Bombay High Court
Nirasha D/O Madhavrao Kahalkar vs State Of Maha., Thr. Secretary, ... on 11 August, 2023
Bench: Avinash G. Gharote
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.2643/2023
PETITIONER Sau. Nirasha d/o Madhavrao Kahalkar
aged about 35 years, Occupation - Senior
Assistant Clerk, Panchayat Samiti, Lakhandur
Tahsil-Lakhandur, District - Bhandara,
presently residing as dependent with married
sister Sau. Malti Chaitanyeshwar Selokar, R/o
Kardha, Tahsil and District - Bhandara.
...Versus...
RESPONDENTS 1. State of Maharashtra, through its Secretary,
Samaanya Prashasan Vibhag, Desk - 8
Mantralaya, Mantralaya Building,
Mumbai - 32.
2. Chief Executive Officer, Zilla Parishad
Bhandara, At Post Tahsil and District -
Bhandara.
3. Block Development Officer, Panchayat
Samiti Lakhandur, At Post Tahsil -
Lakhandur, District - Bhandara.
4. Collector Bhandara, At Post Tahsil and
District - Bhandara.
5. The Commissioner Nagpur Division, Nagpur.
Mr. R.G. Kavimandan, Advocate for petitioner
Mr. N.R. Patil, AGP for respondent nos.1 and 4/State
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2
CORAM : AVINASH G. GHAROTE, J.
Date of reserving the judgment : 28/07/2023
Date of pronouncing the judgment : 11/08/2023
1. Heard Mr. R.G. Kavimandan, learned counsel for the
petitioner and Mr. N.R. Patil, learned Assistant Government Pleader
for the respondent nos.1 to 4/State. Rule. Rule made returnable
forthwith. Assistant Government Pleader Mr. N.R. Patil waives
service of notice for the respondent nos.1 to 4/ State on merit.
Heard finally with the consent of the learned counsels for the rival
parties.
2. The petition questions the order dated 17/11/2021 by
which the services of the petitioner as a Senior Assistant Clerk in the
office of Panchayat Samiti, Lakhandur stood terminated and the
subsequent order dated 28/11/2022 passed by the Commissioner in
an appeal filed by the petitioner, dismissing the appeal.
3. The facts giving rise to the present petition are as
under :
3.1. The mother of the petitioner died on 02/07/2009 while
she was in service as a peon in Zilla Parishad Gandhi Vidyalaya,
Lakhani.
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3.2. The petitioner has siblings in the form of a brother and
three sisters who are married and settled.
3.3. The petitioner had applied for being provided
employment on compassionate basis through the Headmaster Gandhi
Vidyalaya Lakhani on 10/12/2009 and was wait-listed at serial
no.26.
3.4. On 10/08/2021 the petitioner was appointed as a
Senior Assistant Clerk in the office of Panchayat Samiti, Lakhandur.
The petitioner joined her services on 17/08/2021.
3.5. On 11/10/2021 the petitioner was served with a show-
cause notice calling upon her to show cause as to why her services
should not be terminated for concealing the fact that her brother was
in Government employment, when she had applied for
compassionate appointment, in 2009 itself.
3.6. The petitioner filed a reply on 21/10/2021 (pg. 56) in
which it was contended that though her brother Shrikrushna
Madhavrao Kahalkar was in employment as a Shikshan Sevak by the
Zilla Parishad Gondia since the time of demise of their mother, which
later on ripened to Assistant Teacher and was now working as an
Assistant Teacher with Panchayat Samiti Arjuni Morgaon, District
Gondia, however, he was residing separately and not supporting her
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financially, on account of which, the information was not supplied at
the time of either making of the application or the
appointment (pg.56).
3.7. On 17/11/2021 the respondent no.2 having found the
explanation given in the reply dated 21/10/2021 submitted by the
petitioner to be unsatisfactory terminated the services of the
petitioner.
3.8. This termination came to be challenged by the
petitioner before this Court by filing Writ Petition No.1041/2022 on
03/01/2022, which came to be disposed of on 25/02/2022 on
account of the remedy of appeal.
3.9. The petitioner thereafter filed an appeal on 07/02/2022
under the Maharashtra Zilla Parishads District Services (Discipline
and Appeal) Rules, 1964 before the Commissioner, Nagpur which
came to be dismissed on 28/11/2022 by the impugned order.
4. It is contended by Mr. Kavimandan, learned counsel for
the petitioner that merely because the employment of the brother of
the petitioner at the time of the demise of her mother was not
disclosed, that would not dis-entitle the petitioner from claiming
appointment on a compassionate basis, considering that she was not
being supported by her brother. He invites my attention to the
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Government Resolution dated 21/09/2017 to contend that the
requirements therein for being wait-listed for the compassionate
appointment having been complied with by the petitioner she could
not have been terminated. He also relies upon the Government
Resolution dated 26/10/1994 to contend that before termination an
enquiry ought to have been done regarding the circumstances
prevailing at the time of the filing of the application for
compassionate appointment in view of the circumstances pleaded
that the brother of the petitioner, was not supporting her, as
according to him, this was the duty cast upon the appointed
authority.
5. Mr. N.R. Patil, learned Assistant Government Pleader for
the respondent nos.1 to 4/State supports the impugned order and
submits that the very purpose of disclosure to be made at the time of
application for compassionate appointment was for an enquiry to be
conducted as to the plea of no-support, which upon being found to
be correct, would only entitle the petitioner to be wait-listed. The
petitioner by suppressing this throughout, had circumvented the
enquiry with a view to obtain employment and such conduct
therefore cannot be countenanced.
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6. It is not in dispute, that on 10/12/2009, when the
petitioner made an application for being appointed on
compassionate basis (pg.56), she had disclosed that she had four
siblings (1) Smt. Kalawati Arvind Bhotmange (2) Smt. Malti
Chaitanyashwar Selokar (3) Smt. Manisha Ganesh Bante all of whom
were married and a brother (4) Shrikrushna Madhaorao Kahalkar,
who at that time was said to be earning Rs.3,000/-. A perusal of the
application dated 10/12/2009 indicates that it was not disclosed by
the petitioner that her brother Shrikrushna Madhaorao Kahalkar was
employed as a Shikshan Sevak even before the demise of her mother.
The said employment, of the brother of the petitioner, also stood
regularized. A consent in the form of an affidavit was also submitted
by all the legal heirs of late Smt. Indira Madhao Kahalkar, including
the petitioner on 15/12/2018 indicating that they were the only
legal heirs and the affidavit was being sworn for the purpose of the
petitioner securing employment on compassionate basis, the other
legal heirs having accorded their consent to the same. What is
material to note is that the brother of the petitioner namely
Shrikrushna Madhaorao Kahalkar was also signatory to this affidavit,
which did not disclose that he was serving as an Assistant Teacher .
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Even the petitioner on 17/08/2021 had sworn an affidavit in support
of her claim for compassionate appointment wherein a specific
averment was made that the information supplied for the purpose of
appointment, in case found to be incorrect or false, she would be
liable to be terminated. In this affidavit also no information was
furnished/disclosed that the brother of the petitioner as named
above was serving as an Assistant Teacher. Thus, throughout from
2009 till the time the petitioner was appointed as a Senior Assistant
Clerk on 10/08/2021 and even thereafter till 11/10/2021 when the
petitioner was served a show cause, the fact, that her brother was
serving as an Assistant Teacher was never disclosed.
7. The duty to disclose this information, is clearly spelt out
from the Government Resolution dated 26/10/1994 in the following
words :
",[kkn;k dqVqackr e`r deZpk&;kP;k ukrsokbZd iwohZp lsosr vlsy] rFkkfi
rks R;kP;k dqVqackrhy vU; lnL;kauk vk/kkj nsr ulsy rj v'kk izdj.kkr
R;k dqVqackph vkfFkZd ifjfLFkrh gykdhph vkgs fdaok dls gs Bjforkauk
fu;qDrh vf/kdk&;kus vR;kf/kd n{krk ?;koh] ts.ksd:u lsosr vlysyk
lnL; dqVqackpk mnjfuokZg dfjr ukgh ;k ukok[kkyh vuqdaik rRokojhy
fu;qDrhpk nq:i;ksx dsyk tk.kkj ukgh]
;k lanHkkZr fu;qDrh vf/kdk&;kus feG.kk&;k fuo`fRrosrukph jDde]
dqVqackrhy O;Drhaph la[;k] R;kph ekyeRrk nkf;Ro] xaHkhj vktkjkeqGs
fdaok vi?kkrkeqGs e`r >kyk vlY;kl R;klkBh dj.;kr vkysyk oSn;dh;
[kpZ] dqVaqckrhy feGoR;k O;Drh bR;knh ckch fopkjkr ?ks.ks visf{kr vkgs-
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Š- mijksDr † ¼d½ O;frfjDr dks.kR;kgh vVh f'kfFky dj.;kph
'kDrh 'kklukdMs jkg.kkj ukgh-"
which is reiterated in the Government Resolution dated 21/09/2017.
"¼b½ fnoaxr 'kklfd; deZpk&;kpk ukrsokbZd iwohZp lsosr vlsy rFkkfi
rks R;kP;k dqVqackrhy vU; lnL;kauk vk/kkj nsr ulsy rj v'kk izdj.kkr
R;k dqVqackph vkfFkZd ifjfLFkrh gykdhph vkgs fdaok dls gs Bjforkauk
fu;qDrh izkf/kdk&;kauh vR;kf/kd n{krk ?;koh] ts.ksd:u lsosr vlysyk
lnL; dqVqackpk mnjfuokZg djhr ukgh ;k ukaok[kkyh vuqdaik rRokojhy
fu;qDrhpk nq:i;ksx dsyk tk.kkj ukgh-
;k lanHkkZr fu;qDrh izkf/kdk&;kus feG.kk&;k fuo`Rrhosrukph jDde]
dqVqackrhy O;Drhaph la[;k] R;kph ekyeRrk@nkf;Ro] xaHkhj vktkjkeqGs
vFkok vi?kkrkeqGs e`r >kyk vlY;kl R;klkBh dj.;kr vkysyk oSn;dh;
[kpZ] dqVaqckrhy feGoR;k O;Drh bR;knh ckch fopkjkr ?ks.ks visf{kr vkgs-
¼'kklu fu.kZ;] fn-„ˆ-ƒ0-ƒ‹‹†½"
8. The very purpose of disclosing this information, is to
enable the authorities to make an enquiry, as to whether the member
of the family who was in employment was looking after/supporting
the other members financially. For forming this opinion it is therefore
necessary for the person making an application for appointment on
compassionate basis, first to disclose this information. In case such
information is disclosed, it is only after the authority, to its
satisfaction, forms an opinion that the sibling who was in
Government employment was not taking care of and financially
assisting the other siblings, that the plea for compassionate
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appointment could be entertained. This could also be termed as the
'honesty test', as the disclosure at the time of making the application
for compassionate appointment itself, which is required to be done in
terms of the Government Resolutions dated 26/10/1994 and
21/09/2017, would indicate to the unattended
employer/department, that the applicant was worthy of credence
and reliable too.
9. The factual matrix in the instant matter would indicate
that in spite of the fact that the petitioner was well aware of the
employment of her brother as an Assistant Teacher even before the
demise of her mother and so also of the obligation to make such
disclosure, neither the application filed in the year 2009 for being
appointed on a compassionate basis, nor the subsequent certificate of
family members dated 16/08/2010 (pg.30) or for that matter the
consent dated 15/12/2018 nor the affidavit sworn by the petitioner
on 17/08/2021 disclosed anything about her brother being
employed as an Assistant Teacher. It is only after her appointment
when enquiries were made, it was found that the brother of the
petitioner was serving as an Assistant Teacher with the Panchayat
Samiti, Arjuni Morgaon, District Gondia and the employment went
back even prior to the demise of the mother, in 2009.
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10. This clearly indicates an intentional and motivated
suppression of this factual position, with an intention to secure
employment on compassionate basis. It is also material to note that
this is in the teeth of the statement as contained on oath, of the
petitioner in the affidavit dated 17/08/2021 where she has stated
that in case the information on the basis of which compassionate
appointment was being granted, is found to be false, she would
stand to lose the appointment.
11. This conduct on part of the petitioner has been duly
taken note of by the learned Commissioner in the impugned order
dated 28/11/2022 which further observes that it was in consonance
with term no.4 of the appointment where the petitioner has stated
that in case the information on the basis of which appointment was
being granted was found to be false, she would be liable to be
terminated (pg.130).
12. Though reliance is placed upon Pritam s/o Late Narad
Wasnik Vs. The Chief Executive Officer, Zilla Parishad, Bhandara and
another (Writ Petition No.5473/2021, decided on 20/4/2023) to
contend that Clause - 5 (e) of the Government Resolution dated
21/09/2017 required an examination of the financial position of the
family and specifically in regard to support being rendered to the
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family by a member of the family who was already in service, it is
material to note that Pritam Narad Wasnik (supra) does not consider
the position of an intentional suppression of a material fact at the
time of making the application for employment on compassionate
basis and its effect on the appointment subsequently, specifically so,
in light of the terms of the appointment on the basis of an
undertaking by the employee that in case the information provided
for appointment on compassionate basis if found false, the
employment would be terminated.
13. The purpose of compassionate appointment has been
spelt out by the Hon'ble Apex Court in State of West Bengal Vs.
Debabrata Tiwari and others 2023 SCC OnLine SC 219 and it has
been held in para 32 as under :
"32. On consideration of the aforesaid decisions of this Court,
the following principles emerge.
i. That a provision for compassionate appointment makes a
departure from the general provisions providing for
appointment to a post by following a particular procedure of
recruitment. Since such a provision enables appointment being
made without following the said procedure, it is in the nature
of an exception to the general provisions and must be resorted
to only in order to achieve the stated objectives, i.e., to enable
the family of the deceased to get over the sudden financial
crisis.
ii. Appointment on compassionate grounds is not a source of
recruitment. The reason for making such a benevolent scheme
by the State or the public sector undertaking is to see that the
dependants of the deceased are not deprived of the means of
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livelihood. It only enables the family of the deceased to get over
the sudden financial crisis.
iii. Compassionate appointment is not a vested right which can
be exercised at any time in future. Compassionate employment
cannot be claimed or offered after a lapse of time and after the
crisis is over.
iv. That compassionate appointment should be provided
immediately to redeem the family in distress. It is improper to
keep such a case pending for years.
v. In determining as to whether the family is in financial crisis,
all relevant aspects must be borne in mind including the income
of the family, its liabilities, the terminal benefits if any, received
by the family, the age, dependency and marital status of its
members, together with the income from any other source."
14. Though under any scheme which may be framed by the
State Government a person may be permitted to be wait-listed, such
wait-listing cannot ignore the basic purpose for which compassionate
appointment has to be granted as elucidated in State of West Bengal
Vs. Debabrata Tiwari (supra). In this case the mother of the
petitioner had passed away on 02/07/2009, the petitioner applied
on 10/12/2009 and was appointed on 10/08/2021, which speaks
for itself.
15. The question of suppression of information to be
disclosed was considered in The Secretary, A.P. Social Welfare-
Residential Educational Institutions Vs. Pindiga Sridhar and others
(2007) 13 SCC 352, as under :
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"7. The High Court on the basis of the erroneous view
upset the well-merited judgment of the learned Single Judge. By
now, it is well settled principle of law that the principles of
natural justice cannot be applied in a straight jacket formula. Its
application depends upon the facts and circumstances of each
case. To sustain the complaint of the violation of principles of
natural justice one must establish that he was prejudiced for
non-observance of the principles of natural justice. In the
present case, the fact on which the appellant terminated the
services of the respondent appointed on compassionate ground
was admitted by the respondent himself that when he applied
for the post on compassionate ground by its application dated
6.5.1996, his mother was in service. So also when he secured
the appointment by an order dated 22.11.2002 his wife was in
service since 3.8.1997 as Extension Officer in Rural
Development and later on promoted as Mandal Parishad
Development Officer at the time when he was appointed on
compassionate ground. These facts clearly disclose that the
appointment on compassionate ground was secured by playing
fraud. Fraud clocks everything. In such admitted facts, there was
no necessity of issuing show cause notice to him. The view of
the High Court that termination suffers from the non-
observance of the principles of natural justice is, therefore,
clearly erroneous. In our view, in the given facts of this case, no
prejudice whatsoever has been caused to the respondent. The
respondent could not have improved his case even if a show
cause notice was issued to him."
16. As indicated above, the purpose for disclosure regarding
the employment of a sibling, is to enable the authorities to make
proper enquiries as to the lack of financial support by the employed
sibling to other members of the family, which having being found to
be correct, only in which case the claim for compassionate
employment could be considered. In the instant matter, there is an
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intentional suppression of the employment of the brother of the
petitioner, as indicated above since 2009 till the petitioner was
appointed on 10/08/2021, and even thereafter, considering which, I
do not see any reason to interfere in the impugned order. The writ
petition is therefore dismissed. Rule stands discharged. No order as
to costs.
(AVINASH G. GHAROTE, J.)
Wadkar
