Shalini Vijay Kulkarni vs Managing Director And Another
2021 Latest Caselaw 14660 Bom

                                                                         wp1479.18
                                       (1)

              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         BENCH AT AURANGABAD

                          WRIT PETITION NO. 1479 OF 2018

 Shalini Wd/o Vijay Kulkarni,
 Age - 52 years, Occu - Service Provider,
 MCED, Aurangabad
 R/o. Plot No. 13, Saptrushivatika,
 Swapna Nagari, Garkheda, Aurangabad                      .. PETITIONER

           VERSUS

 1. Managing Director,
    MSSIDC, Chairman - Executive Committee
    of MCED, Krupanidhi Building,
    1st Floor, Ballard Estate, Mumbai 400 001

 2. The Executive Director,
    And Member Secretary,
    Maharashtra Centre for Entrepreneurship
    Development,
    A - 38, M.I.D.C. Railway Station Area,
    Aurangabad - 431 005                                  .. RESPONDENTS

                                       ....
 Mr A.P. Ghule-Patil, Advocate for petitioner;
 Mr S.S. Dande, A.G.P. for respondent no. 1;
 Mr. A.S. Patil, Advocate h/f. Mr. S.S. Chapalgaonkar, Advocate for
 respondent no. 2


                                     CORAM : RAVINDRA V. GHUGE
                                                    AND
                                             S. G. MEHARE, JJ.

DATE : 7th October, 2021

ORAL JUDGMENT (Per Ravindra V. Ghuge, J.)

1. Rule. Rule made returnable forthwith and heard finally by the

consent of the parties.

2. By this petition, the petitioner has put-forth prayer clause (B) which

reads thus:-

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"(B) By invoking jurisdiction under Article 226 of the Constitution of India, kindly direct respondents to regularize the services of petitioner as a permanent employee on Compassionate Ground."

3. The relevant factors to be considered in this case, are as under:-

a) The husband of the petitioner, namely, Vijay Rajaram Kulkarni was

working as Personal Assistant to the Director in respondent no.2

office.

 b)      On 10.11.2009, Vijay Kulkarni died.



 c)      On 27.11.2009, the petitioner widow applied for compassionate

         appointment.



 d)      On 4.6.2010, respondent no. 2 informed the petitioner that the

executive committee has decided in it's meeting dated 23.4.2010 to

induct the petitioner on contract basis and not on compassionate

ground.

e) The petitioner started working on contract basis with respondent no.

2 as a service provider.

f) Respondent no. 2 does not have any vacant post to accommodate

the petitioner as there has been no permission for recruitment since

2004.

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g) After 11 years of working on contract basis, this petition has been

filed.

4. There is no dispute that as on the date of the death of the

petitioner's husband and the induction of the petitioner on contractual

basis, there was no policy of compassionate appointment with respondent

no. 2. By a resolution no. 57.6 passed in the 57 th meeting of the governing

council of Maharashtra Center for Entrepreneurship Development (for short

"MCED") on 16.3.2013, respondent no. 2 decided to adopt the following

rules with effect from 1.4.2013:-

"1. Bombay Financial Rules, 1959.

2. Maharashtra Contingent Expenditure Rules, 1965.

3. Maharashtra Public Works Manual.

4. Maharashtra Budget Manual.

5. Delegation of Powers regarding miscellaneous expenditure.

6. Manual of Financial Powers, 1978.

7. Manual of Departmental Enquiry, 1978.

8. Purchase procedure followed by Government

9. MCS (General Conditions of Services) Rules, 1981.

10. MCS (Pay) Rules, 1981.

11. MCS (Leave) Rules, 1981.

12. MCS (Joining Time, Foreign Service and Payments during Suspension, Dismissal and Removal) Rules, 1981.

13. MCS (Discipline and Appeal) Rules, 1979.

14. MCS (Conduct) Rules, 1979.

15. MCS (Literacy of Computer Handling and Usages) Rules,1999."

It is, therefore, obvious that there was no compassionate

appointment scheme available with respondent no.2 as in November 2009.

5. An affidavit-in-reply has been filed by the Head of the Department,

MCED dated 4.9.2018 in which it is stated that the relief being sought by

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the petitioner in this petition can be considered under the labour laws by

the competent Court. MCED is registered under the Societies Act, 1860

and is a non-profit making organization. Various entrepreneurship

development training programs are effected by funds supplied by the

Government of Maharashtra. Due to paucity of funds, the MCED is unable

to manage it's institutional affairs. It is further submitted that the husband

of the petitioner was a Stenographer Grade-C and since there was no

scheme for compassionate appointment and considering that MCED is a

non-profit making organization, that a resolution was passed on

sympathetic grounds to engage the petitioner on contract basis.

6. The petitioner submits that after this petition was filed on 16.1.2018,

the petitioner's contract as a service provider has not been continued.

7. In our view, it is well settled that compassionate appointment is not

an indefeasible right. Such appointments flow only through the schemes.

As on the date of the demise of the petitioner's husband, there was no

scheme which could enable appointment on compassionate basis. So also,

compassionate appointment can be made on a post which is sanctioned

and available. The petitioner's husband was working as a Stenographer

Grade-C and the petitioner does not have the qualifications to be a

Stenographer. She was accommodated as a service provider. The nature

of duties performed and the job profile of the petitioner has not been

pleaded in the memo of the petition.

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8. In view of the above, we do not find that the extra-ordinary powers of

this Court under Article 226 of the Constitution could be exercised for

granting compassionate appointment when neither a post is available and

nor is any such scheme applicable when the petitioner became eligible. So

also, the petitioner presently is 55 years of age and her husband has

passed away 12 years ago.

9. As such, this petition being devoid of merit is, therefore, dismissed.

Rule is discharged. No order as to costs.

  (S. G. MEHARE, J.)                         (RAVINDRA V. GHUGE, J.)

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