Bombay High Court
Smt. Manisha Dnyneshwar Londhe vs The State Of Maharashtra And Ors on 19 January, 2022
Bench: R.D. Dhanuka, R. N. Laddha
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 2619 OF 2021
Smt. Manisha Dnyneshwar Londhe ... Petitioner.
At & Post- Pargaon (Shingave),
Tal. Ambegaon, Dist. Pune.
V/s.
1. The State of Maharashtra,
Ministry of School Education and Sports,
(through the Secretary of this Dept.)
Mantralaya, Mumbai -400 032.
2. Deputy Director of Education
Secondary & Higher Secondary Education,
Pune Region, Pune -1.
3. The Education Officer,
Zilla Parishad Pune, Pune - 411 001.
4. Shri Parmarthik Seva Sangh Mumbai
(through the President/ Secretary)
Gaurai Shankar Apartment, Shop No. 7
At & Post - Narayangaon (Junnar Road)
Tal. Ambegaon, Dist. Pune. PIN 410 504.
5. Shri Sangameshwar Secondary & Baburao ... Respondents.
Genuji Dhoble Higher Secondary School.
(through the Head Master),
At & Post - Pargaon (Shingavi),
Tal- Ambegaon, Dist. Pune-412 406.
---
Mr. Mahadeo Baburao Ghule, Advocate for the Petitioner.
Ms. P. J. Gavhane, Assist. Government Pleader for the State -
Respondent Nos. 1 to 3.
SHALIKRAM
Digitally signed by
SHALIKRAM
Ms. Ranjana Todankar, Advocate for the Respondent Nos. 4 & 5.
PRALHADRAO
---
PRALHADRAO BOREY
Date: 2022.01.19
BOREY 13:12:20 +0530
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CORAM : R.D. DHANUKA & R. N. LADDHA, JJ.
DATE : JANUARY 19, 2022.
(Reserved on : 22.12.2021)
(Pronounced on : 19.01.2022)
JUDGMENT : (Per R. N. Laddha, J.)
Rule. Rule made returnable forthwith. This Writ Petition is
taken up for hearing and final disposal, by consent and on the request on
the learned Counsel for the parties.
2. The husband of the Petitioner namely Dnyneshwar
Sakharam Londhe, was a "Peon", working with the Respondent No. 5-
School and passed away, while he was in service, on 22 September,
2015, leaving behind father, 4 children and his widow-the Petitioner.
The Petitioner applied for compassionate appointment on 1 December,
2015 and 8 December, 2015. These applications were considered by the
Respondent - Management in its meeting held on 2 October, 2016 and it
was resolved to appoint the Petitioner on compassionate basis. She,
accordingly was appointed as a "Peon" on compassionate ground, vide
order dated 10 June, 2016. Thereafter, she joined her duties as a "Peon"
in the Respondent-School on 15 June, 2016. In turn, the proposal of
the Petitioner was forwarded to the Respondent -Education Officer, Zilla
Parishad, Pune, on 29 January, 2018. As there was no response from
the Respondent - Education Officer, the proposal was re-submitted
again on 27 June, 2019. It is stated that since approval had not been
coming forth, quite a few representations were made to the Respondent
-Education Officer.
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3. The Respondent-Education Officer, during the pendency of
this petition, on 17 August, 2021 placed on record a letter dated 13
March, 2018. The Education Officer by this letter had already refused
to accord approval to the compassionate appointment of the Petitioner,
stating therein that as per Government Resolution dated 22 March, 2012
a relaxation was granted to the persons, on the wait list of the
candidates on the compassionate ground for appointments, till 31
December, 2011 and as the Petitioner is appointed on 15 June, 2016, the
approval to the appointment of the Petitioner on compassionate basis
could not be granted.
4. The learned Counsel for the Petitioner submits that the
husband of the Petitioner was working as a "Peon" in Respondent -
School since 1990-1991 till he breathed his last on 22 September, 2015.
The Petitioner's husband was the sole bread earner of the family.
According to him, the very object and purpose of such employment and
conferring the power to make appointment on compassionate ground is
that the employer assists the family to tide over a financial crisis
caused by the loss of the sole bread earner. It is the assistance to the
family just in distress. In the circumstances, this is not a fresh
appointment or an appointment which ordinarily requires approval. He
further submits that the Petitioner belongs to the reserved category and
she has also passed SSC examination. She has submitted her
application within a stipulated period, as prescribed under the relevant
Government Resolution and that the post of Peon was also vacant at the
relevant time in the Respondent- School. He submits that this Court has
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consistently taken a view that compassionate appointment would be an
exception to the mandatory rule of following specific selection
procedure for recruitment on vacant posts and / or on newly created
posts. In support of his submission, he placed reliance on the
Judgment of the Division Bench of this Court in the case of Smt.
Yogita w/o. Shivsing Nikam Vs. The State of Maharashtra and
Others, Writ Petition No. 4219 of 2018, dated 11 August, 2021.
5. On the other hand, the learned Assistant Government
Pleader appearing for the Respondent Nos. 1 to 3 and relying upon the
Affidavit-in-Reply filed on behalf of the Respondent No. 3, submits that
the Respondent No. 1 is running the school on grant-in-aid basis. The
Government of Maharashtra vide Government Resolution dated 12
February, 2015 has granted stay to the new recruitment and has directed
not to fill-up vacant posts in non -teaching staff. It has been submitted
that the Respondent-Management has appointed the Petitioner on
compassionate ground without observing the policy of the Government
to the staffing pattern of non - teaching posts in aided private school
and has made appointment of the Petitioner in violation of the
Government Resolution dated 12 February, 2015. It is submitted that
the Government of Maharashtra has introduced a new staffing pattern for
non-teaching staff of Class IV on 11 December, 2020, by which the post
of Class IV in the recognized school of private, partly / fully aided,
secondary and higher secondary schools within the State have been
abolished and the State Government has taken a policy decision that
instead of a new recruitment of regular Class IV posts, the Government
has sanctioned consolidated amount as "Shipai Bhatta" to the aided /
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partly aided secondary and higher secondary schools. It has been
submitted that the Government Resolution dated 31 December, 2011 and
Government Resolution dated 22 March, 2012, imposed a ban on
making appointments and, therefore, the Respondent- Education Officer
has rightly refused to accord approval to the Petitioner's appointment
on compassionate ground.
6. We have heard learned Counsel for the Respondent Nos. 4
and 5 and considered the contentions canvassed by the learned counsel
for the parties. Perused the impugned order of the Respondent
Education Officer. We have also gone through the relevant
Government Resolutions.
7. It is not in dispute that the Petitioner's husband had been in
permanent service with Respondent- School. He died on 22 September,
2015 while in service. Petitioner had applied for appointment on
compassionate ground on 01 December, 2015 and 8 December, 2015
after following the procedure required. The Petitioner was appointed as
a "Peon" vide order dated 10 June, 2016 and proposal for approval to the
said appointment had been submitted on 29 January, 2018. The
principal ground for not approving the appointment of the Petitioner is
on the basis of the Government Resolution dated 2 May, 2012 and
Government Resolution dated 12 February, 2015 by which such
appointments were banned.
8. In this context, the legal position is well neigh settled and
does not need the support of precedent, yet to retain emphasis, a
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profitable reference can be made to the Judgment of the Division Bench
of this Court in the case of Smt. Samita Sameer Desai & Anr. Vs.
State of Maharashtra through Secretary and Another, Writ Petition
No. 7507 of 2016, dated 11 December, 2018, wherein, it was
enunciated that the appointment on compassionate basis is made in
terms of a Government Resolution dated 31 December, 2002. That has
not been superseded by any of the subsequent Government Resolution
and particularly, the one imposing ban dated 2 May, 2012. In fact, such
appointments were kept out of the purview of the general ban imposed
on recruitment. The very object in any of such appointments enables the
State Government to carry forward its earlier policy despite the overall
ban on the recruitment and appointment.
9. Similarly, a Division Bench of this Court in the case of
Bharati Bhausaheb Thakare Vs. State of Maharashtra & Others,
Writ Petition No. 15018 of 2019, dated 10 March, 2021, wherein, after
taking survey of the pronouncement in the case of Smt. Samita Sameer
Desai (supra), agreed with the view taken by the learned Bench and
quashed and set aside the order of the Education Officer refusing to
grant approval.
10. It will be appropriate, in the circumstances, to quote the
paragraphs 6 and 7 from the Judgment of the Hon'ble Supreme Court in
the case of Yogesh Nagraoji Ugale Vs. State of Maharashtra, through
Principal Secretary, 2019 (11) SCALE, 448.
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"6. We have heard the learned Counsel for the parties,
and have perused the material on record.
6.1. In the present case, the Appellant admittedly
possesses the educational qualifications for the post of
Peon. The Appellant has an S.S.C. Degree along with
MS. C.I.T.
6.2. Even though Respondent Nos. 3 and 4 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
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
fill up the posts reserved for compassionate appointment
upto 10% of vacant posts of Class C & 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%.
6.3. A perusal of the Order dated 31.05.2013 passed by
the Education Officer 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 Officer grants
the permission.
The Education Officer had in the proceedings
dated 31.05.2013 recorded that there are 2 post of Junior
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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.
7. 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 Officer 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."
11. The above conclusion is helpful in understanding the
alleged ban on compassionate appointment. Further, the Government
Resolution dated 11 September, 2019 provides for a ceiling of 20% on
recruitment on compassionate grounds and mandates expeditious action.
12. As is manifest from the above, it can safely be concluded
that the State of Maharashtra had never imposed a complete ban on
compassionate appointment.
13. There is no dispute that the appointment of the Petitioner on
compassionate basis is made in terms of the Government Resolution
dated 31 December, 2002 and the said Government Resolution has not
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been superseded by any subsequent Government Resolution. From the
aforesaid pronouncements, it is clear that the compassionate appointment
is an exception to the rule of recruitment. There is nothing on record
even to suggest that the State has ever imposed the complete ban on
compassionate appointments. On the other hand, this Court has
consistently taken a view that the appointment of the candidate on a
compassionate ground would not be affected by a ban on recruitment
and such appointments are not a fresh appointments. The husband of the
Petitioner was already appointed as a "Peon" on permanent and
sanctioned post. Hence, no post is required to be created nor is there any
question of appointment being made through recruitment process
which was covered by the ban. It is also not in dispute that the
Petitioner belongs to reserved category and she also possesses the
educational qualification required for the post of Peon. Further, she has
submitted her application within stipulated period, as prescribed under
the relevant Government Resolution and that the post on which her
appointment was made was also vacant.
14. In view of the above, we allow the Writ Petition by
quashing and setting aside the impugned order. The proposal submitted
for approval to the Petitioners' appointment be decided in right earnest
keeping in view the observations made above and appropriate orders
accordingly be passed, including that of giving benefits of salary,
emoluments etc., attached to that post. Arrears of salary and other
benefits be released to the Petitioner as early as possible. The aforesaid
process would be completed within a period of eight weeks from the
date of communication of this order.
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15. Rule is accordingly made absolute in above terms. There
shall be no order as to costs.
(R. N. LADDHA, J.) (R. D. DHANUKA, J.)
.....
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