MUMTAZ YUNUS MULANI v. STATE OF MAHARASHTRA & Ors.

Punjab National Bank v. Ashwini Kumar Taneja (2004) 7 E SCC 265; Smt. Sushma Gosain & Ors. v. Union of India & Ors. (1989 (4) SCC 468; State of J & K & Ors. v. Sajad Ahmed Mir (2006) 5 SCC 766; Umesh Kumar Nagpal v. State of Haryana & Ors. (1994) 4 SCC 138; National Institute of Technology & Ors. v. Niraj Kumar Singh 2007 (2) SCALE 525; F and I. G. (Karmik) & Ors. v. Prahalad Mani Tripathi (2007) 6 sec 162 - relied on. General Manager (D&PB) & Ors. v. Kunti Tiwary & Anr. [{2004) 7 SCC 271; Govind Prakash Varma v. Life Insurance Corporation of India & Ors. [(2005) 10 SCC 289 - referred to.

1.2 In the instant case, the respondent is a charitable institution. It is run on Government aid. It cannot afford to appoint persons in a post which has not been sanctioned. It h~s not been denied or disputed that one person has already been appointed in place of the deceased husband G H -,~- ~~ -I -r -· MUMTAZ YUNUS MULANI v. STATE OF MAHARASHTRA & ORS. [S.B. SINHA, J.] 243 of the appellant. Besides, since appellant's husband died A as far back as onr16.9.1996 and the vacancy was filled up in the year 1997, appellant's case could not have been considered on the basis of the policy decision contained in the Government Order dated 31st December 2002. The High Court also in its judgment noticed that the scheme B which was operative at the relevant point of time was that appointment on compassionate ground should not be given if the monthly income exceeds Rs.5,00/-. Evidently, the appellant did not fulfill the said criteria. Furthermore, about 12 years have passed. Appellant's son is aged about c 20 years and daughter is aged about 16 years. Therefore, they have become major. Keeping in view the fact situation obtaining in the case, no case has been made out for exercising discretionary jurisdiction under Article 136 of the Constitution of India. [para 9,15-17] [245-G, H; 246-A; 249-G; 250-A-D] D CIVILAPPELLATE JURISDICTION: Civil Appeal No. 2002 of 2008. From the final Judgment and Order dated 19.08.2006 of the High Court of Judicature at Bombay in Writ Petition No. 7369 E of 1999. Makarand D. Adkar and Vishwajit Singh for the Appellant. Sudhanshu S. Choudhari, Naresh Kumar and 'V.N. Raghupathy for the Respondents. F The Judgment of the Court was delivered by S.B. SINHA, J.

Leave granted.

Whether compassionate appointment of the appellant is warranted in the facts and circumstances of this case is the G question involved herein. > ....,,

Appellant is the widow of one Yunus Dastagir Mulani. He was a Peon witking in the respondent, a vocational institution. It is a public charitable trust. Appellant's husband expired on 6.9.1996. She filed an application for appointment on H 244 SUPREME COURT REPo'RTS (2008] 5 $.C.R. I- .. -f ~ A compassionate ground. As no response thereto was received, she made representations.

Second Respondent, however, declined to give any appointment on compassionate ground to the appellant. She filed a writ petition before the High Court. By reason bf the impugned judgment the said petition has been dismissed. B

Mr. Makarand D. Adkar, learned counsel appearing on behalf of the appellant, would submit that the reason for depriving the appellant of the right to be appointed on compassionate c ground, being payment of family pension, the impugned judgment cannot be sustained. It was contended that the appellant has a large family to maintain which includes her two grown up children. The family pension received by her being only Rs.1, 100/- per month, the respondent should be directed to offer appointment on compassionate ground to her even at . that stage. 0 E

Learned counsel appearing on behalf of the respondents, on the other hand, would contend that imm~diately upon the death of the appellant's husband, the respondents supported the case of the appellant in assisting her to get the retrial benefits of her husband. However, in the year 1997, another person being Mr. Arun Uttereshwar having been appointed, it is not possible to dismiss him from service so as to accommodate the appellant. F

Appellant's husband was appointed in a Class IV post. The school is an aided institution. The State, although instructed the respondent to appoint the appellant on compassionate ground, it appears, such an instruction had been issued in view of the scheme for appointment on compassionate ground as G contained in the Government Order dated 31 51 December, 2002. The said resolution, inter alia, reads as under : "1) Re!garding giving appointment on compassionate principle, the abovH scheme will be applicable to all teachers and employees other than teachers of +- .... H MUMTAZ YUNUS MULANI v. STATE OF MAHARASHTRA & ORS. [S.8. SINHA, J.] .245 ~ private, primary, secondary and higher middle as A well as training schools for teachers. 2) Rules rel, ating to absorption of relatives of employees deceased or retired because of medical reason, are given in the enclosed Annexure "A". 8 3) 4) Information about application to be made for service by the concerned relatives of employees and documents to be submitted along with it will be as mentioned in Annexure "8". If the decision is taken prior to implementation of this c scheme in respect of giving/refusing to give appointment on compassionate principle, those cases should not be taken into consideration for review. However, those employees who are deceased or those employees who are prematurely D retired because of incurable illness after 1 January, 2001, in case if persons from such family have applied for appointment on compassionate principle, and if in case their application has been turned down, such relatives can submit their application again afresh in E this scheme. "

7. The fact that the appellant has been receiving family pension is not in dispute. It has furthermore been averred in the counter affidavit that she has income from the immoveable properties in regard whereto, there is no denial or dispute. F

Appointment on compassionate ground can only be granted to tide over the sudden crisis of the family of the deceased. The right to get appointment on compassionate ground would depend upon the scheme operating in the field. G [See Umesh Kumar Nagpal v. State of Haryana & Ors. [(1994) 4 SCC 138]; and National Institute of Technology & Ors. v. Niraj Kumar Singh [2007 (2) SCALE 525]

The High Court in its judgment had noticed that the · scheme which was operative at the relevant point of time was H ~y > -+ 246 SUPREME COURT REPORTS [2008] 5 S.C.R. A that appointment on compas~;ionate ground should not be given ifthe monthly income exceeds Rs.5,00/-. Evidently, the appellant did not fulfill the said criteria. It may be true that in a given case, appointment on compassionate ground cannot be denied only because the dependent of tlhe deceased had been receiving s some amount by way of family pension.

However, it is now a well settled principle of law that appointment on compassionate ground 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 C dependents of the deceased are not deprived of the means of livelihood. It only enables the family of the deceased to get over the sudden financial crisis. {see I. G (Karrnik) & Ors. v. Prahalad Mani Tripathi [(2007) 6 SCC: 162]}. 0

In General Manager (D&PB) & Ors. v. Kunti Tiwary & Anr. [(2004) 7 SCC 271], this Court laid down the law as under: "8. This recommendation of the Indian Banks' Association was accepted in the Scheme which was finally formulated on 1-1-1998 where the same criteria for determining the financial condition of the family was laid down. It may be noted that the express language for appointment on compassionate grounds reads as follows : "Appointments in the public services are made strictly on the basis of open invitation of applications and merit. However, exceptions are made in favour of dependants of employees dying in harness and leaving their family in penury and without any means of livelihood. "