Bombay High Court
Yogita Shivsing Nikam vs The State Of Maharashtra And ... on 11 August, 2021
Bench: Ravindra V. Ghuge, S. G. Mehare
1 904-WP.4219-18+1, oral jud.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
904 WRIT PETITION NO.4219 OF 2018
Smt. Yogita W/o Shivsing Nikam,
Age 35 years, Occu. Service,
R/o Engaon, Tal. Bodwad,
District Jalgaon. ... Petitioner
Versus
1. The State of Maharashtra,
Through its Secretary,
School Education Department,
Mantralaya, Mumbai-32.
2. The Education Offcer (Secondary),
Zilla Parishad Jalgaon at Jalgaon.
3. The Chairman,
Group Education Society, Engaon,
Tal. Bodwad, District Jalgaon.
4. The Head Master,
Gopal Devga Dhake Vidyalaya,
Engaon, Tal. Bodwad,
District Jalgaon. ... Respondents
...
Adv. for Petitioner : Mr.P.N. Nagargoje h/f Mr.D.B.Thoke.
AGP for Respondents-State : Mr. S. B. Yawalkar.
Advocate for Respondent Nos.3 & 4 : Mr. Y. B. Bolkar.
...
AND
905 WRIT PETITION NO.163 OF 2020
Sachin Shivajirao Suryawanshi,
Age 32 years, Occu. Service as Peon,
::: Uploaded on - 25/08/2021 ::: Downloaded on - 26/09/2021 10:32:16 :::
2 904-WP.4219-18+1, oral jud.odt
R/o Mukramabad, Tal. Mukhed,
District Nanded. ... Petitioner
Versus
1. The State of Maharashtra,
Through its Secretary,
Education Department,
Mantralaya, Mumbai-32.
2. The Education Offcer (Secondary),
Zilla Parishad, Nanded.
3. Anusaya Shikshan Prasarak Mandal,
Gojegaon, Tq. Mukhed, District Nanded,
Through its, Secretary.
4. Shri Chhatrapati Sambhaji Vidyalaya,
Mukramabad, Tq. Mukhed, Dist. Nanded,
Through its, Head Master. ... Respondents
...
Advocate for Petitioner : Mr. V. S. Panpatte.
AGP for Respondents-State : Mr. S. B. Yawalkar.
Advocate for Respondent Nos.3 & 4 : Mr. B. P. Gonare.
...
CORAM : RAVINDRA V. GHUGE AND
S. G. MEHARE, JJ.
DATE : 11.08.2021
ORAL JUDGMENT : (Per Ravindra V. Ghuge, J.) :-
1. Rule. Rule made returnable forthwith and heard
fnally by the consent of the parties.
3 904-WP.4219-18+1, oral jud.odt
2. By this petition, the petitioner, who is rendered a
widow at a young age, has rushed to this Court by
putting forth prayer clause 'C'.
"C. By appropriate writ order or direction the
impugned order dated 18.12.2017 passed by the
Respondent No.02 thereby refusing to accord the
approval to the petitioner for the appointment on the post
of Peon on compassionate ground may kindly be quashed
and set aside."
3. In the second petition, the petitioner, who is the
son of a deceased employee, has also approached this
Court by putting forth prayer clauses 'B, C and D'.
"B. By issue of Writ of mandamus or Order or
direction in the like nature, the impugned order dated
10.12.2019 passed by the Respondent No.2 Education
Offcer (Secondary) Zilla Parishad Nanded whereby
rejecting the approval of the Petitioner, may kindly be
quashed and set-aside."
"C. By issue of Writ of mandamus or Order or
direction in the like nature, the Respondent No.2
Education Offcer (Secondary) Zilla Parishad Nanded may
kindly be directed to grant approval to the post of peon to
the Petitioner with further directions to release his
arrears and salary forthwith."
"D. To hold and declare that, the appointment of
petitioner on the post of peon on compassionate ground
is legal and valid one."
4 904-WP.4219-18+1, oral jud.odt
4. In Writ Petition No.163 of 2020, since the
Education Offcer has passed yet another order dated
09.08.2021 refusing to accord approval to the
compassionate appointment of the petitioner, we grant
leave to the petitioner to amend the petition and add
prayer clause 'B(1)' to assail the said order. Amendment
be carried out forthwith. Consequentially, prayer clause
'B(1)' reads as under :
"B(1) By issue of Writ of Mandamus or order or direction
in the like nature, the impugned order dated 09.08.2021
passed by the Respondent No.2 - Education Offcer
(Secondary) may kindly be quash and set aside."
5. We have extensively heard the learned advocates
for the respective sides. Time and again, we have dealt
with cases in which compassionate appointment have
been made and approval is denied or the appointment
itself is refused on the grounds that, (a) There is a ban
on fresh recruitment or flling up vacant posts, (b)
Status-quo is ordered by the Government, or (c)
Compassionate appointment cannot be made since it
has to be verifed whether the post is available.
5 904-WP.4219-18+1, oral jud.odt
6. Time and again and without an exception, this
Court has ruled that appointment of a candidate on
compassionate grounds would not be affected by (a) a
ban on recruitment or (b) staffng pattern having been
undertaken by the Government. Not a single order
passed by this Court is placed before us which would
indicate that this Court has concluded that the moment
a permanent employee dies in harness, the permanent
post occupied by him will either extinguish or stand
abolished or that it can be treated as being a vacancy to
be affected by a ban on recruitment.
7. These are two peculiar cases before us and in the
above mentioned backdrop of litigation, we are
constrained to frst discuss the law laid down by this
Court before we proceed to deal with the submissions of
the State Government and its various Government
Resolutions.
8. We are referring to the following judgments of the
Hon'ble Supreme Court ;
6 904-WP.4219-18+1, oral jud.odt
(a) Umesh Kumar Nagpal Vs. State of Haryana and others,
(1994) 4 Supreme Court Cases 138,
(b) Local Administration Department and another Vs. M.
Selvanayagam Alias Kumaravelu, (2011) 13 Supreme
Court Cases 42,
(c) Canara Bank and another Vs. M. Mahesh Kumar, AIR
2015 SC 2411.
(d) Balbir Kaur and another Vs. Steel Authority of India
Ltd. and others, AIR 2000 SC 1596.
(e) Yogesh Nagraoji Ugale Vs. State of Maharashtra, 2019
STPL 9892 SC.
(f) Shattuppa L. Patil Vs. Central Bank of India, Writ
Petition No.1549 of 2006, judgment dated 23.10.2007
(High Court of Karnataka).
(g) Smt. Meena Dhaigude Vs. Maha Pravandhak, State
Bank of India, W.P.No.7249 of 2012, judgment dated
26.07.2021 (Madhya Pradesh High Court, Bench at
Indore).
9. A consistent view has been taken by the Supreme
Court in matters of death of a permanent employee and
the applicability of the policy of compassionate
appointment. The Hon'ble Supreme Court has
concluded that granting compassionate appointment is
a humane act. A family which is rendered to the
7 904-WP.4219-18+1, oral jud.odt
comforts of life, there being a bread earner in the family,
is shaken up with the death of such a bread earner.
This virtually throws the family into a fnancial crisis.
The purpose for which compassionate appointment
schemes have been introduced is laudable since it
ensures that the family which has suddenly faced a
tragedy and is in mental and fnancial distress, would
be provided with succour. A model employer would
ensure that such a family is not rendered to starvation
and it's members are not required to beg for keeping
their mind, body and soul together. At the same time,
the Hon'ble Supreme Court has held that, with passage
of a long duration of time, the family is no longer in
fnancial stringency or distress and does not require any
fnancial support, which would be a ground for declining
compassionate appointment. There are cases before
this Court as well as the Hon'ble Supreme Court,
wherein candidates seeking compassionate appointment
have approached after a passage of 10 years or 15 years
and this Court has ruled that no purpose would be
served in granting compassionate appointment in such
8 904-WP.4219-18+1, oral jud.odt
cases.
10. It appears from the material placed before us by
the learned AGP, Mr. Yawalkar that the State
Government of Maharashtra has issued several
resolutions providing for compassionate appointment.
However, we do not fnd a single Government Resolution
which would indicate a complete ban on recruitment or
that a direction to maintain status-quo as regards
recruitment would apply to compassionate appointment
or that a post available for compassionate appointment
would be subject matter of a staffng pattern or that
until such staffng pattern is declared by the
Government, compassionate appointments would be
prohibited.
11. On 03.09.1990, the State Government issued a
Government Resolution to provide compassionate
appointment to an eligible member of a family, whose
sole bread earner has suffered death, while in
employment or has been discharged from employment
on account of medical incapacitation. Voluntary
9 904-WP.4219-18+1, oral jud.odt
retirement taken by a permanent employee, who is
suffering from a grave disease or terminal illness, is also
covered by such Government Resolution.
12. In a series of such Government Resolutions, the
State also introduced the Government Resolution dated
31.12.2002, which makes a reference to 17 Government
Resolutions earlier issued. Vide the said Government
Resolution, the State resolved as under :
^^'kklu fu.kZ; %&
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'kkGkae/khy f'k{kd o f'k{kdsrj deZpk&;kaP;k ukrsokbZdkauk vuqdia k rRokoj
lsosr lkekowu ?ks.;kckcr 'kkys; f'k{k.k foHkkxkus osGksosGh fuxZfer dsysys
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[kktxh (vuqnkfur o foukvuqnkfur) 'kkGkarhy f'k{kd o f'k{kdsrj deZpkjh
lsosr vlrkauk vdkyh e`R;w ikoyk ok dks.kR;kgh nq/kZj jksxkP;k dkj.kkus
R;kyk lsokfuo`Rrh iRdjkoh ykxyh rj R;kaps yxrps ukrsokbZd iq<hy vVh
o 'krhZaP;k vf/ku jkgqu vuqdaik rRokoj fu;qDrh feG.;kl ik= vlrhy%&
1- vuqdaik rRokoj fu;qDrh ns.;kckcr jkT;krhy loZ [kktxh
izkFkfed] ek/;fed o mPp ek/;fed rFkk v/;kid fon;ky;krhy loZ
f'k{kd o f'k{kdsrj deZpk&;kauk lnjgq ;kstuk ykxw vlsy-
2- e`r ok oSn;dh; dkj.kkLro lsokfuo`Rr >kysy;k deZpk&;kaP;k
ukrsokbZdkl lsosr lkekowu ?ks.;kckcrps fu;e lksscr tksMysY;k ifjf'k"V
^^v** e/;s ns.;kr vkysys vkgsr-
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R;klkscr lknj djko;kph dkxni=s ;kph ekfgrh ifjf'k"V ^^c** e/;s ueqn
dsY;kuqlkj vlsy-
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ns.;[email protected];k ckcr fu.kZ; ?ks.;kr vkyk vlY;kl rh izdj.ks
iqufoZyksdukFkZ iqUgk fopkjkr ?ks.;kr ;sm u;sr- ek= fnukad 1 tkusokjh]
2001 uarj T;k deZpk&;kaps fu/ku >kys vkgs ok ts deZpkjh nq/kZj jksxkP;k
dkj.kkus vdkyh lsokfuo``Rr >kysys vkgsr v'kk deZpk&;kaP;k dqVwackrhy
O;fDrhauh vuqdaik rRokoj fu;qDrhlkBh vtZ dsyk vlsy o R;kaph foaurh
10 904-WP.4219-18+1, oral jud.odt
vekU; dsyh vlsy rjh vls ukrsokbZd ;k ;kstuse/;s iqUgk uO;kus vtZ
nk[ky d# 'kdrkr-
5- deZpkjh e;r ok vdkyh lsokfuo`Rr >kY;koj rhu efgU;kaP;k
vkr fdaok dqVwac fuo`Rrhosrukps dkxni= lknj djrkauk lacaf/kr
vf/kdk&;kus vko';d ekfgrh (ifjf'k"V ^^d**) ukrsokbZdkauk miyC/k d#u
n;koh o fofgr izi=krhy mesnokjkpk vtZ ia/kjk fnolkaP;k vkr lacaf/kr
f'k{k.kkf/kdk&;kadMs lknj djkok-
6- izkFkfed] ek/;fed] mPp ek/;fed o v/;kid fon;ky;kaP;k
ckcrhr loZ f'k{k.kkf/kdkjh @ f'k{k.k fujh{kdkauh lkscr tksMysY;k ifjf'k"V
^^M** e/khy ekfgrh foHkkxh; f'k{k.k milapkydkaekQZr f'k{k.k lapkydkadMs
ikBokoh-
7- 'kkGk o v/;kid fon;ky;krhy #-5]500&9]000 ;k osruJs.kh
i;ZarP;k loZ inkauk vuqdaik rRokoj fu;qDrh nsrk ;sbZy- rlsp th ins
Hkj.;kl 'kklukus eatqjh fnysyh vkgs v'kkp inkojhy fu;qDrh ns.;klkBh gs
vkns'k ykxw jkgkrhy-
gs vkns'k lkekU; iz'kklu foHkkx] foRr foHkkxkP;k lgerhus o
foRr foHkkxkP;k vukSipkfjd lanHkZ dzekad [email protected]@O;;&6] fnukad
3-7-2002 vU;os fuxZfer dj.;kr ;sr vkgsr-
egkjk"Vªkps jkT;iky ;kaP;k vkns'kkuqlkj o ukokaus]
(l-v-g- vkfonh)
mi lfpo] egkjk"V 'kklu**
13. Annexure-A to the Government Resolution dated
31.12.2002, lays down the parameters to be applied for
appointment of an eligible candidate, on compassionate
basis. We do not intend to enlarge the size of this
judgment by reproducing the contents of Annexure-A.
Suffce it to say that, there is no prohibition or bar
introduced by the State on an appointment on
compassionate ground, as is vehemently canvassed by
the learned AGP.
11 904-WP.4219-18+1, oral jud.odt
14. We fnd from the judgment delivered by the
Hon'ble Supreme Court in Yogesh Nagraoji Ugale ( supra)
that the State of Maharashtra had referred to three
Government Resolutions dated 22.08.2005, 22.03.2012
and 01.03.2014. It became obvious in Yogesh ( supra)
that the State of Maharashtra had never imposed a
complete ban on compassionate appointments. The
Government Resolution dated 22.08.2005 had only
restricted recruitment on compassionate basis to 5% in
groups "C" and "D" and by the Government Resolution
dated 01.03.2014, the compassionate appointments were
increased to the limit of 10% of the posts. It was thus
concluded in Yogesh (supra) as under :
"7. We have heard the learned Counsel for the parties,
and have perused the material on record.
7.1. In the present case, the Appellant
admittedly possesses the educational qualifcations for
the post of Peon. The Appellant has an S.S.C. Degree
along with MS. C.I.T.
contended that there is a ban since 2005 for appointment
on compassionate grounds, a relaxation was initially
granted for persons on the wait list till 31.12.2011.
Thereafter, vide Government Resolution dated
01.03.2014 bearing No.AKP-1014/Pra. Kra. 34/8 the
Government of Maharashtra decided to increase the
12 904-WP.4219-18+1, oral jud.odt
recruitment of 'Group C and D' posts on compassionate
ground from 5% to 10%.
On 02.04.2014, the Government released a
Supplementary Order to this Resolution stating that all
employment authorities shall take action every year to fll
up the posts reserved for compassionate appointment
upto 10% of vacant posts of Class C and D from 2012.
This reveals that the Government was continuing
to make appointments on compassionate grounds despite
the ban of 2005, and in fact had increased the number of
posts earmarked for compassionate appointment to 10%.
7.3. A perusal of the Order dated 31.05.2013
passed by the Education Offcer reveals that during the
hearing, Respondent No. 3 - President of the Society
stated that the Society was ready to appoint the Appellant
on compassionate grounds, if the Education Offcer
grants the permission.
The Education Offcer had in the proceedings
dated 31.05.2013 recorded that there are 2 post of Junior
Clerk vacant in the two Schools run by Respondent Nos.
3 and 4, where the Appellant could be appointed.
This fact has not been either adverted to, or
considered by the High Court, in the impugned
judgment."
"8. In the facts and circumstances of the present case,
we allow the Appeal, and set aside the Judgment passed
by the High Court on 19.11.2014 in W.P. No. 3520 of 2014.
Respondent Nos. 3 and 4 are directed to submit
the proposal for appointment of the Appellant before the
Respondent No. 2 - the Education Offcer within one
month, so that necessary orders can be passed on the
application of the appellant. Ordered accordingly.
Pending applications, if any, are accordingly
disposed of."
15. The Deputy Secretary, Rural Development
Department State of Maharashtra, issued a circular on
13 904-WP.4219-18+1, oral jud.odt
04.02.2020 referring to the Government Resolution
dated 11.09.2019 and a notifcation dated 20.09.2020
(should be read as 20.09.2019). The said circular is
addressed to all the Chief Executive Offcers of the Zilla
Parishad and Deputy Commissioners - Establishments
in the State of Maharashtra. The decision taken by the
said department reads as under :
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ftYgk ifj"knsdMhy ln;%fLFkrhrhy inHkjrh dj.;kl cjkp foyac gksr
vkgs- R;keqGs nqnZSokus R;kpk ifj.kke ftYgk ifj"knsP;k nSuafnu dkedktkoj
gksr vkgs- laiw.kZ fuoM izfdz;k iw.kZ gksbZi;Zar vk.k[kh dkgh dkyko/kh ykxw
'kdrks- ftYgk ifj"knsdMhy deZpk&;kaph fudMhph xjt y{kkr ?ksrk]
R;kauk rkrMhus euq";cG miyC/k d#u ns.ks xjtsps vkgs-
lkekU; iz'kklu foHkkxkus R;kaP;k fn-11-09-2019 P;k 'kklu
fu.kZ;kP;k vuq"kaxkus 20 VDds vuqdaik mesnokjkaph inHkjrh dj.;kckcr
fnysys vkns'k fopkjkr ?ksrk] 10 VDds mesnokjkaph inHkjrh ;kiwohZp ftYgk
ifj"kn Lrjkoj lq# vkgs- moZfjr 10 VDds mesnokjkaph inHkjrh vkrk
rkRdkG lq# dj.;kr ;koh- moZfjr 10 VDds fjDr inkaoj vuwdaik
deZpk&;kaph inHkjrh dsY;kuarj tkfgjkrhrhy 10 VDds ins deh gks.kkj
vlyh rjh 10 VDdsiSdh 5 VDds ins ljGlsok mesnokjkalkBh lsokfuo`Rrh
ok inksUurhus fjDr gks.kk&;k inkae/kwu miyC/k gks.kkj vkgsr- moZfjr 5
VDds inkaoj tkfgjkrhl vuql#u ;s.kk&;k mesnokjkauk izfr{kk ;knhoj Bsowu
tlt'kh fjDr ins gksrhy] rlr'kh R;kauk fu;qDrh ns.;kr ;koh- vuqdaik
mesnokjkauk fu;qDrh ns.;kph dk;Zokgh rkRdkG iw.kZ d#u R;kckcrpk
vgoky 45 fnolkaP;k vkr 'kklukl lknj djkok] gh fouarh-
rlsp] dks.kR;kgh izdkjs vuqdaik /kkjdkaph inHkjrh gh R;k R;k o"kkZ
ljGlsosP;k fjDr inkaP;k 20 VDds izek.kkis{kk tkLr gks.kkj ukgh] ;kph
n{krk ?;koh-
vkiyk
(fiz- 'ka- dkacGs)
mi lfpo] egkjk"V 'kklu**
14 904-WP.4219-18+1, oral jud.odt
It is thus obvious that the Government Resolution
dated 11.09.2019 provides for a ceiling of 20% on
recruitment on compassionate grounds and mandates
expeditious action.
16. The learned Division Bench of this Court, at it's
Principal Seat, delivered an order on 11.12.2018 in Writ
Petition No.7507 of 2016 fled by Smt. Samita Sameer
Desai and another Vs. The State of Maharashtra
through Secretary and another. The case involved the
death of the husband of the petitioner, who was working
as a Peon in the petitioner No.2 - School. He passed
away on 02.11.2011 and petitioner No.1, his widow, came
to be appointed on compassionate ground. The widow
had a minor son aged 6 years and a minor daughter
aged 4 years. They were solely dependent upon the
source of income of the deceased. She moved an
application on 06.02.2012 for appointment on
compassionate ground with reference to the policy
enunciated by the Government of Maharashtra vide the
15 904-WP.4219-18+1, oral jud.odt
Government Resolution dated 31.12.2002 (relevant
portion reproduced herein above).
17. The facts in Smt. Samita Sameer Desai (supra)
indicate that the application of the widow was
considered by the School Committee and it was resolved
to appoint her on compassionate basis in place of her
deceased husband. An appointment order dated
29.05.2012 was issued in her favour. This Court has
observed in paragraph No.8 of the order that the
reasonable expectation was that the widow would be
appointed in place of her husband as a peon, keeping in
view that the post occupied by the deceased was
approved by the State Authorities. This was, however,
opposed by the State authorities and the approval was
not granted. An earlier Writ Petition No.3505 of 2015
fled by the widow was disposed off with a direction to
the Education Department to decide the proposal for
grant of approval. Unfortunately, the State relied on the
Government Resolution dated 02.05.2012, which
imposed a ban on making appointments in secondary
16 904-WP.4219-18+1, oral jud.odt
schools and opposed the approval to be granted to the
widow. The second reason put forth by the Government
was that though the appointment of the peon was as
per the staffng pattern, the post in question was not
included in the staffng pattern. On these two grounds,
the approval was refused.
18. In view of the above, this Court concluded in
paragraph No.9 as under :
"9 It is common ground that the appointment is
sought by petitioner No.1 on compassionate ground. The
very object and purpose of such employment and
conferring a power to make appointment on
compassionate ground is that the employer assists the
family to tide over the fnancial crisis caused by the loss
of bread winner. It is an assistance to the family and
which is in distress. In the circumstances, this is not a
fresh appointment or an appointment which ordinarily
requires the approval. All that would suffce is an
intimation from petitioner No.2 that the husband of
petitioner No.1 was already appointed as a Peon and that
post was permanent and duly sanctioned. Having
appointed him, it was revealed that he died suddenly on
2nd November, 2011. In his place, in terms of Government
policy, compassionate appointment was sought and it is
that appointment which has been made. There is no post
created nor is there any question of an appointment
being made through recruitment process which was
covered by the ban. The ban, thus, could not have
covered this appointment."
17 904-WP.4219-18+1, oral jud.odt
19. The learned advocate appearing on behalf of the
respondents in Samita Sameer Desai ( supra) relied upon
an affdavit-in-reply and contended that as there was a
ban, the approval was rightly refused. This Court
concluded that it was unable to accept the contentions
of the respondents for the reason that the appointment
of the widow cannot be said to be an illegal appointment
and no prior approval of the Education Department was
necessary. It was then held that the appointment on
compassionate basis is made in terms of the
Government Resolution dated 31.12.2002. This has not
been superseded by any subsequent Government
Resolution, as on 11.12.2018 when this court delivered
the order. The very object of compassionate appointment
is to ensure that a source of income is made available to
the family. Ultimately, this court quashed and set aside
the order of refusal of approval and declared that her
appointment on compassionate grounds with effect from
the date of her appointment was duly approved and she
was held entitled to all benefts, salary, emoluments etc.
attached to the said post.
18 904-WP.4219-18+1, oral jud.odt
20. In yet another judgment dated 10.03.2021
delivered by this Court at the Aurangabad Bench in Writ
Petition No.15018 of 2019 fled by Bharati Bhausaheb
Thakare Vs. The State of Maharashtra and others, this
Court had noted that the husband of the petitioner
widow was in permanent employment and he died while
in service. The widow was appointed on compassionate
ground. However, the proposal for approval of her
appointment was turned down. The judgment delivered
by this Court in Smt. Samita Sameer Desai ( supra) was
cited and this Court agreed with the view taken by the
learned Bench and quashed and set aside the order of
the Education Offcer refusing to grant approval.
21. We have perused the Writ Petition paper book of
this case (Bharati Bhausaheb Thakare) to appraise
ourselves as regards the reasons assigned by the
Education Offcer for refusing approval to the
compassionate appointment of Smt. Bharati ( supra).
Having perused the impugned order dated 13.09.2019,
Annexure-G to the said petition, we fnd that the refusal
19 904-WP.4219-18+1, oral jud.odt
is based on two grounds. Firstly, that there was a ban
on recruitment and secondly, as the staffng pattern was
not yet formalized, the approval could not have been
granted. By judgment dated 10.03.2021, this Court
allowed the Writ Petition fled by Smt. Bharati
Bhausaheb Thakare and granted her all the service
benefts attached to her post from the date of her joining
duties.
22. Having discussed the legal position, rather the
crystallized position of law with regard to compassionate
appointment, compassionate appointment is an
exception to the rule of recruitment.
23. In the two cases before us, the impugned orders
lead to the denial of approval for the compassionate
appointment of the petitioners by placing reliance upon
an inapplicable Government Resolution dated
12.02.2015 which introduced a ban on recruitment of
teaching and non teaching posts. So also, the other
reason for denial of approval is that the staffng pattern
for the non teaching posts is yet to be sanctioned for the
20 904-WP.4219-18+1, oral jud.odt
academic year 2014-2015 and hence, the approval
cannot be granted.
24. In the second petition, the reason for refusal of
approval is based on yet another Government Resolution
of Government dated 23.10.2013 by which a committee
was formed by the State Government for preparing the
staffng pattern for several categories of employees and
the said committee had directed status-quo to be
maintained with regard to recruitment and flling up of
vacant posts. The other reason for refusing approval
was that the State Government has introduced a
Government Resolution dated 28.01.2019 by which
staffng pattern for the non teaching posts falling in the
Class-III category had been formalized, but, such a
staffng pattern for the Class-IV category was still
pending. In this petition fled by Sachin, in the second
impugned order dated 09.08.2021 refusing approval, the
Education Offcer concludes that the Maharashtra
Government has decided to abolish Class-IV non
teaching employees' posts immediately after the
21 904-WP.4219-18+1, oral jud.odt
employee retired. The Education Offcer, therefore,
advised that if the case of Sachin Suryawanshi is
forwarded along with other candidates, who have been
appointed by following the regular recruitment process,
the Education Offcer would consider his case for
approval.
25. We fnd this reason to be astonishing. An employee
who is already appointed on compassionate grounds is
unjustifably refused approval and the Management is
advised to send a proposal indicating that the said
employee has been subsequently selected on a
permanent vacant post so as to consider his case for
approval.
26. Despite the legal position discussed in the
foregoing paragraphs, Mr. Yawalkar, the learned AGP, on
instructions from the State, has canvassed as under :
(a) If there is a ban on recruitment, as per
Government Resolution dated
12.02.2015, it would apply also to
compassionate appointment.
22 904-WP.4219-18+1, oral jud.odt
(b) If there is a status-quo on recruitment
ordered by the State Government, such
status-quo would apply even to
compassionate appointments.
(c) If the staffng pattern is not yet
formalized, a compassionate
appointment cannot be approved
because the death of a permanent
employee leads to the creation of a
vacancy and it is only on the basis of
the staffng pattern that a decision will
have to be taken that such a vacant
post will amount to a sanctioned
permanent post.
27. Considering the settled position of law, we called
upon Mr. Yawalkar to respond as to whether his above
recorded submissions would stand the test of law laid
down in the judgments delivered in Yogesh ( supra),
Samita Sameer Desai (supra) and Bharati Bhausaheb
Thakare (supra). He submits that since the death of an
employee occupying a permanent post would amount to
creation of a vacancy, the ban on recruitment, the
status-quo with regard to recruitment and the
23 904-WP.4219-18+1, oral jud.odt
appointment pending formalization of the staffng
pattern, would be suitable grounds for refusing approval
to the appointment on compassionate grounds.
28. To say the least, we are shocked by the stand
taken by the State Government, which is not only
against logic and reason, but is in complete
contradiction to the law crystallized by this Court in
numerous judgments. It is unconscionable for the State
to canvass such grounds virtually rendering the
bereaved family to starvation. We fnd that the State
has consistently ensured that not a single Government
Resolution, pertaining to ban on recruitment, stay on
flling in vacant posts and prohibition on appointments
until the staffng pattern of the non teaching posts is
formalized, would apply to appointments made on
compassionate grounds. This Court has also
consistently taken a view that compassionate
appointment would be an exception to the mandatory
rule of following specifc selection procedure for
recruitment on vacant posts or on newly created posts.
24 904-WP.4219-18+1, oral jud.odt
29. We have noticed the agony caused to litigants in
such cases. We, therefore, fnd it appropriate at this
stage to record that after the delivery of this judgment, if
any case refusing approval to a compassionate
appointment which is otherwise legally sustainable
satisfying the eligibility criteria, comes to this Court, we
would be issuing directions recommending strict
disciplinary action against the Education Offcer and we
would not hesitate to initiate contempt of Court
proceedings against persons responsible, since they are
interpreting the Government Resolutions in the most
inappropriate manner, despite the crystalised position of
law. Because of such acts of the Education Offcers,
widows and eligible candidates are compelled to rush to
this Court after having suffered mental and physical
agony of a personal loss of a sole bread earner and also
spend on litigation which is costly these days. We would
also impose heavy costs to be recovered from the
salaries of such Education Offcers for the pain caused
to such petitioners. We fnd it appropriate to record
25 904-WP.4219-18+1, oral jud.odt
that if the Education Offcer notices that a particular
Management is attempting to defeat the rights of an
eligible candidate for compassionate appointment, the
Education offcer would be at liberty to initiate
appropriate action against such Management.
30. In view of the above, these petitions are allowed.
The impugned orders stand quashed and set aside.
Approvals stand granted to these petitioners from the
dates of their joining duties on compassionate basis,
with all monetary benefts accruing to their posts.
Formal approval orders shall be issued by the concerned
Education Offcers, before 30.09.2021.
31. The Education Offcer (Secondary), Zilla Parishad,
Jalgaon and the Education Offcer (Secondary), Zilla
Parishad, Nanded shall deposit an amount of
Rs.25,000/- (Rupees Twenty Five Thousand only) each,
as costs, from their salary bank account in this Court,
on or before 30.09.2021 and these two petitioners
namely Smt. Yogita and Mr. Sachin, shall be entitled to
withdraw the said amount subject to proper
26 904-WP.4219-18+1, oral jud.odt
identifcation, without conditions. In the event, any of
these two Education Offcers has retired, the said
amount shall be recovered from his pension.
Compliance of this order shall be reported to this Court
upto 15.10.2021, by the respective Chief Executive
Offcer, Zilla Parishad.
32. We direct the learned Registrar (Judicial) of this
Court to place this order before the Secretary, School
Education Department, Mantralaya to be circulated to
all concerned. The concerned Secretary shall pass
appropriate instructions to all concerned offcers in the
State of Maharashtra.
33. We need to clarify that, in cases relating to a
candidate not being eligible to occupy the post of the
deceased father/parent and, therefore, has to be
accommodated on some other inferior post in another
class, the authority empowered to make compassionate
appointment, shall verify whether such post is available
or not and shall list the candidate in the wait list of
eligible candidates.
27 904-WP.4219-18+1, oral jud.odt
34. Rule is made absolute in the above terms.
(S. G. MEHARE, J.) (RAVINDRA V. GHUGE, J.)
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