Bombay High Court

Pratibha Sanjay Padamalwar And ... vs Municipal Corporation Of Gr. ... on 12 January, 2023

Bench: S. G. Chapalgaonkar

                                                                       W.P. 1423-2022 (J).doc



Anand                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                             ORDINARY ORIGINAL CIVIL JURISDICTION

                                WRIT PETITION NO. 1423 OF 2022

        1.     Pratibha Sanjay Padamalwar                            .Petitioners
               Age - 45, Occu - Household

        2. Ashitosh Sanjay Padamalwar
           Age - 23, Occu - Education,
           Both R/at - Room No. 3, Begam Chawal,
           Near Prakash Medical, Natwar Nagar
           Road No. 5, Jogeshwari(E)
           Mumbai - 400 060.

                                            Vs.

        1. Municipal Corporation of Greater Mumbai   .Respondents
           Through, It's Commissioner, Mahapalika Marg,
           Mumbai - 01.

        2. Chief Labour Offcer,
           Municipal Corporation of Greater Mumbai

        3.     The Dean, through,
               Medical Superintendent,
               Dr. D. N. Cooper Hospital,
               Juhu, Mumbai - 46.

        4. The State of Maharashtra
           through Principal Secretary, Urban Development
           Department, Mantralaya,
           Mumbai - 32.

        Mr. Subhash V. Gutte a/w Ms Sayali S. Gutte, Advocate, for the
        Petitioners
        Mr. Amit Shastri, AGP a/w Mr. L. T. Satelkar, AGP, for the
        Respondent - State
        Mr. S. S. Pakle a/w. Mrs. Rupali Adhate, Advocate, for the MCGM

        CORAM                                 :   S. V. GANGAPURWALA, ACJ. AND
                                                  S. G. CHAPALGAONKAR, J.


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                                                           W.P. 1423-2022 (J).doc



RESERVED ON                      :   22 DECEMBER 2022

PRONOUNCED ON                    :   12 JANUARY 2023


JUDGMENT ( PER : S. G. CHAPALGAONKAR, J. )

1. The Petitioners have approached this Court under Article 226 of

the Constitution of India, thereby raising challenge to the Circular

dated 05.01.2016 issued by the Respondent - MCGM as well as order

dated 10.03.2021 rejecting Application of petitioner No. 02 seeking

appointment on compassionate ground.

2. The Petitioners are the widow and son of late Sanjay Padamalwar

who was serving under the establishment of the Respondent -

MCGM since 1988. However, he was medically invalidated w.e.f.

11.08.2018 at the age of 52 years.

3. The Petitioner No. 2, who is the son of Sanjay Padamalwar,

submitted an Application seeking appointment on establishment of

respondent-corporation on compassionate ground. However, the

claim of the Petitioner No. 2 came to be rejected by the Respondent -

MCGM under the communication dated 10.03.2021, stating that at

the time of medical invalidation, Mr. Sanjay Padamalwar, had

crossed 50 years of age. As per the Circular dated 05.01.2016,

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beneft of compassionate appointment cannot be made available to

the family member of the employee, who was more than 50 years of

age at the time of medical invalidation.

4. Learned counsel for the Petitioners submitted that the

Respondent - MCGM has a Scheme for providing compassionate

appointment to the family member of the employee, who died in

harness or suffered medical invalidation while in the service. As per

the original Scheme, family member of the employee, who has

suffered medical invalidation up to his age of 53 years were given

beneft of compassionate appointment. However, claim of the

Petitioner No. 2 is rejected giving reference to the impugned

Circular dated 05.01.2016 which reduced age limit to 50 years from

53 years.

5. Learned counsel for the Petitioners would submit that the

Government Resolution dated 21.09.2017 issued by the State of

Maharashtra provide for compassionate appointment to the family

members of the employees died in harness without restriction of age

of employee at the time of his death. In that view of the matter, the

policy, as prescribed by respondents under the Circular dated

05.01.2016 is inconsistent to the policy of the State Government. He

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would further submit that there is no rational behind providing the

age limit for extending the beneft of compassionate appointment in

respect of medically invalidated employee. Learned counsel for the

Petitioners would submit that there is no reason to discriminate

between the family member of the employee, who died in harness

and the employee medically invalidated, since suffering of family

member in both the cases is similar in nature. In support of his

contention, he relied on the Judgments of the Hon'ble Apex Court in

the case of

(i) Smt. Sushma Gosain And Ors. vs Union of India (Uoi) And

Ors, reported in AIR 1989 SC 1976;

(ii) Chandrakant Sakharam Karkhanis vs State Of

Maharashtra And Ors., reported in AIR 1977 Bom 193;

(iii) National Association of Blind vs Bombay Municipal

Corporation, Through its Commissioner and Another decided by

this Court dated 28.10.2020 in PIL-CJ-LD-VC-NO.45 OF 2020;

(iv) Umesh Kumar Nagpal vs State of Haryana, reported in

1994 SCC(4) 138;

(v) State of Chhatisgarh vs Dhirjo Kumar Sengar, reported in

2009(13) SCC 600;

(vi) V. Sivamurthy vs State of Andhra Pradesh & Ors decided

on 12.08.2008 in Civil Appeal No. 4210 of 2003.

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6. Learned counsel for the Respondent - MCGM would submit

that the compassionate appointment is not a matter of right, but

purely at the discretion of the Competent Authority. He would

submit that compassionate appointment can be given only in

serious cases strictly in accordance with the Scheme / Policy of the

employer. The Circular dated 05.01.2016 prescribes maximum age

of 50 years in respect of medically invalidated employee for

extending beneft of compassionate appointment to his family

member. He submits that there is a valid object behind prescribing

age criteria, since there is tendency on the part of the employees

nearing the age of superannuation to take advantage of the

Scheme and seek retirement on medical ground. Learned counsel

for the Respondent - MCGM further submits that previously, the

Petitioners had approached this Court seeking similar relief in W.

P. (L) No. 3966 of 2021. The Petitioners had raised challenge to the

validity of the Circular dated 05.01.2016. The said Writ Petition

was disposed of with directions to the Corporation to decide the

Petitioner's Application/representation seeking appointment on

compassionate ground on the post of 'Peon' on its own merits. The

Corporation after considering merits of the matter took the

conscious decision based on existing policy and refused to

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entertain the claim. The decision of the Corporation dated

10.03.2021 is communicated to the Petitioners.

7. Learned counsel for the Respondent while repelling the

contention of the Petitioners relied on the Judgment of the Hon'ble

Apex Court in the case of

(i) Food Corporation of India And Another vs Ram Kesh Yadav

And Another, reported in (2007)9 SCC 531;

(ii) Steel Authority of India Ltd. vs Madhusudan Das, reported

in 2009 AIR(SC) 1153;

(iii) The State of Maharashtra & Anr. Vs Bhagwan & Ors in the

case of Civil Appeal Nos. 7682-7684 OF 2021 decided on

10.01.2022;

(iv) Smt. Nilima Raju Khapekar vs The Executive Director,

Bank of Baroda, Baroda and others decided by this Court, Bench

at Nagpur on 22.04.022 in W. P. No. 3907 of 2021.

8. We have heard learned counsels for respective parties. It is

not in dispute that Sanjay Padamalwar i. e. father of the Petitioner

No. 2 was employed as Peon from 01.11.1988 till he was medically

invalidated w.e.f. 18.08.2018. He was aged about 52 years at that

time. On or about 07.02.2019, Petitioner No. 2 applied seeking

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compassionate appointment claiming his father is medically

invalidated. The Respondent - MCGM declined to consider claim of

the Petitioner No. 2 giving the reason that father of the Petitioner

No. 2 had crossed age of 50 years. Hence, as per policy underlined

in Circular dated 05.01.2016, claim cannot be considered.

9. It is the trite that appointment on compassionate ground is

not a right but the same has been provided by way of policy

adopted by the employer. The Respondent has framed their own

policy under the executive instructions. The policy provides for

compassionate appointment in case of death of employee in

harness or medical invalidation. The Respondent - MCGM has

issued Circular dated 05.01.2016, thereby fxing age criteria of 50

years in respect of the employee medically invalidated for

extending beneft of the compassionate appointment to his family

member.

10. The Hon'ble Supreme Court of India in the case of Food

Corporation of India And Another (Supra) has observed in

paragraph 9 which reads as under :-

"9. There is no doubt that an employer cannot be directed to act contrary to the terms of its policy governing compassionate appointments. Nor can compassionate appointment be

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directed dehors the policy. In LIC v. Asha Ramchhandra Ambekar this Court stressed the need to examine the terms of the rules/scheme governing compassionate appointments and ensure that the claim satisfed the requirements before directing compassionate appointment. In this case, the scheme clearly bars compassionate appointment to the dependent of an employee who seeks voluntary retirement on medical grounds, after attaining the age of 55 years. There is a logical and valid object in providing that the beneft of compassionate appointment for a dependent of an employee voluntarily retiring on medical grounds, will be available only where the employee seeks such retirement before completing 55 years. But for such a condition, there will be a tendency on the part of employees nearing the age of superannuation to take advantage of the scheme and seek voluntary retirement at the fag end of their service on medical grounds and thereby virtually creating employment by "succession". It is not permissible for the court to relax the said condition relating to age of the employee. Whenever a cut-off date or age is prescribed, it is bound to cause hardship in marginal cases, but that is no ground to hold the provision as directory and not mandatory."

11. The observations of Hon'ble Apex Court in the aforesaid

matter shows that the employer has every right to adopt the age

criteria of the employee retiring on medical ground for purpose of

providing beneft of compassionate appointment to his family

member. It is not permissible for the Court to relax such criteria

relating to the age of employee. Even provision prescribing age

limit cannot be considered directly.

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12. In view of the aforesaid observations, it is diffcult to accede

with the contention of the Petitioners that, the Circular dated

05.01.2016 prescribing age limit of 50 years in respect of the

employee retiring on medical ground for appointment of his

family member on compassionate ground is unjust or

unreasonable. We have observed that policy regarding

compassionate appointment framed by respondent is by way of

executive instructions only. There is nothing on record to show

that impugned circular dated 05.01.2016 is inconsistent with

policy adopted by respondent corporation or same is Ultra Vires.

There is no statutory scheme or provision applicable to MCGM

providing for appointment to the wards of employee retiring on

medical grounds. In absence of that, the MCGM is empowered to

frame the policy or issue executive instructions in this regard.

The policy framed by the instrumentality of the State cannot be

assailed unless demonstrated that such policy suffers from vice of

arbitrariness or it is so irrational that no man of ordinary

prudence will accept it. It is prerogative of an employer to provide

for age criteria for application of provision relating to

compassionate appointment to the ward of medically invalidated

employee. The policy decision taken by the Respondent - MCGM

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to bring down age of medically invalidated employee to 50 years

from 55 years under the impugned Circular is based on their

wisdom and administrative exigency.

13. The contention of the Petitioners that the Circular dated

05.01.2016 is inconsistent with the policy of the State

Government underlined in Government Resolution dated

21.09.2017 cannot be accepted for the simple reason that, the

policy under the Government Resolution is applicable to the

employee of the State Government. It is not adopted by

corporation. Further the Government Resolution dated

21.09.2017 shows that there is no provision for compassionate

appointment to the family member of employee medically

invalidated. The scheme of the State Government provides for

compassionate appointment only in the case of death in harness.

The Petitioners are claiming beneft of the policy which is framed

by the Respondent - MCGM. Therefore, argument on this count is

not acceptable.

14. Learned counsel for the Petitioners relied upon the

Judgment in the case of Smt. Sushma Gosain And Ors. (Supra) to

contend that the claims for compassionate appointment shall be

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considered expeditiously, since the family of the deceased

employee required to mitigate the hardship. There cannot be

dispute regarding the proposition. Similarly, learned counsel for

the Petitioners has relied upon the Judgment of the Hon'ble Apex

Court in the case of Umesh Kumar Nagpal (Supra) . However, it

has no application in the facts of the case. Learned counsel for the

Petitioners has further relied upon the Judgment of the Hon'ble

Apex Court in the case of Director of Education (Supra), wherein

directions were given to create supernumerary posts to

accommodate the Petitioner. The said Judgment is also not

relevant to consider the issue posed for consideration in this case.

Learned counsel for the Petitioners further relied upon the

Judgment of the Hon'ble Apex Court in the case of V. Sivamurthy

vs State of Andhra Pradesh & Ors, wherein the Hon'ble Apex

Court has laid down that no discrimination can be made between

the employee, who died while in service and the employee, who

has been medically invalidated while considering the

compassionate appointment of dependents. The said observations

are made while setting aside a Full Bench Judgment of Andhra

Pradesh High Court holding that there cannot be appointment on

compassionate ground in cases other than death of a government

servant in harness, and that any scheme for compassionate

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appointment on medical invalidation of a government servant, is

unconstitutional, being violative of Article 16 of the Constitution

of India.

15. However, in the present case, there is no dispute of similar

nature. Learned counsel for the Petitioners has further relied

upon the Scheme of compassionate appointment framed by the

Government of India, Ministry of Personnel/Public Grievances

and Pensions which provides for compassionate appointment in

case of the employee retired on medical ground. However, claim

of the Petitioners will have to be assessed on the basis of the

Schemed framed by the Respondent.

16. Learned counsel for the Respondent - Corporation has

invited our attention to the Judgment of the Hon'ble Apex Court

in the case of Steel Authority of India Ltd. vs Madhusudan Das

and referred to paragraph 16. The observations in paragraph 16

read as under :-

"16. It may be that such a provision was made as a measure of social beneft but it does not lay down a legal principle that the court shall pass an order to that effect despite the fact that the conditions precedent therefor have not been satisfed...."

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17. Learned counsel for the Respondent has further relied

upon the Judgment of the Hon'ble Apex Court in the case of The

State of Maharashtra & Anr. Vs Bhagwan & Ors. particularly on

the following observations which read as under :-

"As per the law laid down by this Court in a catena of decisions, the employees of the autonomous bodies cannot claim, as a matter of right, the same service benefts on par with the Government employees. Merely because such autonomous bodies might have adopted the Government Service Rules and/or in the Governing Council there may be a representative of the Government and/or merely because such institution is funded by the State/Central Government, employees of such autonomous bodies cannot, as a matter of right, claim parity with the State/Central Government employees." \

18. Learned counsel for the Respondent has further relied

upon the Judgment of the Hon'ble Apex Court in the case of

State of Chhatisgarh vs Dhirjo Kumar Sengar and invited our

attention to the observations in paragraphs 15 to 17 which state

that appointment on compassionate ground is an exception to

the constitutional scheme of equality as adumbrated under

Articles 14 and 16 of the Constitution of India. Nobody can claim

appointment by way of inheritance.