High Court · 2024
Facts
(1) wp-9504-2021.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.9504 OF 2021Fariha Tazeen Md. Abdul Salam, Age-28 years, Occu. Nil, R/o. h no. 1-8-258, Labour Colony, Near Panchasheel School, Post- Shivaji Nagar, Nanded District- Nanded..PetitionerVersus1.Momin Education Society,Sayyadan, Kalal Lane, Nanded, Tq. & Dist. Nanded. Through its Secretary2.Islahul Amal Girls High School,Sayyadan, Kalal Lane, NandedTq. & Dist. Nanded, Through its Head Master.3.Education Officer (Secondary,)Zilla Parishad, Nanded.4.State of Maharashtra,Through School Education and Sports Department, Mantralaya, Mumbai-32...Respondents …Mr. S. V. Dixit, Advocate for the Petitioner.Mr. V. J. Dhage, Advocate for Respondent Nos.1 and 2.Mr. S. K. Shirse, AGP for Respondent Nos.3 and 4. … CORAM : SMT. VIBHA KANKANWADI AND S. G. CHAPALGAONKAR, JJ. DATED : 16th APRIL 2024.JUDGMENT (Per: S. G. Chapalgaonkar, J.):- 1.Rule. Rule made returnable forthwith. With the consentof the parties, matter is taken up for final hearing at the stage ofadmission. (2) wp-9504-2021.odt2.The petitioner approaches this Court under Article 226 ofthe Constitution of India seeking issuance of Writ of Mandamus ordirection against respondent nos.1 and 2-Educational Institution toconsider her claim for compassionate appointment on the post ofAssistant Teacher.3.The petitioner contends that her mother Rubina FirdosMd. Suleman was employed as Assistant Teacher with respondentno.2-School. She died on 03.10.2020 while in service. Thepetitioner who holds qualification as B.Sc., B.Ed. is eligible to beappointed as Assistant Teacher. Therefore, on 18.03.2021, sheapplied to respondent nos.2 and 3 seeking appointment oncompassionate ground. The application is supported by noobjection from other relatives. However, respondent nos.2 and 3deliberately avoided to appoint her without justifiable cause. Thepetitioner further contends that in view of the policy of the StateGovernment, promulgated under Government Resolution dated31.12.2002, she is entitled and eligible for being appointed asAssistant Teacher on compassionate ground. Inaction on the partof the respondents made her to approach this Court under Article226 of the Constitution of India seeking appropriate directions.4.In response to the notice of this petition, respondentnos.1 and 2 have appeared before this Court and submittedaffidavit-in-reply. They oppose the prayers in the petition on theground that the petitioner is not at all eligible for compassionateappointment in terms of policy underlined in the Governmentdecision. They have raised following objections:(i)The petitioner’s mother Rubina Firdos Md. Suleman wasaged about 55 years and 4 months at the time of her death.(ii)The petitioner was not dependent on the deceased mother.
Legal Reasoning
(6) wp-9504-2021.odtbased on the premises that the applicant was dependent onthe deceased employee. Strictly, such a claim cannot beupheld on the touchstone of Article 14 or 16 of theConstitution of India. However, such claim is considered asreasonable and permissible on the basis of sudden crisisoccurring in the family of such employee who has servedthe State and dies while in service. Appointment oncompassionate ground cannot be claimed as a matter ofright. As a rule public service appointment should be madestrictly on the basis of open invitation of applications andmerit. The appointment on compassionate ground is notanother source of recruitment but merely an exception tothe aforesaid requirement taking into consideration the factof the death of the employee while in service leaving hisfamily without any means of livelihood. In such cases theobject is to enable the family to get over sudden financialcrisis and not to confer a status on the family. Thus,applicant cannot claim appointment in a particularclass/group of post. Appointments on compassionateground have to be made in accordance with the rules,regulations or administrative instructions taking intoconsideration the financial condition of the family of thedeceased.”10.Similarly, in case of Ahmednagar Mahanagar PalikaVs. Ahmednagar Mahanagar Palika Kamgar Union2, theSupreme Court observed thus:“As observed and held by this Court in a catena of decisions,compassionate appointment shall always be treated as anexception to the normal method of recruitment. Theappointment on compassionate grounds is provided uponthe death of an employee in harness without any kind ofsecurity whatsoever. The appointment on compassionategrounds is not automatic and shall be subject to the strictscrutiny of various parameters including the financialposition of the family, the economic dependence of the familyupon the deceased employee and the avocation of the othermembers of the family. No one can claim to have a vestedright for appointment on compassionate grounds.”11.Bearing in mind the aforesaid principles of law espousedby the Supreme Court, if factual aspects emerging from thepleadings and material placed before us is considered, it is evident2(2022) 10 SCC 172. (7) wp-9504-2021.odtthat the petition suffers from suppression of material facts.Firstly, petitioner has not disclosed that she is a married daughterof the deceased. Secondly, she has not disclosed that her father isalso employed as Headmaster in the school receiving grant-in-aid.Both the aforesaid facts are surfaced in the affidavit-in-reply filedon behalf of respondent nos.1 and 2. Pertinently, the petitioner didnot traverse contents of the affidavit-in-reply. The respondentshave further brought on record that the petitioner’s husband is aqualified person and serving at “Freedom Ford” as Hardware andNetworking Manager. The petitioner’s father has been promotedas Headmaster on 01.02.2018 and he was continued in service onthat post. Upon death of the petitioner’s mother, the familyreceived Rs.14 lakhs towards pensionary benefits and receivingpension of Rs.26,000/- per month. In this background, particularlywhen the petitioner is a married daughter, it is difficult to believethat she was dependent on the income of her mother at relevanttime. 12.The scheme under Government Resolution dated31.12.2002, in unequivocal terms, stipulates that in case relative ofdeceased employee is in service, the employer or appointingauthority is under obligation to enquire into financial position ofthe family before permitting compassionate appointment of familymember. The respondent nos.1 and 2 have placed on record thevoluminous evidence depicting sound financial condition of thepetitioner’s family. It is not the contention of the petitioner thather father was not taking care of the family members or herhusband is non-earning or incapable of earning. Therefore, in lightof the specific stipulation contained in Clause 7(B) of theRegulation, it would be difficult to hold that the petitioner was (8) wp-9504-2021.odtdependent and consequently entitled for compassionateappointment owing to the death in harness of her mother. 13.In view of aforesaid observations, we find that thepresent petition suffers from suppression of material facts,therefore, petitioner is not entitled for any discretionary reliefs inexercise of extraordinary jurisdiction of this Court. Even on meritsof the case, sound financial condition of the petitioner’s family dis-entitles her to seek Writ of Mandamus against the respondents toissue compassionate appointment in light of the specific stipulationunder the scheme.14.In the aforesaid circumstances, no case is made out forissuance of Writ. Hence, Writ Petition stands dismissed.15.Rule is discharged.(S. G. CHAPALGAONKAR) (SMT. VIBHA KANKANWADI) JUDGE JUDGEDevendra/April-2024
Arguments
(3) wp-9504-2021.odt(iii)The petitioner is married daughter and dependent on herhusband namely Md. Fasihuddin Faruqui, who is servingas Hardware and Networking Manager in Freedom Ford.(iv)The petitioner’s father is Headmaster in grant-in-aidschool by name Baitul-Uloom High School, Nanded.(v)After death of the petitioner’s mother, the pensionarybenefits of around Rs.14 lakhs sanctioned and disbursed tothe family.(vi)The family members are receiving pension at the rate ofRs.26,000/- per month.(vii)The petitioner’s mother had received GPF amount ofRs.5,94,510/-.(viii)The petitioner’s mother had more than three children andthird child is born after 31.12.2001.(ix)The economical condition of the petitioner is sound. Thereis no pressing need to extend compassionate appointment,which is rule of exception and not the right.5.Mr. Dixit, learned Advocate appearing for the petitionervehemently submits that the State of Maharashtra laid downpolicy under Government Resolution dated 31.12.2002, in itsSchool Education Department, providing for compassionateappointment of the dependents of the employee, died in harness.He would submit that in case of death Class III or Class IVemployee, the family members as specified in Clause 3(A) of theGovernment Resolution are entitled to seek compassionateappointment. He would refer to the Corrigendum to theGovernment Resolution to point out that even the marrieddaughter of the deceased employee is made eligible for the (4) wp-9504-2021.odtcompassionate appointment. The petitioner submitted herapplication for such an appointment. She possesses requisitequalification for the post of Assistant Teacher. It is not disputedthat such post is available on the establishment of the school. Assuch, there is no legal impediment to appoint the petitioner.However, respondent nos.1 and 2 deliberately sitting on theapplication. No response in furtherance of the pendingapplications is made by them till this date. The petitioner hasapprised respondent no.3-Education Officer regarding her pendingclaim with respondent nos.1 and 2. However, no steps are taken byhim till this date. Therefore, he urges to issue appropriate Writ ordirections against respondent nos.1 to 3 to appoint the petitioner intune with the policy of the Government.6.Mr. Dhage, learned Advocate appearing for respondentnos.1 and 2 contends that although the petitioner made applicationseeking appointment on compassionate ground, she is not at allentitled for such appointment for the reasons as stated in theaffidavit-in-reply. The Management has time and again apprisedpetitioner that her application is not compliant with thestipulations of the scheme for compassionate appointment. Hewould further submit that the compassionate appointment is anexception to the general rule. There is no vested right withpetitioner to seek compassionate appointment. The employer isunder obligation to look into the economical status of the familyand being satisfied of the dire need, the compassionateappointment can be extended. In the present case, the materialplaced alongwith reply demonstrate that the petitioner hasdeliberately suppressed the facts depicting her sound economicalcondition, so also fact that she is married daughter of the deceasedemployee. (5) wp-9504-2021.odt7.We have considered the submission advanced on behalfof the Advocates appearing for the respective parties. Thepetitioner’s claim is based on the scheme promulgated underGovernment Resolution dated 31.12.2002 that provides thecompassionate appointment to family member of the employee,died in harness. Annexure-A to the Government Resolutionprovides for Rules of appointment. Clause 3(A)(1) provides for thelist of relatives entitled for compassionate appointment. Aspointed out by Mr. Dixit, learned Advocate, by way of Corrigendumin the original scheme, the married daughter is also included in thelist of eligible relatives of the deceased. 8.We find that controversy raised in present matterrevolves around Clause 7(B) that states as under:“७. ब) एखादयाकुटुंबातमृतकम(cid:15)चाऱ्याचेनातेवाईकपूव(cid:24)चसेवेतअसल्यासव तोनातेवाईकत्यांच्याकुटुंबातीलअन्यसदस्यांनाआधारदेतनसल्यासअशा प्रकरणातत्याकुटुंबाचीआर्थि*कपरिरस्थिस्*तीहलाखीचीआहेकिंकवाकसेहे निनयुक्तीअधिधकाऱ्यानेअत्याधिधकदक्षताघेवूनठरवावेवत्यांचीखात्री पटल्यानंतरचअनुकंपातत्वावरीलनिनयुक्तीच्यायोजनेचालाभदेण्यातयावा.”ENGLISH TRANSLATION“7B. If in a family, the relatives of the deceased employee arealready in service and the said relative is not supporting othermembers of their family, in such a case, the financial condition ofthat family is weak or not, the appointing officer should decidethis with utmost care and after being convinced, the benefit of thescheme of appointment on compassionate ground should begiven.”9.In light of the aforesaid clause of the scheme, it isapposite to refer to certain observations of the Supreme Court inthe matter of compassionate appointment. In case of Union ofIndia and Anr. Vs. Shashank Goswami & Anr.1, the SupremeCourt observed as under:“There can be no quarrel to the settled legal propositionthat the claim for appointment on compassionate ground is12012 AIR SCW 3257.