Bombay High Court
Swapanali Shekhar Kalbhor And Anr vs State Of Maharashtra And Ors on 11 October, 2017
Bench: S.C. Dharmadhikari
ASWP7797.14.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 7797 OF 2014
1 Swapanali Shekhar Kalbhor, aged 23 years ]
presently residing near Khandoba Mandir, ]
Rahatani Gaon, Pimpri, Pune. ]
2 Gulabbai Kailash Sathe, aged about 48 ]
years, presently residing at Venunath ]
Apartment, Kharade Patil Bldg., Flat ]
No.16-B, Pimple Nilak, Aundh Camp, Pune ] ... Petitioners
Versus
1 State of Maharashtra, through the Office ]
of Govt. Pleader, High Court, A.S. Mumbai ]
2 Pimpri-Chinchwad Municipal Corporation ]
through its Commissioner, ]
Mumbai-Pune Road, Pimpri, Pune. ]
3 The Asst. Commissioner (Admn.) ]
Pimpri-Chinchwad Municipal Corporation ]
Mumbai-Pune Road, Pimpri, Pune, ] ... Respondents
Mr. Vijayprakash Yadav for the Petitioners.
Mr. B.V. Samant, AGP, for the Respondent No.1-State.
Mr. G.H. Keluskar for the Respondent Nos.2 and 3.
CORAM : S.C. DHARMADHIKARI &
SMT. BHARATI H. DANGRE, JJ.
WEDNESDAY, 11TH OCTOBER, 2017
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ORAL JUDGMENT. : [Per S.C. Dharmadhikari, J.]
1 By this petition under Article 226 of the Constitution
of India, the petitioners are seeking the following reliefs :
"(b) For a writ or an order in the nature of writ of
this Hon'ble Court giving a declaration that the policy
of the Respondents as reflected in Government
Resolution dated 26.2.2013 is violative of Articles 14,
15 and 16 of the Constitution of India with particular
reference to the arbitrary discrimination being made
against married sister of the deceased upon whom the
other legal heirs of the deceased are fully dependent.
(c) For a writ or an order in the nature of a writ
of this Hon'ble Court directing the Respondents to
immediately and forthwith rectify and incorporate
eligibility of married sister of the deceased upon
whom the legal heirs of the deceased are fully
dependent as eligible for compassionate
appointment."
2 Based on the above declarations and requests, the
next prayer is to quash and set aside the decision dated 22 nd
November, 2013, of the third respondent and taken for and on
behalf of the respondent No.2.
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3 The petitioners then seek a writ of mandamus or any
other writ, order or direction directing the respondents to
forthwith consider appointing the petitioner No.1 in place of her
deceased brother Sachin Kailash Sathe.
4 On the earlier occasion and after hearing both sides,
this Court passed the following Order :
"1 After having heard both sides and
particularly perusing the impugned communication,
we are satisfied that on 26th February, 2013, the
Government of Maharashtra issued a Resolution on
the subject of compassionate appointment. If that is
the policy enunciated by the State and the current
one fully applicable even to Municipal services, then,
we see no justification for the Municipal Corporation
departing from this laudable policy framed by the
State.
2 In the event, as in this case, the deceased has
only a married sister and mother and none else in the
family, then, the sister, though married, having
assured the Court that if granted an opportunity to
serve the Pimpri-Chinchwad Municipal Corporation,
the income derived from the salary would be
exclusively spent on looking after the mother of the
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deceased. She will be taken care of fully, including
her medical needs.
3 In the circumstances, we do not see any
reason why the Municipal Commissioner / Assistant
Municipal Commissioner (Administration) of that
Corporation should deny an opportunity to the
petitioner No.1 to serve the Municipal Corporation if
she is otherwise eligible.
4 We grant Mr. Keluskar time till 11 th October,
2017, to take appropriate instructions. Stand over to
11th October, 2017 for Passing Orders.
5 We are passing this order, mindful of the fact
that there is a subsequent Government Resolution
dated 17th November, 2016, copy of which is placed
on record by Mr. Samant, learned Assistant
Government Pleader. Secondly, this order is passed
because there is no denial of the factual statement
made in the petition that it is both the petitioners who
were dependent on the income of the deceased. That
was the only source from which they were sustaining
themselves."
5 Since both Mr. Samant and Mr. Keluskar stated that the
current policy is contained in the Government Resolution dated
21st September, 2017, copy of which is handed over and taken on
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record, and marked "X" for identification, it is imperative that we
decide the matter on merits.
6 Hence, Rule.
7 Respondents waive service. By consent, Rule is made
returnable forthwith.
8 The short point that is involved in this petition is
whether the petitioners before this Court, who are claiming to be
dependents of the deceased Sachin Kailash Sathe (for short "the
deceased") can apply for being appointed in the services of the
Pimpri-Chinchwad Municipal Corporation. They were seeking
appointment because of the policy of the State as also the
Municipal Corporation to appoint, the dependents of the deceased
employee who dies is service, on compassionate basis. Thus, the
claim for compassionate appointment being denied to the
petitioner No.1 on the basis that she is a married sister and a
married sister does not find any place in the scheme of
compassionate appointment or policy framed in that behalf by the
State that we are required to assign elaborate reasons.
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9 As is clear from the cause title, the petitioner No.1 is
the married daughter of the petitioner No.2. The petitioner No.2
is fully dependent upon the only legal heir, namely, petitioner
No.1. The first respondent-State has been impleaded as party-
respondent because through the General Administration
Department of the State, the policy of compassionate
appointment has been set out. That policy is adopted by the
second respondent Pimpri-Chinchwad Municipal Corporation (for
short "PCMC"). The third respondent is the Administrative
Officer who has issued the impugned order dated 22 nd November,
2013.
10 The petitioners state that one Kailash Baburao Sathe
was employed with the second respondent. While in service, he
expired on 11th January, 2001. Upon his demise, the said
Sachin / deceased was appointed on compassionate basis.
11 On 8th September, 2012, Sachin expired while in
employment of the respondent No.2. Upon his demise, the
surviving legal heirs are the petitioner No.1, his married sister,
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and the petitioner No.2, the mother.
12 On 26th February, 2013, a Government Resolution was
issued setting out a scheme of compassionate appointment on
sympathetic grounds. That is to enable the dependents of a
deceased employee who dies while in service, to tide over the
immediate financial crisis and in the event the old, aged and
infirm parents are dependent upon such an employee, then, they
as well as the family of the deceased, including his widow and
children are able to sustain themselves. There was certain
improvement in this policy and which we shall refer to in some
details hereafter. What the petitioners have pointed out is that
the second petitioner received a communication from the PCMC.
The said communication, copy of which is at Annexure-A, was in
response to an application dated 29th January, 2013, which was
forwarded by the petitioner No.2. By that application, the
petitioner No.2 requested that the married sister of the deceased,
namely, petitioner No.1 be appointed on compassionate grounds.
The petitioner No.2 made reference to the Government
Resolution of 26th October, 1994 and 26th February, 2013,
enunciating a welfare and benevolent measure. It was pointed
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out there is no prohibition nor is there any bar against employing
and appointing a married daughter or married sister of the
deceased employee provided the family has no other eligible
member or the deceased leaves behind only female heirs. It is
stated that though the petitioner No.1 is married, she has the
consent of her in-laws and her husband so as to provide for the
maintenance of the petitioner No.2 from the income earned as
salary pursuant to such compassionate appointment. Therefore,
the mother of the deceased requested that in the event the
petitioner No.1 is appointed, she will not suffer in her old age.
13 It is that request which has been denied, but with
reference to the very same Government Resolutions.
14 On 26th February, 2013, a revised scheme of
compassionate employment so as to employ a married daughter
of the deceased came to be framed and duly published. That
Government Resolution dated 26th February, 2013, refers to the
earliest policy of 26th October, 1994/Government Resolution, the
subsequent Government Resolution dated 23 rd August, 1996 and
thereafter another Government Resolution of 17th July, 2007, on
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the same subject.
15 The preamble to this Government Resolution of 26 th
February, 2013, copy of which is at Annexure-B to the petition, in
clearest terms states that the Government Resolution of 26 th
October, 1994, which was itself a revised policy, and subsequent
policies are in force. However, at times the deceased employee
serving the State has been found to be survived by an unmarried
son or an unmarried daughter or an adopted son or adopted
unmarried daughter. If the son of the deceased employee is not
alive and if none other in the family are eligible for appointment,
then, his daughter-in-law or any other person who is dependent
upon the unmarried deceased employee or his unmarried sister
or brother or his divorced or widowed daughter or sister can be
considered as eligible for being appointed. This policy was then
brought into effect and a reference was made therein to an order
passed by this Court. Our attention has been invited to the
decision of the State and which is contained in paragraph 2 of this
Government Resolution. It is submitted that on 6 th December,
2013, a Division Bench of this Court to which one of us (S.C.
Dharmadhikari, J,) was a party, decided Writ Petition No.11987
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of 2012 filed by one Swara Sachin Kulkarni vs. The
Superintending Engineer, Pune Irrigation Project Circle & Anr.
The argument therein was that the deceased Ashok Kulkarni
working as a wireman with the Superintending Engineer's Office
expired while in service on 10th September, 2003. His daughter
applied for appointment on compassionate ground on 23 rd
December, 2003. After her application was accepted, it was
processed and a list of employees who were claiming
compassionate appointment was prepared, the name of Swara
was entered at Sr. No.107 in that Waiting List. Thereafter there
being no vacancies an appointment order could not be issued.
The Wait List moved ahead further and eventually Swara's name
appeared at Sr. No.10. The Government Resolution of 22 nd
August, 2005, was issued by the State and the petitioner Swara
was expecting an appointment order being issued. However,
relying upon the Government Resolution dated 26 th October,
1994, Swara's name was deleted. That was on the ground that if
the candidate seeking employment on compassionate grounds is
more than forty years of age or married, then, his/her name or
claim cannot be considered.
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16 It is the later controversy which was dealt with by this
Court and in dealing with the same, the following observations,
according to the learned counsel appearing for the petitioners
before us, are pertinent :
"2 The petitioner claim that her name has been
deleted only because she is married. A married
daughter could not have laid a claim for
compassionate employment, because in the
perception of the respondent nos.1 and 2, she is no
longer a part of the family of the deceased. It is this
stand, which is questioned before us, in this writ
petition. Mr.Kulkarni, appearing on behalf of the
petitioner submitted that the facts in this case are
peculiar. The deceased only had daughters. Both
daughters are married. The second daughter is not
interested in the job. The petitioner is interested in
the job because she is supporting her widowed
mother. The mother has nobody to look forward to
except the petitioner - daughter. The petitioner has
asserted that even after her marriage she is looking
after her mother in her old age. In such
circumstances, the deletion of her name from the list
is violative of the constitutional mandate of Article 14
and 16 of the Constitution of India.
3 It is on this point that we have heard the
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Counsel and after perusing the writ petition and all
the annexures thereto, so also the affidavit placed on
record, we are of the opinion that the petitioner's
name could not have been deleted from the list. The
compassionate employment is to enable the family to
get or tide over a financial crisis. As the petitioner is
the only member who can earn and support the
mother in her old age, so also the emoluments
including the pension of the deceased are inadequate
that she was interested in pursing her claim. The
name of the petitioner was therefore duly reflected in
a list initially and thereafter a recruitment or
appointment exercise was undertaken. The
petitioner therefore was wait listed at Serial No.10.
Thus, initially her number was 1070 and which
advanced to Serial No.10. We find that the
respondents insisted on the petitioner submitting a
certificate that she is unmarried, that is by a
communication dated 21st May, 2011. The petitioner
pointed out that such an insistence is impermissible
in law. A letter dated 27th February, 2009 was issued
communicating to her that her name has been deleted
from the wait list owing to her marriage. If the
petitioner's name is to be deleted from the list
because of her marriage then insistence on
production of a certificate about her marital status in
the year 2011 was clearly an exercise visited by non-
application of mind. The deletion by letter dated 27 th
February, 2009 itself is violative of constitutional
mandate. We cannot expect a Welfare State to take a
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stand that a married daughter is in-eligible to apply
for compassionate appointment simply because she
becomes a member of her husband's family. She
cannot be treated as not belonging to her father's
family. The deceased was her father. In this case, the
deceased has only daughters. Both are married. The
wife of the deceased and the mother of the daughters
has nobody else to look to for support, financially and
otherwise in her old age. In such circumstances, the
stand of the State that married daughter will not be
eligible or cannot be considered for compassionate
appointment violates the mandate of Article 14, 15
and 16 of the Constitution of India. No discrimination
can be made in public employment on gender basis. If
the object sought to be achieved is assisting the
family in financial crisis by giving employment to one
of the dependents, then, undisputedly in this case the
daughter was dependent on the deceased and his
income till her marriage. Even her marriage was
solemnized from the income and the terminal benefits
of the deceased. In such circumstances if after
marriage she wishes to assist her family of which she
continues to be a part despite her marriage, then, we
do see how she is dis-entitled or ineligible for being
considered for compassionate employment. This
would create discrimination only on the basis of
gender. We do no see any rationale for this
classification and discrimination being made in
matters of compassionate appointment and
particularly when the employment is sought under
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the State. The State is obliged to bear in mind the
constitutional mandate and also directive principles
of the State Policy. The point raised in this case is
covered by the Judgment of a Division Bench in Writ
Petition No.1284 of 2011 decided on 1.8.2011 and a
Judgment of a learned Single Judge in W.P. No.6056
of 2010 decided on 26th October, 2010, all of this
Court.
4 In such circumstances, the communication
dated 27th February, 2009, copy of which is annexed
at page 30 of the paper book cannot be sustained. The
writ petition is allowed. This communication is
quashed and set aside and equally the further
communications in pursuance thereof. The
petitioner's name shall stand restored to the wait list
maintained by respondent nos.1 and 2 for
appointment on compassionate basis. However, we
clarify that we have not issued any direction to
appoint the petitioner. Let her case be considered in
terms of the applicable policy of Compassionate
Appointment or Employment together with others.
Her name should not be deleted or omitted only
because she is married and that is why we have
restored her name in the wait list. Beyond that we
have not issued any direction."
17 The counsel would argue that if this is a clear case of
discrimination only because of the marital status, then, based on
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the reasoning of the Division Bench, there seems to be no
justification for above classification in matters of compassionate
appointments. Eventually the object and purpose of such
appointments should not be lost sight of when the claims of the
dependents of the deceased are considered. We are in the age of
nuclear families. That will have to be borne in mind because none
has any control over it. If the deceased is not survived by a male
heir, then, merely because there are daughters in the family and
they are married does not mean that the widow or wife or the
mother of the deceased employee or his parents, wholly
dependent on his income, should be left without any sustenance.
The whole object is that in their old age or in tragic
circumstances, when they are entirely dependent on the income
of the deceased, they should be able to tide over the immediate
financial crisis. Such a crisis continues because there is no
earning member left in the family. The argument is that if this is
the object and purpose sought to be achieved, then, it is wholly
defeated and frustrated by the interpretation placed on the
present policies by the respondents.
18 Mr. Samant and Mr. Keluskar would submit that the
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Government Resolutions which were pointed out, namely, 17 th
November, 2016 as also 21st September, 2017, follow the earlier
Government Resolution of 26th February, 2013. Though the
preamble to both these Government Resolutions refer to several
judgments and decisions of this Court, what has been found is
that if the Government Resolution dated 26th February, 2013,
stands cancelled, then, some direction had to be issued and
provided so as to guide the State as also such entities and
authorities who are either discharging Governmental duties or
performing such functions as are performed by the Government
or the State itself. Therefore, Municipal Corporations like PCMC /
public bodies / local authorities, enterprises and units of the State
would have to be guided and that is why the order in which the
compassionate appointment claims can be considered has been
indicated in this Government Resolution. In the event the
deceased leaves behind husband/wife, son/daughter either
married or unmarried, then, if the deceased had a son but who
had also expired or he is survived but is not eligible for
employment, then, his daughter-in-law, his divorced daughter or
sister, a daughter who has unfortunately been rendered destitute
or homeless or his widowed daughter or sister can be considered.
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Finally, if the deceased employee was unmarried, then, only those
wholly dependent upon him, namely his brother and sister would
be eligible for compassionate employment.
19 The other stipulations in this Government Resolution
need not be referred to. This is a Government Resolution followed
by another Government Resolution dated 21 st September, 2017.
This Government Resolution seeks to subsume all prior
Government Resolutions and decisions on the subject into a single
policy. This Government Resolution has an Annexure. The
Government Resolution refers to earlier Government Resolutions
and in the Annexure or Schedule-A thereto, the clause 4 once
again reiterates the scheme and sets out those eligible for
compassionate appointment on the death of the deceased
employee in service.
20 We have perused all these Government Resolutions
and we would not like to place such an interpretation thereon
which would completely frustrate the object and purpose of
compassionate employment. As is held by the Hon'ble Supreme
Court in several decisions that compassionate appointment
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provides an opportunity to those surviving the deceased
employee and wholly dependent on his income to sustain
themselves. It is a scheme which assists them. It is a scheme
which also takes care of old, aged, infirm parents, widow and the
immediate family of the deceased. In most of these cases, it was
noticed by the State as also by the Hon'ble Supreme Court that
the employees in Government employment join it at a fairly
young age and post their marriage or immediately prior thereto
and thereafter upon his or her income, his wife and children and
on most occasions, his parents are dependent. If there is only one
earning son in the family, then, ordinarily and normally he takes
care of all the family members. He is responsible and, therefore,
has to arrange for the education and marriage of his younger
brothers and sisters. He also has to provide for the parents in
their old age. All these are normal expectations and from an
earning member of the family. If because of modern day tensions,
stress, he himself becomes a victim of a disease which is life-
threatening or succumbs thereto, then, his family has none to
look up to for their sustenance. It is towards that end that the
scheme has been directed. It is, therefore, a comprehensive
measure which fulfills the mandate of Articles 14 and 16 of the
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Constitution of India so also the guiding principles, namely,
Articles 39, 40, 41 and 43 of the Directive Principles of State
Policy enunciated in the Constitution. If such is the benevolent
and beneficial purpose sought to be achieved, then, an
interpretation consistent therewith has to be placed on the
clauses or paragraphs of the Government Resolution. Merely
because the Government Resolutions do not specifically mention
against the name of the sister, 'married' or 'unmarried', does not
mean that the sister of the deceased surviving him is not fulfilling
the family responsibility. If, as in this case, the deceased was
survived by his old mother and married sister and has no other
surviving legal heir who can be accommodated under this policy,
then, we do not see how the policy prohibits the respondents from
considering the request of the petitioner No.2 - mother of the
deceased. It is her request to appoint the petitioner No.1. Though
the petitioner No.1 is the married sister of the deceased, she has
undertaken to look after her mother from the income that she
can generate by way of salary in the event she is appointed on
compassionate basis and in place of her deceased brother. There
is nobody else other than this sister. Thus, the father of the
deceased had only one son, the deceased, and only one daughter,
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the petitioner No.1. The unfortunate part in this case is that even
the father of the deceased son died while in service. Then, the
deceased was appointed in his place. Unfortunately, even the son
expired while in service. Now the aged mother requests the
employer, namely, a public body like PCMC to assist her in her old
age for she was entirely dependent on the income of the deceased
son and after his sad demise, if there is a married sister of the
deceased and only daughter of the petitioner No.2, then, there is
no prohibition in considering her claim for compassionate
appointment. All the more when she has assured the Court
through her counsel that her husband and her in-laws have no
objection to the salary income being completely handed over or
utilised for looking after the petitioner No.2. In such
circumstances and there being no claimant other than the
petitioner No.1, we do not see any impediment for the PCMC to
consider the claim of the petitioners herein.
21 On a perusal of the Government Resolutions, we do
not find that paragraphs or clauses thereof have to be read in
such a manner so as to rule out completely the claim of a party or
person like the petitioner No.1. If that is held to be completely
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ruled out or excluded from the policy, then, we hasten to add that
the same is not consistent with the constitutional mandate and
enshrined in Articles 14 and 16 and the above Directive
Principles of the State Policy. There is thus no rationale or nexus
for this classification which can safely be termed as a
discrimination. If a classification has to have a reasonable basis,
the nexus of the same with the purpose or object sought to be
achieved ought to be clearly established. We do not see how the
exclusion as is suggested by the PCMC of a claimant like the
petitioner No.2 can be held to be in tune with the constitutional
scheme. It does not befit a employer like the State to reject such
claims and by indulging in hair-splitting or taking a hyper
technical view of the matter.
22 Pertinently, the GR's have not been challenged on the
ground that they are violative of the constitutional mandate
enshrined in Article 16(2) of the Constitution. That Article reads
as under :
"16 Equality of opportunity in matters of
public employment. -
(1) ............
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(2) No citizen shall, on grounds only of religion,
race, caste, sex, descent , place of birth, residence or
any of them, be ineligible for, or discriminated against
in respect of, any employment or office under the
State."
23 Mr. Samant and Mr. Keluskar would submit that the
policy is likely to be misused to accommodate each and every
member of the family irrespective of the dependency test or the
authority satisfying itself about the factual aspects, namely,
whether such claimant-member was indeed residing with the
deceased, the composition of the family etc. Their apprehension
is it would be used as a permit or licence to fill up vacant public
posts by a backdoor method. Firstly, such is not the case before
us as the facts are undisputed. Secondly, there is a binding
principle in the very decision of the Hon'ble Supreme Court in
the case of Auditor General of India & Ors. vs. Anantha
Rajeshwar reported in AIR 1994 SC 1521. The Hon'ble Supreme
Court held as under :
"2 The only question that arises for decision is
whether the Memorandum is violative of Article
16(2) of the Constitution ? Article 14 genus provides
equality of opportunity and equal protection of the
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laws and it prohibits discrimination. Article 16(2)
species prohibits discrimination, thus :
"No citizen shall, on grounds only of religion,
race, caste, sex, descent, place of birth, residence
or any of them, be ineligible for, or discriminated
against in respect of, any employment or office
under the State."
The High Court held that the appointment of
son/daughter/near relative (widow) of the erstwhile
employee of the Government would tantamount to
appointment on descent and therefore is violative of
Article 16(2). It is contended for the State that the
Memorandum envisages appointments purely on
compassionate grounds in the circumstances
enumerated in Office Memorandum No. 14014/l/77-
Estt.(D), Government of India, dated November 25,
1978. It provides that Secretaries or Joint
Secretaries in the Ministries/Departments are
competent to appoint, in relaxation of the procedure
of recruitment through the Staff Selection
Commission or Employment Exchange, but subject to
the other requirements set out therein, the
son/daughter or near relative of the government
servant (it is stated by the learned counsel that
widow of the deceased is near relative), who died in
harness leaving his family in immediate need of
assistance, in the event of there being no other
earning member in the family, to a Group 'C' post or
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Group 'D' post. After the proposal for such
appointment has been approved by the Joint
Secretary incharge of the Administration or
Secretary in the Ministry or Department concerned,
it would be made. The Memorandum also provides for
the fulfilment of the qualifications prescribed for the
post. So it is not violative of Article 16(2). We find no
force to accept in toto.
3 In paragraph 5, it is stated that in deserving
cases even where there is an earning member in the
family, a son/daughter/near relative of a government
servant who dies in harness leaving his family in
indigent circumstances, may be considered for
appointment to the post. All such appointments are,
however, to be made with the prior approval of the
Secretary of the Ministry/Department concerned,
who before approving the appointment will satisfy
himself that the grant of the concession is justified,
having regard to the number of dependents left by the
deceased government servant, the assets and
liabilities left by him, the income of the earning
member as also his liabilities, whether the earning
member is residing with the family of the deceased
government servant and whether he should not be a
source of support to other members of the family.
4 In paragraph 6, it is stated that in
exceptional cases when a Department is satisfied that
the condition of the family is indigent and in great
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distress, the benefit of compassionate appointment
may be extended to the son/daughter or near relative
of government servant retired on medical grounds
under Rule 36 of the Central Civil Service (Pension)
Rules, 1972 or corresponding provisions in the
Central Civil Regulations. Para 7 dealt with the ban on
recruitment in Group 'C' posts and direction was
given to make appointments to group 'D' posts and
paragraph 8 relates to the certain clarifications and
para 9 relates to the imposition of the conditions or
the condition to be accepted by the person appointed
to the post. Para 11 (a) provides that the
appointments made on grounds of compassion should
be done in such a way that persons appointed to the
post do have the essential educational and technical
qualifications required for the post consistent with
requirement of the maintenance of efficiency of
administration. Para 11 (b) provides that these
instructions do not restrict employment of
sons/daughters or near relatives of deceased Group
'D' employee to a Group 'D' post alone. As such a
son/daughter or near relative of a deceased employee
can be appointed to a Group 'C' post for which he is
educationally qualified, provided a vacancy in Group
'C' exists and para 11 (c) provides that the
appointments have to be cleared at the Head of
Department level, and as all the vacancies are to be
pooled for compassionate appointment, it may be
ensured that subordinate and field offices got an
equitable share in the compassionate appointments.
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5 A reading of these various clauses in the
Memorandum discloses that the appointment on
compassionate grounds would not only be to a son,
daughter or widow but also to a near relative which
was vague or undefined. A person who dies in harness
and whose members of the family need immediate
relief of providing appointment to relieve economic
distress from the loss of the bread-winner of the
family need compassionate treatment. But all possible
eventualities have been enumerated to become a rule
to avoid regular recruitment. It would appear that
these enumerated eventualities would be breeding
ground for misuse of appointments on compassionate
grounds. Articles 16(3) to 16(5) provided exceptions.
Further exception must be on constitutionally valid
and permissible grounds. Therefore, the High Court is
right in holding that the appointment on grounds of
descent clearly violates Article 16(2) of the
Constitution. But, however it is made clear that if the
appointments are confined to the son/daughter or
widow of the deceased government employee who
died in harness and who needs immediate
appointment on grounds of immediate need of
assistance in the event of there being no other
earning member in the family to supplement the loss
of income from the bread-winner to relieve the
economic distress of the members of the family, it is
unexceptionable. But in other cases it cannot be a rule
to take advantage of the Memorandum to appoint the
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persons to these posts on the ground of compassion.
Accordingly, we allow the appeal in part and hold that
the appointment in para 1 of the Memorandum is
upheld and that appointment on compassionate
ground to a son, daughter or widow to assist the
family to relieve economic distress by sudden demise
in harness of government employee is valid. It is not
on the ground of descent simpliciter, but exceptional
circumstance for the ground mentioned. It should be
circumscribed with suitable modification by an
appropriate amendment to the Memorandum limiting
to relieve the members of the deceased employee who
died in harness from economic distress. In other
respects Article 16(2) is clearly attracted."
24 Pertinently, this decision has been explained in the
later decision by the Hon'ble Supreme Court reported in the case
of V. Sivamurthy & Ors. vs. State of Andhra Pradesh & Ors. 2008
AIR Supreme Court Weekly 6114. The Hon'ble Supreme Court
held as under :
"7 Article 16 of the Constitution bars
discrimination in employment on the ground only of
descent. If the service rules or any scheme of
government provides that whenever a government
servant retires from service, one of his dependants
should be given employment in his place, or provides
that children of government servants will have
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preference in employment, that would squarely fly in
the face of prohibition on the ground of descent.
Employment should not be hereditary or by
succession. But where the policy provides for
compassionate appointment in the case of an
employee who dies in harness or an employee who is
medically invalidated, such a provision is based on a
classification which is not only on the ground of
descent. The classification is based on another
condition in addition to descent : that is death of the
employee in harness, or medical invalidation of the
employee while in service.
8 This Court had occasion to consider the
difference between conferment of a preferential right
to appointment to a family member of a government
servant, merely on the ground that he happens to be a
family member, and schemes relating to
compassionate appointment of dependant family
members of government servants who die while in
service or who are incapacitated while in service.
.........
15 When compassionate appointment of a
dependant of a government servant who dies in
harness is accepted to be an exception to the general
rule, there is no reason or justification to hold that an
offer of compassionate appointment to the dependant
of a government servant who is medically invalidated,
is not an exception to the general rule. In fact,
refusing compassionate appointment in the case of
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medical invalidation while granting compassionate
appointment in the case of death in harness, may
itself amount to hostile discrimination. While being
conscious that too many exceptions may dilute the
efficacy of Article 16 and make it unworkable, we are
of the considered view that the case of dependants of
medically invalidated employees stands on an equal
footing to that of dependants of employees who die in
harness for purpose of making an exception to the
rule. For the very reasons for which compassionate
appointments to a dependant of a government
servant who dies in harness are held to be valid and
permissible, compassionate appointments to a
dependant of a medically invalidated government
servant have to be held to be valid and permissible.
.........
17 The learned counsel for appellants submitted
that rational classification is not prohibited by either
Article 15 and 16 and that unless someone is
aggrieved by a classification, and challenges it on the
ground of hostile discrimination or denial of equal
opportunity, there is no occasion for a court to suo
motu consider whether a policy relating to an
affirmative action is valid or not. Reliance was placed
on observations of this Court in M. Punandara v.
Mahadesh S. [2005 (6) SCC 791] and Som Mittal v.
State of Karnataka [2008 (2) Scale 717]. In
Purandara, this Court observed that where an issue
was not before the court and none had raised the
question, adjudication on such issue is not proper;
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and that issues in question alone, and not matters at
large, could be considered. In Som Mittal, this Court
observed that while rendering judgments, courts
should only deal with the subject matter of the case
and the issues involved therein, and courts should
desist from issuing directions affecting executive or
legislative policy, or general directions unconnected
with the subject matter of the case."
25 The High Court of Karnataka in the case of R.
Jayamma vs. Karnataka Electricity Board & Anr . in Writ Petition
No. 20872 of 1991 decided on 29 th July, 1992, considered a case
of discrimination in refusing compassionate appointment only on
the ground of marriage of the petitioner. That is violative of the
constitutional guarantee, according to the learned single Judge.
We have no hesitation in agreeing with this view.
26 Then, in the case of V. Sunithakumari vs. Karnataka
State Electricity Board & Ors., Original Petition No. 12415 of
1991 decided on 30th June, 1992, as well, the learned single
Judge of the Kerala High Court held that the object of the scheme
is not to provide employment to the unemployed among the
dependents / relatives of the employee who died in harness, but
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to enable on the dependents to get some employment so as to eke
out a livelihood for the members of the family of the deceased.
The intention of the scheme can only be to provide immediate
relief to the family of the deceased employee for their sustenance.
Hence, the learned single Judge held that the classification has to
have a nexus with the object, particularly when the intention is
not to give employment to one of the heirs of the deceased, but
only to one of the dependents. This view also, therefore, is in
accord with what is held by us.
27 Finally we find that throughout the emphasis is that
there should not be discrimination having no nexus with the
object sought to be achieved. Therefore, married daughters found
a place in the scheme of compassionate appointment, other things
being satisfied [See Manjula and State of Karnataka by its
Secretary, Department of Cooperation, Bangalore & Anr., Writ
Petition No. 19058 of 2008 decided on October 11, 2004 by the
Karnataka High Court].
28 We are of the opinion that the issue and controversy
dealt with by the Hon'ble Supreme Court is not the subject matter
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before us nor have we considered it. In the least, we should not be
understood as perpetuating any problem or regime. All that we
have noticed is once the Government makes a policy of
compassionate employment we should not depart from it unless
the clear language or stipulation therein demands a correct
interpretation. If the policy itself is found to be discriminatory or
unfair, unreasonable and unjust, then, surely we can interfere in
consistent with the mandate of Articles 14 and 16 of the
Constitution of India. Further, if the understanding and
interpretation of the policy defeats its laudable object, then as
well we can interfere in our writ jurisdiction so as to ensure that
there is no discrimination on the ground of gender or marital
status. This is all that we have done in the instant case.
29 As a result of the above discussion, the writ petition
succeeds. We do not strike down the policy as prayed by the
petitioners and we would not have hesitated to do so provided a
fair and reasonable reading it does not lead to the result as
indicated above. We are of the firm opinion that the policy need
not be struck down for it is possible to give it a reasonable, fair
and just interpretation by holding that it does not exclude or rule
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out the claim of a party like the petitioner No.1, namely, the
married sister of the deceased employee provided the deceased
was unmarried or not survived by such family member who is
eligible for being considered for employment or has none except a
married sister. Therefore, a married sister in the present family
cannot be held to be excluded from the scheme of compassionate
employment as the deceased is not married or survived by other
eligible heir. Once we hold accordingly, then, we should not be
striking down an otherwise fair and reasonable policy of the
State. The rule is, therefore, made absolute in terms of prayer
clause (c), but with a modification that is ordinarily done in law
that we do not appoint somebody. We direct consideration of the
claim and if the petitioner No.1 is otherwise eligible, she should be
appointed in place of the deceased employee of the Pimpri-
Chinchwad Municipal Corporation and the requisite decision be
taken as expeditiously as possible and within a period of four
weeks from the date of receipt of a copy of this order.
30 A hyper-technical view and rather unfair reading of
the policy and refusing to implement it so as to assist such
dependents of the deceased as are brought before us has resulted
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in wastage of precious judicial time. We had to waste valuable
and precious man hours and which could have been devoted for
other matters and particularly concerning the life and liberty of
citizens. It is only because officers like respondent No.3 do not
take decisions or are not bold enough to assist parties like
petitioner No.2, that we are tempted to impose heavy costs on the
State and PCMC and to be paid by such officers. We were to direct
payment of costs and personally by the Municipal Commissioner
or the Assistant Municipal Commissioner of Pimpri-Chinchwad
Municipal Corporation, but Mr. Keluskar requested us not to take
such a harsh view. He says that he would convey the feelings of
this Court and hereafter the Municipal Commissioner would take
the necessary corrective steps and avoid any such directions. It
is only because of the pursuasion of Mr. Keluskar that we do not
impose costs.
SMT. BHARATI H. DANGRE, J. S.C. DHARMADHIKARI, J.
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