
providing for ex-gratia payment had been put in place. In
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Jaspal Kaur's case (supra), Sukhbir Inder Singh employee of
State Bank of India, Record Assistant (Cash & Accounts)
passed away on 1.08.1999. Widow of the employee applied
for compassionate appointment in State Bank of India on
5.02.2000. On 7.01.2002, the competent authority of the
bank rejected the application of Jaspal Kaur in view of the
Scheme vis- a-vis the financial position of the family. Against
that decision of the competent authority, the respondent
filed writ petition before the Punjab and Haryana High
Court which has directed to consider the case of Jaspal Kaur
by applying the Scheme formulated on 4.08.2005 when her
application was made in the year 2000. In that factual
matrix, this Court has directed that dispute arising in the
year 2000 cannot be decided on the basis of a Scheme that
was put in place much after the dispute. By perusal of the
judgment in Jaspal Kaur's case, it is apparent that the
judgment specifically states that claim of compassionate
appointment under a scheme of a particular year cannot be
decided in the light of the subsequent scheme that came into
force much after the claim.
12) The same principle was reiterated by this Court in
the case of Bhawani Prasad Sonkar vs. Union of India &
Ors., (2011) 4 SCC 209, wherein it was held as under :-
"15. Now, it is well settled that compassionate employment
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is given solely on humanitarian grounds with the sole object
to provide immediate relief to the employee's family to tide
over the sudden financial crisis and cannot be claimed as a
matter of right. Appointment based solely on descent is
inimical to our constitutional scheme, and ordinarily public
employment must be strictly on the basis of open invitation
of applications and comparative merit, in consonance with
Articles 14 and 16 of the Constitution of India. No other
mode of appointment is permissible. Nevertheless, the
concept of compassionate appointment has been recognised
as an exception to the general rule, carved out in the interest
of justice, in certain exigencies, by way of a policy of an
employer, which partakes the character of the service rules.
That being so, it needs little emphasis that the scheme or the
policy, as the case may be, is binding both on the employer
and the employee. Being an exception, the scheme has to be
strictly construed and confined only to the purpose it seeks
to achieve. ......
17. In Umesh Kumar Nagpal v. State of Haryana, (1994) 4
SCC 138, while emphasising that a compassionate
appointment cannot be claimed as a matter of course or in
posts above Classes III and IV, this Court had observed that:
(SCC p. 140, para 2) "2. ...The whole object of granting
compassionate employment is thus to enable the family to
tide over the sudden crisis. The object is not to give a
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member of such family a post much less a post for post held
by the deceased. What is further, mere death of an employee
in harness does not entitle his family to such source of
livelihood. The Government or the public authority
concerned has to examine the financial condition of the
family of the deceased, and it is only if it is satisfied, that
but for the provision of 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. The posts in Classes III and IV
are the lowest posts in non-manual and manual categories
and hence they alone can be offered on compassionate
grounds, the object being to relieve the family, of the
financial destitution and to help it get over the emergency.
The provision of employment in such lowest posts by making
an exception to the rule is justifiable and valid since it is not
discriminatory. The favourable treatment given to such
dependant of the deceased employee in such posts has a
rational nexus with the object sought to be achieved viz.
relief against destitution. No other posts are expected or
required to be given by the public authorities for the
purpose. It must be remembered in this connection that as
against the destitute family of the deceased there are
millions of other families which are equally, if not more
destitute. The exception to the [pic]rule made in favour of
the family of the deceased employee is in consideration of the
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services rendered by him and the legitimate expectations,
and the change in the status and affairs, of the family
engendered by the erstwhile employment which are suddenly
upturned." ........
20. Thus, while considering a claim for employment on
compassionate ground, the following factors have to be
borne in mind:
(i) Compassionate employment cannot be made in the
absence of rules or regulations issued by the Government or
a public authority. The request is to be considered strictly in
accordance with the governing scheme, and no discretion as
such is left with any authority to make compassionate
appointment dehors the scheme.
(ii) An application for compassionate employment must be
preferred without undue delay and has to be considered
within a reasonable period of time.
(iii) An appointment on compassionate ground is to meet
the sudden crisis occurring in the family on account of the
death or medical invalidation of the breadwinner while in
service. Therefore, compassionate employment cannot be
granted as a matter of course by way of largesse irrespective
of the financial condition of the deceased/incapacitated
employee's family at the time of his death or incapacity, as
the case may be.
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(iv) Compassionate employment is permissible only to one of
the dependants of the deceased/incapacitated employee viz.
parents, spouse, son or daughter and not to all relatives, and
such appointments should be only to the lowest category
that is Class III and IV posts."
16) In Balbir Kaur & Anr. vs. Steel Authority of India
Ltd. & Ors., (2000) 6 SCC 493, while dealing with the
application made by the widow for employment on
compassionate ground applicable to the Steel Authority of
India, contention raised was that since she is entitled to get
the benefit under Family Benefit Scheme assuring monthly
payment to the family of the deceased employee, the request
for compassionate appointment cannot be acceded to.
Rejecting that contention in paragraph (13), this Court held
as under:-
"13. ....But in our view this Family Benefit Scheme cannot
in any way be equated with the benefit of compassionate
appointments. The sudden jerk in the family by reason of the
death of the breadearner can only be absorbed by some
lump-sum amount being made available to the family --
this is rather unfortunate but this is a reality. The feeling of
security drops to zero on the death of the breadearner and
insecurity thereafter reigns and it is at that juncture if some
lump-sum amount is made available with a compassionate
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appointment, the grief-stricken family may find some solace
to the mental agony and manage its affairs in the normal
course of events. It is not that monetary benefit would be the
replacement of the breadearner, but that would undoubtedly
bring some solace to the situation." Referring to Steel
Authority of India Ltd.'s case, High Court has rightly held
that the grant of family pension or payment of terminal
benefits cannot be treated as a substitute for providing
employment assistance. The High Court also observed that it
is not the case of the bank that the respondents' family is
having any other income to negate their claim for
appointment on compassionate ground.
17) Considering the scope of the Scheme 'Dying in
Harness Scheme 1993' then in force and the facts and
circumstances of the case, the High Court rightly directed the
appellant-bank to reconsider the claim of the respondent for
compassionate appointment in accordance with law and as
per the Scheme (1993) then in existence. We do not find any
reason warranting interference."
14. It is thus settled by the consistent view taken by the
Courts that compassionate appointment cannot be claimed as a
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matter of right. The Court cannot travel beyond the provisions
applicable by resorting to a liberal interpretation of the rules
beyond permissible limits or on humanitarian grounds only to
accommodate the claim of a candidate.
15. In the instant case, by clause 2(1) of the Government
Resolution dated 22.08.2005, it has been revised by way of a policy
that even if an employee in the Class C or D category suffers from
Cancer or Paralysis or is temporarily disabled on account of an
accident, his legal heir would not be entitled for compassionate
appointment. The legal heir of a candidate working in the Class C
or D category who has passed away while in service, alone can put
forth a claim for compassionate appointment. By clause 2(2), the
age limit of 40 years has been prescribed for such candidates and by
clause 2(3), the period in which an application can be filed after the
demise of the parent has been reduced from five years to one year.
There is no dispute that the petitioners have, as on date, not
challenged the Government Resolution dated 22.08.2005.
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16. In the matter of V. Sivamurthy (supra) decided by the
Hon'ble Supreme Court, the Government Order issued by the State
of Andhra Pradesh was called in question. The said Government
Order dated 09.06.1998 was dealt with and the learned Apex Court
while deciding the said case has recorded its observations. In the
said case, the right of a candidate whose father has been disabled or
retired due to medical invalidation, has been considered.
17. In the instate case, the Government Resolution dated
22.08.2005 has revised the conditions and the same have not been
challenged by the petitioners. As such, the view taken by the
Hon'ble Supreme Court in the case of V. Sivamurthy (supra), may
not be of any assistance to the petitioners.
18. In the light of the above, I do not find that the impugned
judgment delivered by the Industrial Court could be termed as
being perverse or erroneous. These petitions being devoid of
merits, are therefore dismissed. Rule is discharged.
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19. Nevertheless, the retrenchment compensation payable to
the petitioners u/s 25(F) of the Industrial Disputes Act, shall be
paid by Respondent No.1-Municipal Council within 12 weeks from
today.
(RAVINDRA V. GHUGE, J.)
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