Abhijit S/O Manikrao Shrikhande vs State Of Maharashtra, Through ...
2023 Latest Caselaw 10211 Bom

2023:BHC-NAG:14426-DB


               J.19.wp.1909.2020.odt                                                    1


                        IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                                  NAGPUR BENCH, NAGPUR.

                               WRIT PETITION NO.1909 OF 2020
                           Shri Abhijit s/o Manikrao Shrikhande,
                           Aged about 30 years, Occupation - Nil
                           R/o. Shikshak Colony, Bhonde Plot,
                           Near Rest House, Anjangaon Surji,
                           Tq. Anjangaon Surji, District Amravati
                                                                        ...PETITIONER
                                              VERSUS
               1.          State of Maharashtra,
                           through Department of General
                           Administration, through its Secretary,
                           Mantralaya, Mumbai - 32

               2.          Zilla Parishad, Amravati
                           through its Chief Executive Officer

               3.          Deputy Chief Executive Officer,
                           Zilla Parishad, Amravati
                                                                     ...RESPONDENTS
               ______________________________________________________

                           Mr. S.S. Shingane, Advocate for the petitioner.
                           Mr. S.M. Ukey, Addl.G.P. for respondent No.1/State.
                           Mr. Milind G. Rathi, Advocate for respondent Nos.2 and 3.
               ______________________________________________________

                                   CORAM :       AVINASH G. GHAROTE &
                                                 URMILA JOSHI-PHALKE, JJ.
                           RESERVED ON       :   SEPTEMBER 07, 2023
                        PRONOUNCED ON        :   OCTOBER 04, 2023

               JUDGMENT (Per Urmila Joshi-Phalke, J.)

RULE. Rule made returnable forthwith. Heard finally with

the consent of learned Counsel for the parties.

2. By this writ petition, the petitioner is seeking declaration that

he is eligible for compassionate appointment in respondent No.2 - Zilla

Parishad, Amravati and direction to respondent No.2 to include the

name of the petitioner in the list of the eligible candidates for

compassionate appointment. The father of the petitioner Shri Manikrao

Shrikhande was working as Assistant Teacher in Zilla Parishad Primary

School who died on 30th December, 2009. As per the contention of the

petitioner he is qualified as B.Sc. B.Ed. and Diploma in Construction

Supervisor. In view of Government Resolution dated 16 th October, 1994

present petitioner is eligible for the appointment on compassionate

ground. The subsequent Government Resolution dated 21 st September,

2017 also makes the present petitioner eligible for the appointment on

compassionate ground. Therefore, he filed an application on 6 th April

2010 to the Education Officer, Zilla Parishad, Amravati for seeking

compassionate appointment. Respondent No.2- Zilla Parishad published

waiting list wherein the name of the petitioner was at serial No.51. The

appointment to the petitioner was refused by the Education Officer on

the ground that the brother of the petitioner is already in service,

therefore, the petitioner is not complying with the requirement as there

is no need of immediate succour to the petitioner or a financial crisis.

3. As per the contention of the present petitioner, his brother is

residing separately and not maintaining the family. During the pendency

of proposal of compassionate appointment he was appointed in the State

Bank of India. However, as he is residing separately and not maintaining

the family, the petitioner who is residing along with his mother is facing

the financial crisis. In view of Government Resolution, the policy was

made by the Government to assist the family members of the deceased

employee for their immediate succour which was not considered by the

Education Officer while considering the claim of compassionate

appointment. On 31st December, 2018, respondent No.2 issued notice by

which information was sought whether any family member was

recruited in Government or Semi-government employment. On 26 th

March, 2019, respondent No.2 again issued notice and called the

respondents for hearing as report of the Block Development Officer was

received on 5th April, 2019. The petitioner was present before

respondent No.2 for hearing along with consent letter. However, without

considering the fact that the family of the deceased employee is facing

financial crisis, on 11th April, 2019 proposal for compassionate

appointment was rejected on the ground that brother of the petitioner is

in Government service and there is no emergent need of the family.

Being aggrieved with the same, present petition is preferred by the

petitioner stating that the order passed by the Education Officer refusing

the compassionate appointment to the petitioner is arbitrary, illegal and

against the policy of the Government which is liable to be quashed and

set side.

4. Said contention is opposed by the learned Assistant

Government Pleader on the ground that the enquiry report received from

the Block Development Officer, Panchayat Samiti, Achalpur on 26 th

March, 2019 shows that the family member of the petitioner is already

in Government service, the object of the compassionate appointment to

give immediate succour to the family which is now not in existence and

rightly rejected the claim. It is further submitted that mother of the

petitioner had already received the pensionary benefits and the other

emoluments which she was entitled to receive on account of death of the

employee. As the immediate succour is not required now, therefore, the

Chief Officer of Zilla Parishad has rightly rejected the application of the

petitioner for compassionate appointment.

5. Heard Mr. S. Shingane, learned Counsel for the petitioner, Mr.

S.M. Ukey, learned Additional Government Pleader for respondent

No.1/State and Mr. M.G. Rathi, learned Counsel for respondent Nos.2

and 3.

6. Shri Shingane, learned Counsel for the petitioner submitted

that the object behind the compassionate appointment is to give

immediate succour to the family of the deceased employee. Admittedly,

at the time of filing the application, nobody was in the service and the

application was filed within time. The policy of 1994 gives right to the

petitioner for compassionate appointment which was not considered by

the Chief Officer, Zilla Parishad, Amravati. By the Government

Resolution dated 21st September, 2017 also the petitioner has right for

the compassionate appointment which was not considered by the Chief

Officer of Zilla Parishad, Amravati. He submitted that the application of

the petitioner was in time. He was included in the waiting list also and

subsequently, his name was deleted on the ground that his brother was

appointed in the State Bank of India. In fact, his brother is staying

separately and now he is not the part of the family. The financial

requirement is still in existence, therefore, the petitioner is required to

be considered for the compassionate appointment. Despite there is clear

cut provision for the compassionate appointment in the Government

Resolution, the Chief Officer has not considered the same and wrongly

rejected the prayer of the petitioner for compassionate appointment.

7. Per Contra, learned Assistant Government Pleader submitted

that the object behind providing appointment on compassionate ground

by way of exception to the general rule of appointment. The object is to

give immediate succour to the family of the deceased employee.

Therefore, whether the family is indigent or not is to be ascertained, and

therefore, enquiry was held and it was revealed that the family member

of the petitioner is in a Government service and now the aspect of the

immediate succour is not in existence, therefore, the compassionate

appointment is rightly rejected. Learned Counsel for respondent No.2

endorsed the same contention and submitted that the order passed by

the Chief Officer, Zilla Parishad, Amravati.

8. There is no dispute that public employment in offices or posts

under the State must be in accordance with statutory rules or in their

absence, as per the instructions of the executive issued for regulating

recruitment. The whole object of granting compassionate employment

by an employer being intended to enable the family members of a

deceased employee to tide over the sudden financial crisis, appointments

on compassionate grounds should be made immediately to assist the

family in distress. As far as the legal position is concerned, there is no

dispute that none can claim a compassionate appointment by way of

right or inheritance. It is a concession and not a right and the criteria

laid down in the Rules must be satisfied by all the applicants who are the

aspirants. An employer cannot be compelled to make an appointment

on compassionate ground contrary to its policy. Therefore, satisfaction

that the family members have been facing financial distress and that an

appointment on compassionate ground may assist them to tide over such

distress. The dependent must fulfill the eligibility criteria for such

appointment. There is no dispute as far as the legal proposition of law is

concerned as settled by the Hon'ble Apex Court for appointment on

compassionate ground that policy relevant at the time of death of the

deceased employee is required to be considered and not the subsequent

policy.

9. In the light of above legal position, if the case of the present

petitioner is considered there is no dispute that father of the petitioner

was serving as an Assistant Teacher in Zilla Parishad Primary School. He

died on 30th December, 2009. Thereafter the petitioner approached to

the Education Officer by filing an application on 6 th April, 2010 for

seeking compassionate appointment on the establishment of Zilla

Parishad, Amravati. There is no dispute as far as the educational

qualification is concerned that the application was initially taken into

consideration by respondent No.2 - Zilla Parishad and the name of the

present petitioner was included in the waiting list at serial No.51. During

the pendency of the proposal of the present petitioner, his brother -

Aniket was appointed in State Bank of India. While considering the

proposal for appointment on compassionate ground to ascertain the

financial condition of the present petitioner, respondent No.2 inquired

with the relevant persons and it revealed that the brother of the

petitioner namely Aniket was appointed in the State Bank of India. It

further revealed that the mother of the present petitioner received the

pensionary benefits as well as amount towards gratuity, GPF, Group

Insurance Scheme, etc. as well as pension was also sanctioned to her.

The Block Development Officer has submitted his report from which it

was reflected that now the issue regarding the financial succour is not in

existence, and therefore Chief Executive Officer, Zilla Parishad, Amravati

decided to delete the name of the present petitioner.

10. Learned Counsel placed reliance on the Government

Resolution dated 26th October, 1994 which shows that the policy to

appoint the dependents of the deceased employee was introduced by the

Government with intention to render some assistance to the family

members of the employees who are left in distress due to the death of

the said employee. The Schedule 'A' of the Government Resolution which

is reproduced hereunder :

"परिशिष्ट "अ"

1. महाराष्ट्र राज्य शासनाच्या सर्व कार्यालयात अनुकंपा कारणास्तव करावयाच्या नेमणुकां ना हे नियम लागू राहतील.

2. खालील प्रकारां मध्ये मोडणाऱ्या शासकीय कर्मचाऱ्यां चे (रूपां तरित स्थायी व अस्थायी आस्थापनेवरील कर्मचारी वरून)

3. (अ) येथील नातेवाईक या नियमानुसार अनुकंपा कारणास्तव शासकीय सेवेत नेमणुकीसाठी पात्र असतील :-

(अ) शासकीय सेवेत असतां ना दिवंगत झालेले कर्मचारी, (ब) क्षय, कर्क रोग इत्यादी गंभीर आजारामुळे, सक्षम वैद्यकीय अधिकाऱ्यां च्या प्रमाणपत्रानुसार अकाली निवृत्त झालेले अधिकारी/कर्मचारी, (क) मानसिक किंवा शारीरिक विकलां गता आल्याने , सक्षम वैद्यकीय अधिकाऱ्याने पुढील से वेसाठी अक्षम ठरविल्याने, अकाली निवृत्त करण्यात आलेले किंवा वरील कारणास्तव सेवेतून काढू न टाकण्यात आलेले कर्मचारी, (ड) शासकीय सेवेत कर्तव्य बजावीत असताना अपघाताने अपंग झालेले परं तु महाराष्ट्र नागरी सेवा (निवृत्ती वेतन) नियम 1982 मधील नियम 72 (3) अनुसार पर्यायी पद दे ऊ करूनही ते न स्वीकारता सेवानिवृत्ती स्वीकारणारे कर्मचारी.

3. (अ) दिवंगत/अकाली निवृत्त शासकीय कर्मचाऱ्यां ची पती/पत्नी, मुलगा किंवा अविवाहित मुलगी अथवा मृत्यूपूर्वी/अकाली सेवानिवृत्ती पू र्वी कायदे शीर रित्या दत्तक घेतलेला/घेतलेली मुलगा/अविवाहित मुलगी ही नियमानुसार नेमणुकीस पात्र नाते वाईक मानण्यात ये तील. याशिवाय अन्य कुठल्याही नातेवाईकास या योजनेचा फायदा मिळणार नाही.

(ब) सदर नेमणूक शासकीय कर्मचाऱ्याच्या फक्त एकाच नाते वाईकास दे ता येईल.

4. (अ) अनुकंपा तत्वावर संबंधित नातलगाची शैक्षणिक पात्रता व वय यानुसार राज्य शासनां तर्गत कोणत्याही गट "क" व गट "ड" श्रेणीच्या सरळ सेवा प्रवेशाने भरल्या जाणाऱ्या पदावर नियुक्ती करता येईल. या नियमानुसार नियु क्ती मिळण्यासाठी महाराष्ट्र लोकसेवा आयोगाच्या स्पर्धा परीक्षेस बसण्याची आवश्यकता नाही. तसेच वरील नियमानुसार सदर पदां वर नेमणूक करण्यासाठी महाराष्ट्र लोकसेवा आयोगाचा सल्ला घेण्याची आवश्यकता नाही. मात्र, लोकसेवा आयोगाच्या कक्षेतील पोलीस उपनिरीक्षक, विक्रीकर निरीक्षक, मोटार वाहन उपनिरीक्षक, रें ज वन अधिकारी, कनिष्ठ अभियंता, सहाय्यक वैद्यकीय अधिकारी इत्यादी गट "क" मधील कार्यकारी (एक्झिक्यूटिव्ह) पदां वर तसे च मंत्रालयातील सहाय्यक पदां वर नियुक्ती दे ता येणार नाही.

(ब) संबंधित पदां साठी विहित शैक्षणिक पात्रता आणि निम्न वयोमर्यादा याबाबतच्या अटी या नेमणुकां साठी कटाक्षाने पाळण्यात येतील. परं तु उच्च वयोमर्यादे ची अट राहणार नाही.

(क) तथापि, दिवंगत/अकाली निवृत्त कर्मचाऱ्यां ची पत्नी शैक्षणिक पात्रते व्यतिरिक्त इतर अटी पूर्ण करीत असल्यास तिच्या बाबतीत गट "ड" मध्ये नेमणुकीसाठी शैक्षणिक पात्रतेची अट शिथिल करता येईल.

5. (अ) अनुकंपा कारणास्तव नेमणुकीसाठीचा अर्ज शासकीय कर्मचारी दिवंगत/अकाली निवृत्त झालेल्या दिवसापासून पाच वर्षाचे मुदतीत करणे आवश्यक असेल.

(ब) दिवंगत/अकाली निवृत्त कर्मचारी ज्या कार्यालयात काम करीत होता, त्या कार्यालयातील संबंधित नियुक्ती प्राधिकारी या नियमानुसार नेमणूक दे ण्यास सक्षम राहील. त्यासाठी त्याने निवड समितीचा सल्ला घेणे आवश्यक नाही. मात्र, नातेवाईकाने सदर प्राधिकार्‍यां कडे उपरीनिर्दिष्ट मुदतीत नेमणुकीसाठी अर्ज करणे आवश्यक राहील.

6. (अ) संबंधित कार्यालयात आवश्यक पद उपलब्ध नसेल तर कार्यालय प्रमुखां नी त्या जिल्ह्यातील/विभागातील इतर कार्यालयाच्या नियुक्ती प्राधिकार्‍ यां कडे संपर्क साधावा व ज्या कार्यालयात आवश्यक पद उपलब्ध असेल त्या कार्यालयामध्ये नियुक्तीसाठी विचार करावा.

(ब) जे कार्यालय प्रमुख/विभाग प्रमुख त्यां च्या कार्यालयात/विभागात उपलब्ध असलेल्या पदां ची माहिती या माहितीची विचारणा करणाऱ्या कार्यालय प्रमुखास/विभाग प्रमुखास दे णार नाहीत, अशा कार्यालय प्रमुख/विभाग प्रमुखांविरुद्ध शिस्तभंगाची कारवाई करण्यात येईल.

(क) सर्व कार्यालय प्रमुखां नी/विभाग प्रमुखां नी त्यां च्या कार्यालयात/ विभागात अनुकंपा तत्वावर नियुक्ती करता आलेल्या एकूण अर्जांची संख्या प्रत्यक्षात नियुक्ती दे ण्यात आलेल्या उमे दवारां ची संख्या, तसेच अनुकंपा तत्वावर नियुक्ती करिता संबंधित कार्यालयात/विभागात नियुक्ती केलेल्या/प्रतिक्षा यादीवर असलेल्या उमे दवारां ची माहिती सोबतच्या "क" विवरणपत्रात संबंधित प्रशासकीय विभागाकडे दर सहा महिन्यांनी पाठविणे बंधनकारक राहील. या नियमानुसार असा 31 डिसेंबर 1993 ची स्थिती दर्शविणारा सहामाही अहवाल 15 जानेवारी 1995 पर्यंत पाठवावा.

7. (अ) अनुकंपा तत्त्वावर नियुक्ती करिता मासिक उत्पन्नाची तसे च ठोक रकमेची मर्यादा यापुढे राहणार नाही.

(ब) अनुकंपा तत्वावर नियुक्ती दे ताना असे प्रस्ताव शासन सेवेतील रोजगारावर असलेली मर्याद्याच्या योजनेच्या मागील भू मिका लक्षात घेऊन जो कर्मचारी मृत झाला त्याच्या कुटुं बीयां ना तत्काळ उद्भवणाऱ्या आर्थिक पेच प्रसंगावर मात करण्याच्या उद्दे शाने विचारात घ्यावेत.

एखाद्या कुटुं बात मृत कर्मचाऱ्यां चा नातेवाईक पूर्वीच सेवेत असेल , तथापि तो त्याच्या कुटुं बातील अन्य सदस्यां ना आधार दे त नसेल तर अशा

प्रकरणात त्या कुटुं बाची आर्थिक परिस्थिती हलाखीची आहे किंवा कसे हे ठरवितां ना नियु क्ती अधिकाऱ्याने अत्याधिक दक्षता घ्यावी, जेणेकरून से वेत असलेला सदस्य कुटुं बाचा उदरनिर्वाह करीत नाही या नावाखाली अनुकंपा तत्वावरील नियुक्तीचा दु रुपयोग केला जाणार नाही.

यासंदर्भात नियु क्ती अधिकाऱ्याने मिळणाऱ्या निवृत्तीवेतनाची रक्कम, कुटुं बातील व्यक्ती ंची संख्या, त्याची मालमत्ता, दायित्व, गंभीर आजारामुळे किंवा अपघातामुळे मृत झाला असल्यास त्यासाठी करण्यात आलेला वैद्यकीय खर्च, कुटुं बातील मिळवत्या व्यक्ती इत्यादी बाबी विचारात घेणे अपे क्षित आहे .

8. उपरोक्त 4(क) व्यतिरिक्त कोणत्याही अटी शिथिल करण्याची शक्ती शासनाकडे राहणार नाही."

11. Learned Counsel further placed reliance on the Government

Resolution dated 21st September, 2017. Undisputedly, this Government

Resolution is not applicable in the case of the present petitioner as death

of the deceased was on 30th December, 2009 and the application was

filed on 06th April, 2010. In view of well settled legal position, the policy

which was in existence at the relevant time is to be considered and any

appointment on compassionate ground has to be made in terms of the

scheme therein and not otherwise. Subsequently, Government Resolution

dated 22nd August, 2005 was introduced and the earlier Government

Resolution of 1994 was revised. In view of the said Government

Resolution also the object was to give immediate succour to the family

members of the employees. Thus, one of the condition which was

required to be considered for appointment on the compassionate ground

is that whether the family is in need of immediate succour and whether

the family is in a financial distress. Therefore, the enquiry was carried

out and it revealed that now the ground of immediate succour is not in

existence as one of the family member has already joined the

Government service and there is assistance to the family.

12. Admittedly, the application was filed on 06th April, 2010 and

the petition is filed in the year 2020 i.e. after 10 years. As observed by

the Full Bench of this Court in Nilima Raju Khapekar Vs. Executive

Director, Bank of Baroda and others, [2022(3) Mh.L.J. 44 1] that the

whole object of granting compassionate employment by an employer

being intended to enable the family members of a

deceased/incapacitated employee to tide over the sudden financial crisis,

appointments on compassionate ground should be made immediately to

redeem the family in distress. While considering this aspect the Full

Bench had considered various judicial decisions rendered by this Court

as well as by the Apex Court and held that the family members of

employee dying-in-harness have to demonstrate indigence only upon a

satisfaction being reached that the family, being indigent, needs

immediate succor by way of an appointment on compassionate ground,

it may proceed to determine eligibility on the other counts. This aspect is

further considered by the Hon'ble Apex Court recently in the case of

State of West Bengal Vs. Debabrata Tiwari and ors. (AIR 2023 SC 1467)

wherein it is observed by referring the judgment of Umesh Kumar

Nagpal vs. State of Haryana, [(1994) 4 SCC 138] that the object of

granting compassionate employment is to enable the family of a

deceased government employee to tide over the sudden crisis by

providing gainful employment to one of the dependents of the deceased

who is eligible for such employment. That mere death of an employee in

harness does not entitle his family to such source of livelihood; the

Government or the public authority concerned has to examine the

financial condition of the family of the deceased and it is only if it is

satisfied that, but for the provision of employment, the family will not be

able to meet the crisis, that a job is to be offered to the eligible member

of the family, provided the scheme or rules provide for the same. This

Court further clarified in the said case that compassionate appointment

is not a vested right which can be exercised at any time after the death

of a government servant. That the object being to enable the family to

get over the financial crisis which it faces at the time of the death of the

sole breadwinner, compassionate employment cannot be claimed and

offered after lapse of considerable amount of time and after the crisis is

overcome. It is further held by the Hon'ble Apex Court that since

compassionate appointment is not a vested right and the same is relative

to the financial condition and hardship faced by the dependents of the

deceased government employee as a consequence of his death, a claim

for compassionate appointment may not be entertained after lapse of a

considerable period of time of the death of the government employee. In

the case of Fertilizers and Chemicals Travancore Ltd. and ors. Vs.

Anusree K.B. (2022 LiveLaw (SC) 819) also the Hon'ble Apex Court has

held that after a period of 24 years from the death of the deceased

employee, the respondent shall not be entitled to the appointment on

compassionate ground. If such an appointment is made now and/or after

a period of 14/24 years, the same shall be against the object and

purpose for which the appointment on compassionate ground is to be

provided.

13. Admittedly, the whole object of granting compassionate

employment is, thus, to enable the family to tide over the sudden crisis.

The object is not to give such family the appointments by making

exception to the general rule. Admittedly, a compassionate appointment

is an exception to the general rule of appointment where the

breadwinner dies in leaving his family in penury and without any means

of livelihood, and in such cases, out of pure humanitarian consideration

taking into consideration the fact that some source of livelihood is to be

provided due to which the family would be able to make their life to

meet the financial crisis. Applying the law laid down by the Hon'ble

Apex Court and also by this Court in various decisions to the facts of the

case on hand and considering that the purpose for which the

appointment on compassionate ground is provided, the petitioner shall

not be entitled to the appointment on compassionate ground after a

period of 12 to 13 years from the date of demise of the deceased

employee as now that immediate succour required by the family is not in

existence. If such appointment is made after a period of 12 to 13 years it

would be against the object and purpose for which the appointment on

compassionate ground is provided.

14. Under these circumstances, the petition of the petitioner

deserves to be dismissed.

15. Hence, the petition is dismissed with no order as to costs.

16. Rule stands discharged.

(URMILA JOSHI-PHALKE, J.) (AVINASH G. GHAROTE, J.)

*Divya

Signed by: Mrs. Divya Baldwa Designation: PA To Honourable Judge Date: 04/10/2023 15:37:57