1 1 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION. CIVIL APPELLATE JURISDICTION. CIVIL APPELLATE JURISDICTION. WRIT PETITION NO.7369 OF 1999. WRIT PETITION NO.7369 OF 1999. WRIT PETITION NO.7369 OF 1999. Smt.Mumtaz Yunus Mulani ] aged 30 years Occu : NIL ] residing at Near Antarbharati ] Vidyalaya, At & Post Kurduwadi, ] Tal.Madha, Dist.Solapur. ] Petitioner. versus 1. State of Maharashtra ] ] 2. The Deputy Director of ] Vocational Education and ] Training Centre, ] Shivajinagar, Pune 411 002. ] ] 3. The Gramodyog Samiti ] C/o. Antarbharati Vidyalaya ] At & Post Kurduwadi, ] Tal. Madha, Dist.Solapur ] through its Secretary ] ] 4. The Head Master ] Antarbharati Vidyalaya, ] At & Post Kurduwadi, ] Tal.Madha, Dist.Solapur. ] ] 5. Shri Arun Uttareshwar ] Barbole ] Age about 29 years, ] Occu : Peon with ] Antarbharati Vidyalaya, ] At post Kurduwadi, ] Dist.Solapur and resident of] Post Darphal Taluka Madha ] Dist.Solapur. ] Respondents. Shri A.M.Joshi, Advocate, for the petitioner. Shri C.R.Sonawane, AGP, for Respondent No.1 & 2. Shri Surel S.Shah, Advocate, for Respondent No.3 & 4. 2 2 2 Shri Shrikant Shrimani, Advocate, for Respondent No.5. CORAM : R.M.S.KHANDEPARKAR & CORAM : R.M.S.KHANDEPARKAR & CORAM : R.M.S.KHANDEPARKAR & NARESH H. PATIL, JJ. NARESH H. PATIL, JJ. NARESH H. PATIL, JJ. DATED : 19th AUGUST 2006. DATED : 19th AUGUST 2006. DATED : 19th AUGUST 2006. ORAL JUDGMENT : [PER R.M.KHANDEPARKAR,J.] ORAL JUDGMENT : [PER R.M.KHANDEPARKAR,J.] ORAL JUDGMENT : [PER R.M.KHANDEPARKAR,J.] 1. Heard. Petitioner, by the present petition, seeks a writ of mandamus directing the respondent Nos.3 and 4 to appoint the petitioner as a class IV employee in the vocational school run by the said respondents either in place of her deceased husband or any other class IV post. 2. The facts, in brief, relevant for decision, are that the petitioner’s husband was appointed as a peon in the vocational school run by the Respondent No.3. He expired, while in service, on 16th September 1996. The petitioner thereupon filed an application for employment on compassionate ground. As there was no favourable response from the respondents, the petitioner also approached the respondent No.2, whereupon by his letter dated 1st January 1997 called upon respondent No.3 to submit its remarks on the grievance made by the petitioner. The request 3 3 3 for employment on compassionate ground was again reiterated by the petitioner under her application dated 2nd January 1997 and, in that regard also respondent No.2 by its letter dated 31st March 1997 called upon the respondent Nos.3 and 4 to submit their remarks. Under letter dated 12th March 1999, by respondent No.2 to respondent No.3, it was informed that no approval would be granted to any person appointed in place of petitioner’s deceased husband as it is obligatory for the respondent No.3 to appoint the petitioner on compassionate ground. Since in spite of the said letter, the respondent No.3 did not appoint the petitioner, the present petition came to be filed. 3. When the matter came up for hearing on admission on 2nd May 2000, while issuing notice to the respondent Nos. 3 and 4, the Division Bench comprising of Shri A.P.Shah and Dr.D.Y.Chandrachud, JJ. had directed the said respondents by way of interim order to appoint the petitioner as a peon for the academic year commencing from June 2000, and it appears accordingly the petitioner was appointed as the peon. 4 4 4 4. Drawing attention to G.R. dated 31st December 2002, the learned advocate appearing for the petitioner submitted that the government policy being to provide employment on compassionate ground, in case of death of the employee while in service and the family, being in distress, requiring financial assistance, coupled with the fact that under the said G.R. condition regarding availability of other financial resources being not made an obstruction for granting such facility, merely because the petitioner was granted family pension on the death of her husband, the same can not be construed as a bar for availing such facility to the petitioner. He further submitted that the family pension cannot be construed as an income of the family in the sense the term ‘income’ is commonly understood. According to the learned advocate appearing for the petitioner, the amount received by way of family pension cannot be construed as the income earned by surviving member of the family. 5. The learned advocate for the petitioner also sought to rely upon the decision of the Apex 5 5 5 Court in the matter of Balbir Kaur and another Balbir Kaur and another Balbir Kaur and another v/s. Steel Authority of India Ltd. and others, v/s. Steel Authority of India Ltd. and others, v/s. Steel Authority of India Ltd. and others, reported in [(2000) 6 Supreme Court Cases 493] [(2000) 6 Supreme Court Cases 493] [(2000) 6 Supreme Court Cases 493]. 6. The learned counsel appearing for the respondent on the other hand placed reliance in the decision of the Apex Court in the matter of State of Rajasthan v/s. Chandra Narain Verma, State of Rajasthan v/s. Chandra Narain Verma, State of Rajasthan v/s. Chandra Narain Verma, reported in [(1994) 2 Supreme Court Cases 752]; [(1994) 2 Supreme Court Cases 752]; [(1994) 2 Supreme Court Cases 752]; State of J&K and others v/s. Sajad Ahmed Mir, State of J&K and others v/s. Sajad Ahmed Mir, State of J&K and others v/s. Sajad Ahmed Mir, reported in [ (2006) 5 Supreme Court Cases 766]; [ (2006) 5 Supreme Court Cases 766]; [ (2006) 5 Supreme Court Cases 766]; and Punjab National Bank and others v/s. Ashwini Punjab National Bank and others v/s. Ashwini Punjab National Bank and others v/s. Ashwini Kumar Taneja, Kumar Taneja, Kumar Taneja, reported in [ (2004) 7 Supreme [ (2004) 7 Supreme [ (2004) 7 Supreme Court Cases 265] Court Cases 265] Court Cases 265] and submitted that employment on compassionate ground is not as a matter of right. Rules framed by the concerned authorities or service conditions of the employee in that regard are to be strictly followed and financial position of the dependents of deceased is also to be ascertained and considered before entertaining a claim for employment on compensate ground. In the case in hand, according to the learned advocate, the petitioner having been paid family pension, the same was duly considered and on that ground, the application of the petitioner was rejected. 6 6 6 7. The learned advocate for the petitioner also contended that there was specific direction issued to the respondents by the concerned authority under its letter dated 12th March 1999 reminding them about their obligation to provide employment to the petitioner on compassionate ground and said direction had never been challenged by the respondents and the same is binding upon the respondents and, therefore, the petitioner’s claim for employment on compensate ground could not have been denied by the respondents. In that regard, our attention is drawn to clause 33 of the letter dated 12th March 1982, by the Director of Education, Government of Maharashtra, addressed to all recognised schools. 8. The Apex Court in the case of Umesh Kumar Umesh Kumar Umesh Kumar Nagpal v/s. State of Harayana and others, Nagpal v/s. State of Harayana and others, Nagpal v/s. State of Harayana and others, reported in [ (1994) 4 Supreme Court Cases 138] [ (1994) 4 Supreme Court Cases 138] [ (1994) 4 Supreme Court Cases 138] had clearly held that the whole object of granting compassionate employment is to enable the family to tide over the sudden crisis and it is not to give a member of such family a post much less a post for post held by the deceased member of such family. It was also held that 7 7 7 mere death of an employee in harness does not entitle his family to such source of livelihood and, the authority concerned, with such a situation, has to examine the financial condition of the family of the deceased and, only on satisfaction 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. It was also held that consideration for such employment is not a vested right. 9. While reiterating the concept of compassionate appointment, the Apex Court in the matter of General Manager (D&PB) and others v/s. General Manager (D&PB) and others v/s. General Manager (D&PB) and others v/s. Kunit Tiwary and another, Kunit Tiwary and another, Kunit Tiwary and another, reported in [ (2004) 7 [ (2004) 7 [ (2004) 7 Supreme Court Cases 271] Supreme Court Cases 271] Supreme Court Cases 271] held that an appointment by way of compassionate appointment is an exception carved out of the general rule for appointment on the basis of open invitation of application and merit. This exception has to be resorted to in cases of penury where the dependents of an employee are left without any means of livelihood and that unless some source of livelihood is provided, the family would not be able to make both ends meet. 8 8 8 10. Likewise in Sajad Ahmed Mir case (supra), the Apex Court had reminded that normally an employment in the Government or other public sectors should be open to all eligible candidates who can come forward to apply and compete with each other. Considering the mandate of Article 14 of the Constitution, an appointment to the public office should be only on the basis of competative merits. This general rule should not be departed from except where compelling circumstances demand such as, death of sole breadwinner and likelihood of the family suffering because of the set-back. Once it is proved that inspite of the death of the breadwinner, the family survived and substantial period is over, there can not be necessity to say "goodbye" to the normal rule of appointment and to show favour to one at the cost of the interests of several others ignoring the mandate of Article 14 of the Constitution. 11. The Apex Court in the case of Ashwini Kumar Taneja (supra), after taking stock of its various earlier decisions, including one in Kunti Tiwary’s case, had held that one thing which 9 9 9 needs to be considered in such case is the retiral benefits which are to be taken into consideration while dealing with prayer for compassionate appointment and, in that regard, after referring to the decision of Kunti Tiwary’s case, it was clearly held that such amounts should be taken into consideration. 12. Taking into consideration the law on the point as revealed from the above referred decisions of the Apex Court, it is abundantly clear that the employment on compassionate ground is not as a matter of right, but it is in the form of facility provided to the surviving members of the family of the deceased employee to tide over the sudden crisis on account of the death of breadwinner. While considering such claim, the concerned authorities or public institutions have to take into consideration the financial status of the family and have to ascertain, whether there are source available to the family for their livelihood and, also to ascertain, whether there are earning members in the family, and the income of the family would obviously include even family pension. Indeed that is the law laid down in Kunti Tiwary’s case 10 10 10 as well as reiterated in Ashwini Kumar Taneja’s case. Besides, even the letter dated 12th April 1982 by the Director of Education, Maharashtra State, addressed to all the recognised institutions, clearly stated that while considering that application for employment on compassionate ground, the concerned institution should ascertain, whether the family has any income from immovable property as also from on account of family pension and, in case the same happens to be more than Rs.500/- it may disentitle the member of the family of such deceased employee to get employment on compassionate ground. 13. In the case in hand, it is not disputed that on the death of petitioner’s husband, she was granted family pension at about Rs.1100/- per month. It is true that the respondents have stated that apart from the said family pension the petitioner was also earning Rs.1500/- per month. However, there is absolutely no material in support of any such claim. Neverthless the fact remains that on the death of the employee - the husband of the petitioner, family pension was granted to the petitioner at the rate of 11 11 11 Rs.1,100/- per month. Obviously, it exceeded the amount of Rs.500/- which could disentitle the family member of the deceased employee to claim employment on compassionate ground. 14. As regards the contention on behalf of the petitioner that the G.R. dated 31st December 2002 nowhere makes reference to any such bar that could prevent the member of the family of the deceased employee from getting any benefit on compassionate ground on account of family pension being drawn by the member of the deceased employee and, therefore, the same cannot be the ground to deny the employment on compassionate ground to the petitioner, as rightly pointed out by the learned advocate for the respondents, the said G.R. specifically provides that it would apply to the cases arising after 1st January 2001. Besides, it specifically provides that the decisions taken prior to that should not be re-opened on the basis of G.R. dated 31st December 2002. In any case, the law as laid down by the Apex Court clearly states that before entertaining the application for employment on compassionate ground, the concerned authority has to ascertain the financial position of the 12 12 12 applicant or family of the deceased and only being satisfied that unless some source of livelihood is provided to the family, it would not survive and, that therefore, the claimant needs to be given an opportunity to join the services on compassionate ground, that the employment on compassionate ground can be offered. The G.R. dated 31st December 2002 cannot override the decision of the Apex Court. 15. It is true that under letter dated 12th March 1999 the Deputy Director had opined that as per the G.R., the petitioner ought to have been offered employment on compassionate ground and it is obligatory to do so for the respondent No.3. The fact remains that there was no provision of law under which the Deputy Director could have issued any such direction to the respondent No.3 to employ the petitioner on compassionate ground. Neither it was a matter of right for the petitioner nor the materials on record disclosed that there was an occasion for the respondent No.3 to get satisfied about the absolute need of employment to the petitioner on account of death of her husband and that in the absence of such 13 13 13 employment, the petitioner would not be able to make both the ends meet. In the absence of any statutory power to the concerned authority to give any direction for employment of the petitioner on compassionate ground, mere expression of their opinion about the alleged obligation of the respondent No.3 cannot be binding upon respondent No.3 nor the petitioner can be allowed to contend that it was obligatory for the respondent No.3 to comply with the opinion expressed by the concerned authority in the letter dated 12th March 1999. 16. The clause (3) of letter dated 12th April 1982, to which attention was drawn while contending that authorities have some statutory powers in relation to employment on compassionate ground. Plain reading of clause (11) of the said letter would disclose that it merely assures that government offices would make every efforts to provide employment on compassionate ground in case where it deserves to be granted. It does not mean that the authorities have been given any statutory power as such. Besides, clause (3) is comprised under letter dated 12th April 1982, addressed by the Director of Eduction. It does 14 14 14 not form part of any Government Resolution as such nor of any statutory provision. No executive fiat can override the law laid down by the Apex Court or the High Court. Considering the law laid down by the Apex Court on the point in issue, all the arguments raised on the basis of the clause (11) of the said letter can be of no assistance to the petitioner. 17. As regards the decision of the Apex Court in Balbir Kaur’s case, sought to be relied upon by the petitioner, specific attention was drawn to para 13 thereof wherein the Apex Court had observed that, "In our view this Family Benefit Scheme cannot in any way be equated with the benefit of compassionate appointments. The sudden jerk by some lump-sum amount being made available to the family and this is rather unfortunate but this is a reality. The feeling of security drops to zero on the death of the breadearner and insecurity thereafter reigns and it is at that juncture if some lump-sum amount is made available with a compassionate appointment, the grief-stricken family may find some solace to the mental agony and manage its affairs in the normal course of events. It is not that monetary 15 15 15 benefit would be the replacement of the breadearner, but that would undoubtedly bring some solace to the situation." These observations were with reference to the contentions sought to be raised by the advocate appearing for the respondents-company therein to the effect that "adaption of this Family Benefit Scheme was meant to provide and assured or regular income per month, while the bulk amount deposited by way of provident fund and gratuity with the management remained intact, and consequently on deposits as above with the management, the employee’s family could avail of pay up to normal date of superannuation on the footing that the employee though not actually working but notionally continued to work till the normal date of superannuation and such a scheme in fact stands at a much better footing and much more beneficial to an employee or a deceased employee." Apparently the observations were in totally different facts and situation. Besides, the decisions in Umesh Kumar Nagpal’s case and Ashwin Kumar Taneja’s case were directly on the issue relating to employment on compassionate ground. Being so, rulings in Balbir Kaur’s case are of no help to the petitioner to claim benefit of 16 16 16 employment on compassionate ground. 18. Before parting with the matter it is to be clarified that since the petitioner was accommodated by way of interim order and, accordingly she has already rendered service all this time and was accordingly paid with the salary, there should not be any action for recovery any amount already paid to her. Needless to say that payment, if any, made to Respondent No.5 consequent to his appointment, it shall be entirely responsibility of the Respondent No.3. Having said so and considering the fact that the petitioner was employed by the respondents pursuant to the the interim order, the Respondent No.3 before taking any action in relation to the employment of the petitioner, the Respondent No.3 may ascertain availability of the vacancies and if possible may accommodate the petitioner in such vacancy taking into consideration the peculiar facts and circumstances of the case within a period of twelve weeks from today and till that time to maintain status quo. The authorities also in that regard may consider whether, in the facts and circumstances of the case, the petitioner as 17 17 17 well as Respondent No.5 can be accommodated in the employment bearing in mind the requirement of institution and the peculiar facts and circumstances of the case. We make it clear that those directions are being issued in the peculiar facts and circumstances of the case and should not be construed as precedent for any other case. With these observations, the petition is dismissed. Rule is discharged with no order as to costs. [R.M.S.KHANDEPARKAR, J] [R.M.S.KHANDEPARKAR, J] [R.M.S.KHANDEPARKAR, J] [NARESH H. PATIL, J] [NARESH H. PATIL, J] [NARESH H. PATIL, J]