RAVINDRA v. GHUGE &Y.G. KHOBRAGADE, JJ.DATE
Legal Reasoning
( 1 ) 36 wp 5324.24IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 5324 OF 2024Shaikh Karim Shaikh HaroonAge: 35 years, Occu: NilR/o: Medical Quarters, Ghati area, Aurangabad (Ch. Sambhajinagar) Tq. & Dist. Aurangabad. (Ch. Sambhajinagar)...PetitionerV/s.1. The State of MaharashtraThrough Secretary, Health Department, Mantralaya Mumbai - 322. The Directorate of Medical Educationand Research Maharashtra State, Mumbai-400 001 Through its Director.3. The Dean,Government Medical College and Hospital Ch. Sambhaji Nagar (Aurangabad) Tq. & Dist. Ch. Sambhaji Nagar (Aurangabad)....Respondents...Mr. Azizoddin R. Syed, Advocate for the PetitionerMr. A.B. Girase, GP for the Respondent-State…CORAM : RAVINDRA V. GHUGE &Y.G. KHOBRAGADE, JJ.DATE :10th June, 2024ORAL JUDGMENT (Per: Ravindra V.. Ghuge, J. ):-1.Rule. Rule made returnable forthwith and heard finally with theconsent of the parties.
Legal Reasoning
( 2 ) 36 wp 5324.242.The Petitioner is equipped with a caste certificate dated05.12.2009, indicating his caste as Muslim Bhangi (7) recognized as SpecialBackward Class and he also has a validity certificate dated 15.03.2010.3.We have considered the strenuous submissions of the learnedadvocate for the Petitioner and the learned GP.4.To consider the claim of the Petitioner, we have to referred to hisfamily tree, which indicates as under:a)Shaikh Hussain is the great grandfather of the Petitioner.b)Shaikh Karim Shaikh Hussain is the grandfather of the Petitioner.c)Shaikh Haroon Shaikh Karim is the father of the Petitioner.d)The Petitioner is Shaikh Karim Shaikh Haroon.5.The contention of the Petitioner is that the GR dated 24.02.2023,contains certain provisions which allow compassionate appointment oremployment by inheritance (VAARSAA HAKKA or VAARIS or VASHILAPADDHAT) to several members of the family, notwithstanding whether thehead/bread earner of the family is in employment.6.It is the submission of the Petitioner that his great grandfatherShaikh Hussain was employed with the Health Department. His grandson ( 3 ) 36 wp 5324.24Shaikh Haroon sought compassionate appointment in place of his grandfatherShaikh Hussain on the basis of the Lad Page Committee recommendations,notwithstanding that the father of Shaikh Haroon, namely Shaikh Karim s/oShaikh Hussain was actually continuing in the employment with thedepartment. According to the Petitioner, since Shaikh Haroon (father of thePetitioner) acquired compassionate appointment on the basis of theemployment of his grandfather Shaikh Hussain, the Petitioner Shaikh Karimnow seeks compassionate appointment on the basis of the employment of hisgrandfather Shaikh Karim Shaikh Hussain. The Petitioner further adds that hisgrandfather died on 05.10.1983, which is 41 years ago. The Petitioner, who is35 years ago, was born in 1989. His father Shaikh Haroon is still inemployment and yet the Petitioner prays for compassionate employment on thebasis of the Lad Page Committee recommendation and the GR dated24.02.2023, when he is actually dependent financially on his father who ispresently employed and is drawing full salary.7.The learned GP has vehemently opposed this petition contendingthat the GR dated 24.02.2023 does not permit such type of inheritance inemployment, meaning a grandson seeking employment on his grandfatherbeing in employment 41 years ago or the father of the Petitioner having ( 4 ) 36 wp 5324.24succeeded in getting compassionate appointment on the employment of hisgrandfather, when his father was alive and continuing in employment.8.We have perused Clause 2 and 3 of the GR, which read as under:Þ2-lQkbZ dkexkjkadfjrk okjlkgDdkph rjrwn %”kkldh;@fue”kkldh;@egkuxjikfydk@uxjikfydk@uxjifj’kn@dVdeaMGs@jkT; ”kklukph egkeaMGs@jkT; ”kklukP;k Lok;Rr laLFkk@ParastatallaLFkk@vuqnkfur laLFkk] ”kkldh; :X.kky;s] oS+|dh; egkfo|ky;s] i’kqoS|dh;egkfo|ky;s b- vkLFkkiukae/khy mijksDr ¼1½ ;sFks uewn O;k[;suqlkj lQkbZdkexkjkauk R;kaP;k lsokfuo`Rrhuarj] e`R;quarj] LosPNk fuo`Rrhuarj fdaok R;kauk oS|dh;n`”V;k vik= BjfoY;kuarj lQkbZ dkexkjkps vkfFkZd uqdlku gksm u;s o R;kpsdqVqac cs?kj gksm u;s vkf.k R;kl lkekftd laj{k.k izkIr gks.;kP;k n`”Vhus] ykMlferhP;k f”kQkj”kkhuqlkj lacaf/kr lQkbZ dkexkjkaP;k tkxh R;kaP;k okjlkphfu;ekuqlkj okjlk gDdkus fu;qDrh dj.;kph dk;Zokgh djkoh-3-okjlk gDdkl ik= Bj.kkjs lQkbZ dkexkjkps okjl % &lQkbZ dkexkjkaP;k okjlk gDd izdj.kkar iq<hyiSdh ,d O;Drh okjlEg.kwu ik= Bjsy-3-1irh @iRuh3-2eqyxk @eqyxh3-3lwu @tkobZ3-4fo/kok eqyxh @cfg.k @?kVLQksfVr eqyxh @cfg.k @ifjR;DR;k [email protected] @vfookfgr lKku eqyxh @vfookfgr lKku cfg.k3-5lQkbZ deZpkjh vfookfgr vlY;kl R;kpk Þ l[[kk Hkkm @l[[kh cfg.k Þ3-6 ukr @ukrw Þ9.Clause 2 clearly indicates that if an employee working as a ‘SafaiKamgar’ retires or dies in employment or opts for voluntary retirement on the ( 5 ) 36 wp 5324.24basis of a medical infirmity, his family should not be thrown on the streets andto provide immediate succor to the family who has lost the bread earner, aspouse or son / daughter or daughter in law / son in law or widowed daughter,divorced daughter, sister, unmarried adult daughter or unmarried adult sistercan be an eligible candidate. Grand children are also eligible.10.It cannot be ignored that under Clause 3, only one of the eligiblecandidates can be appointed as a compassionate appointee and such onecandidate could be a grandson / granddaughter or any of those mentioned inthe above re-produced clauses.11.The learned advocate for the Petitioner relies upon Clause 5.8 tocontend that his great grandfather was in employment and, hence, his fatherrightly acquired compassionate appointment on the Lad Page Committeerecommendations in relation to the employment of such great grandfather. Itis further contended that though the Petitioner’s father acquired suchemployment on the basis of his grandfather’s appointment and though thePetitioner’s father is still in employment, the Petitioner is entitled for suchcompassionate appointment / appointment on Lad Page Committeerecommendations on the basis of his grandfather's employment as the latterdied on 05.10.1983, which is 41 years ago. In short, he contends that clause5.8 permits his father to seek employment in place of his great grandfather, on ( 6 ) 36 wp 5324.24the one hand and on the other hand, the Petitioner can claim compassionateemployment on the basis of his grandfather’s employment, though his father istoday in employment and is the bread earner of the family. It is undisputedthat the Petitioner is a biological child of Shaikh Haroon who is in employment,he was dependent on Shaikh Haroon and never on his grandfather, who passedaway on 05.10.1983, almost six years prior to the Petitioner’s birth.12.For ready reference, we are re-producing Clause 5.8 as under: Þ5-8lQkbZ dkexkjkP;k dqVqackrhy lsosr vl.kk&;k okjlkaP;kfu;qDrhckcr %& lQkbZ dkexkjkP;k dqVqackrhy irh@iRuh fdaok eqyxk @eqyxhb- O;Drh vFkok vU; O;Drh ‘kkldh; @fue’kkldh; LFkkfud LojkT;laLFksP;k@vuqnkfur laLFksP;k lsosr vlY;kl] lacaf/kr lQkbZ dkexkjkP;k okjlkgDdkP;k fu;ekl ck/kk ;s.kkj ukgh- Þ 13.The learned GP submits that Clause 5.8 has to be read in the lightof Clause 2, meaning thereby that the person seeking such employment shouldbe a dependent of the deceased employee or the employee who hassuperannuated or has sought voluntary retirement on medical reasons, willhave to nominate a close relative within the permissible relations prescribed inClause 3. Based on such nomination, the employment could be sought. Hehastens to clarify that this would not mean that the father of the Petitioner is inemployment and the Petitioner seeks employment on the basis of thegrandfather having passed away. ( 7 ) 36 wp 5324.2414.We do not find that the claim of the Petitioner is well placed in thelight of the fact that 5.8 clearly provides that even if the close relative of a‘Safai Kamgar’ is in Government or Semi Government Authorities or employedwith the local Authorities, it would not be an impediment for a candidate toseek employment on the basis of the Warsaa Hakka (Right of Inheritance)which is also known as the Vashila Paddhat (Special Recommendation) in theState of Maharashtra.15.The Petitioner’s father is a ‘Safai Kamgar’ and is still inemployment. His grandfather was also a ‘Safai Kamgar’ and so was his greatgrandfather. According to the Petitioner, though his father is in employment asa ‘Safai Kamgar’, based on the Lad Page Committee recommendations, there isno impediment to the Petitioner in claiming such employment in view of thefact that his grandfather was in employment on 05.10.1983. We are fortified inour conclusion that the Petitioner cannot claim such employment, by thejudgment of the Hon’ble Supreme Court in Ahmednagar Mahanagarpalika V/s.Ahmednagar Mahanagarpalika Kamgar Union; 2022 III CLR 859. The Hon’bleSupreme Court has held as under:“5. We have heard learned counsel for the respective parties at length.At the outset, it is required to be noted that in the present case, theIndustrial Court has directed the Mahanagar Palika/Municipal Corporation togive appointment to the heirs of the employees on theirsuperannuation/retirement as per judgment and award passed in Reference ITNo. 51 of 1979. However, it is required to be noted that the said judgment ( 8 ) 36 wp 5324.24and award was passed in the year 1981, at the time when the MunicipalCouncil was in existence. That thereafter in the year 2003, the MunicipalCouncil has been converted to Municipal Corporation/Mahanagar Palika andall the employees under Mahanagar Palika/Municipal Corporation aregoverned by the scheme/rules & regulations framed by the StateGovernment, which does not provide for any appointment on compassionategrounds or the appointment to the heirs of the employees on theirsuperannuation/retirement.6. Even otherwise, it is required to be noted that in Reference (IT) No.2/1993, which was at the instance of Mahanagar Palika on the notice ofchange in respect of demand of employment to the heirs of the employee asper Reference (IT) No. 51 of 1979, the Industrial Court vide judgment andaward dated 21.02.2005 directed the appointment on compassionate groundsto the heirs of the deceased employees only. It was specifically observed bythe Industrial Court that at the time of passing earlier award in Reference ITNo. 51 of 1979, i.e., in the year 1979 the demand to provide the employmentto the legal heirs of the employees on their retirement/superannuation wasreasonable, however, in the present situation the said demand does not appearto be good and reasonable. The Industrial Court further observed that,needless to say, now-a-days the unemployment problem is a very majorproblem and in spite of high qualifications the qualified persons are notgetting jobs and they remain unemployed. While modifying the demand anddirecting to provide appointment on compassionate grounds to the legal heirsof the employees (on the death of the concerned employee), in judgment andaward dated 21.02.2005 in Reference IT No. 2/1993, it was observed by theIndustrial Court as under:“It seems from the oral submissions of the parties that, at the time of passingearlier award in Ref. (IT) No. 51/1979 i.e., in the year 1979 the demand forproviding the employment to the legal heir of employee was reasonablehowever in present situation the said demand does not appears to be goodand reasonable. Needless to say, that nowadays the unemployment problemsis very major. In spite of high qualifications, the qualified persons are notgetting job and they are unemployed. In view of this demand there is noscope for qualified unemployed person to get the job in the establishment ofthe party no. 1, as the legal heirs of the employees will get the job in place ofthe employee working in the establishment of the party no. 1. Mr. Patillearned advocate for the party no. 1 rightly submitted that on the basis of thisdemand the legal heirs are claiming employment on attaining the majorityand if the legal heir is minor at the time of superannuation and that too after ( 9 ) 36 wp 5324.2410 years also under such circumstances in my opinion also the demand ofproviding employment to the legal heirs does not appears to be proper.It has sufficiently come on record through the oral evidence of the partiesthat as per this demand the employment has been claimed as of right andthere is no scope for selection of proper candidate, even the guidelines of thegovernment regarding Reservation could not be followed. It is pertinent tonote here that, as per the government policy certain post in the establishmentare reserved for back ward classes and on those post- employment is to begiven to the candidate from reserve category however as there is no scope foremployment to others, therefore, it is very difficult for the candidates fromreserve category to get employment in the establishment of the party no. 1.It has also come on record that, as per this demand the employment is beingclaimed for distant relative on the basis of adoption. True it is that theadoption can be made as per law and after adoption the adopted childbecause legal heir of that person however it seems from the various copies ofdocuments placed before the Court that employment has been claimed fornephew on the basis of affidavit saying that the nephew is taking care of thatemployee. Similarly, in another matter the employment is sought for adoptedson by application dated 02.05.1997 and deed of adoption has been executedon 30.04.1997.From these documents it can be said positively that the demand or providingemployment to the legal heirs of the employees has been misused.Furthermore, nothing has been placed on record on behalf of the party no. 2union that such practice is being continued in any other establishment. Thewitness of the party no. 2 union specifically asked about the however hecould not brought any documentary evidence. In my opinion also even though this demand was reasonable in 1979however the same is certainly not reasonable and justified during presentdays and in the light of misuse of the demand it can be safely said that theparty no. 1 is justified in seeking change in the demand in respect ofproviding the employment to the legal heirs of the employees onsuperannuation, invalidity or resignation, be now I am inclined to modify thedemand and directing the party no. 1 to provide (1) employment to the legalheirs of the employees of Class-IV category working in health departmentonly (2) to provide the employment to the legal heirs of all categories i.e.Class-I category to Class-IV category on compassionate ground as pergovernment Resolutions and circulars at par with governments employees.” In view of the above also, thereafter it was not open for the IndustrialCourt and/or even the High Court to direct the Mahanagar Palika/Municipal ( 10 ) 36 wp 5324.24Corporation to provide appointment to the heirs of the employees on theirretirement/superannuation, relying upon the judgment and award passed bythe Industrial Court in Reference IT No. 51 of 1979.7. After the conversion of the Municipal Council to MunicipalCorporation/Mahanagar Palika, the employees of the MahanagarPalika/Municipal Corporation shall be governed by the scheme framed by theState Government and at par with the government employees. As per therecent decision of this Court in the case of Bheemesh alias Bheemappa(supra), the appointment on compassionate ground shall be as per themodified scheme. Therefore, the employees of the MahanagarPalika/Municipal Corporation shall be governed by the scheme of the StateGovernment at par with the government employees, which does not providefor appointment on compassionate grounds to the heirs of the employees ontheir retirement and/or superannuation.8. Even otherwise, such an appointment to the heirs of the employees ontheir retirement and/or superannuation shall be contrary to the object andpurpose of appointment on compassionate grounds and is hit by Article 14 ofthe Constitution of India. As observed and held by this Court in a catena ofdecisions, compassionate appointment shall always be treated as anexception to the normal method of recruitment. The appointment oncompassionate grounds is provided upon the death of an employee in harnesswithout any kind of security whatsoever. The appointment on compassionategrounds is not automatic and shall be subject to the strict scrutiny of variousparameters including the financial position of the family, the economicdependence of the family upon the deceased employee and the avocation ofthe other members of the family. No one can claim to have a vested right forappointment on compassionate grounds. Therefore, appointment oncompassionate grounds cannot be extended to the heirs of the employees ontheir superannuation and/or retirement. If such an appointment is permitted,in that case, outsiders shall never get an appointment and only the heirs of theemployees on their superannuation and/or retirement shall get anappointment and those who are the outsiders shall never get an opportunity toget an appointment though they may be more meritorious and/or welleducated and/or more qualified. Therefore, the submission on behalf of therespondent that the appointment is not on compassionate grounds but thesame be called as varas hakka cannot be accepted. Even if the same be calledas varas hakka the same is not supported by any scheme and even the samealso can be said to be violative of Article 14 as well as Article 15 of theConstitution of India.”
Decision
( 11 ) 36 wp 5324.2416.In view of the above, we do not find that the refusal by theGovernment Medical College, Chhatrapati Sambhajinagar to grant employmentto the Petitioner, vide the impugned order dated 14.03.2024, could be termedas being erroneous. This Writ Petition is therefore dismissed. Rule isdischarged.17.At this juncture, the learned advocate for the Petitioner submitsthat if the father of the Petitioner retires or has to leave employment in anyunfortunate situation, the right of the Petitioner to seek employment on thebasis of Warsaa Hakka / Vashila Paddhat, as compassionate appointment, thedismissal of this Petition should not be an impediment. We make it clear thatthis order would not be an impediment to the Petitioner to seek enforcement ofany right if it flows to him through his father. [Y.G. KHOBRAGADE, J.][RAVINDRA V. GHUGE, J.]mub