1 ASWP-3941-2011 srk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3941 OF 2010 1. Shri Vasant Jinnappa Chougule, Age 63 years, Occ: Agriculture, R/o. Bhose, Tal. Miraj, Dist. Sangli. 2. Shri Ramesh Shankar Bhakare, Age: Adult, Occ: Agriculture, R/o. Budhgaon, Tal. Miraj, Dist. Sangli. ...Petitioners Versus 1. The State of Maharashtra Through the Secretary, School Education Department, Mantralaya, Mumbai 400 032. 2. The Education Officer (Secondary), Zilla Parishad Sangli. 3. Hind Education Society, Miraj, Tal. Miraj, Dist. Sangli, Through its Chairman / Secretary 4. New Engllish School, Narwad, Tal Miraj, Dist. Sangli, Through its Head Master. 2 ASWP-3941-2011 5. Shri Rahul Hindurao Salunkhe, Age: Adult, Occ: Service as an Assistant Teacher in New English School at Narwad, Tal. Miraj, Dist. Sangli. 6. The Deputy Director of Education, Kolhapur Region, Kolhapur, Having office at Somwarpeth, Hatti Mahal Road, Kolhapur. ...Respondents Mr.N.V.Bandiwadekar for petitioners. Ms.P.S.Cardozo, AGP for Resp.nos.1, 2 and 6. Mr.R.S.Apte, Senior Advocate with Mr.M.S.Topkar for respondent nos.3 and 4. Mr.A.A.Kumbhakoni with Mr.Sandesh Patil for respondent no.5. CORAM: B. H. MARLAPALLE & SMT. NISHITA MHATRE, JJ. September 26, 2011. ORAL JUDGMENT (PER B.H. MARLAPALLE,J.) 1. Heard Mr.Bandiwadekar, the learned counsel for the petitioners. Rule. Respondents waive service. With the consent of the parties petition has been finally heard. 3 ASWP-3941-2011 2. The petitioners have challenged the appointment of respondent no. 5 as Shikshan Sevak (Secondary) made by the Respondent no.3 for its school viz. the respondent no.4 w.e.f. 3/8/2006, on compassionate ground. Shri Hindurao Mahadeo Salunke, father of the respondent no.5 was an Assistant Teacher with the respondent no.4 – school and he died on 10/7/2000. Smt. Mangala Hindurao Salunke, mother of the respondent no.5 was also working as an Assistant Teacher with the very same school. The respondent no.5 did not apply for appointment on compassionate ground as a Shikshan Sevak or in any other post till his mother retired on reaching the age of superannuation on 31/5/2005. It is alleged that for the first time he submitted an application for appointment as a Shikshan Sevak on compassionate ground to respondent no.3 on 1/6/2005 and during that period he was already working as an Assistant Teacher at Nav Krishna Valley School run by Suraj Foundation from 18/1/2003 to 30/4/2006. On 2/8/2006 he was issued an appointment order as Shikshan Sevak and for a period of three years i.e. from 3/8/2006 to 2/8/2009 and the appointment order was signed by his mother in her capacity as a trustee of the respondent no.3 – society. It is the case of the petitioners that the respondent no.5 could not have been considered for being appointed on compassionate ground as his mother was already working as 4 ASWP-3941-2011 Assistant Teacher when his father died and he himself was working with some other school i.e. Nav Krishna Valley School. It is further alleged that the appointment of respondent no.5 has been made by his mother and by not following any due process as prescribed under the Rules. The appointment on compassionate ground is illegal and void ab initio and is, therefore, required to be quashed and set aside, urged Mr.Bandiwadekar, the learned counsel for the petitioner. 3. Affidavit in reply has been filed by the management as well as respondent no.5. The management has filed additional affidavit so as to oppose the petition. As per the management an advertisement was released in the local newspapers calling for application for the post of Shikshan Sevaks in different subjects on 19th July 2006. Along with others the respondent no.5 also submitted his application and the selection committee interviewed all the candidates who had applied for the post of Shikshan Sevak and as a result of the said selection process the respondent no.5 was selected and was issued the appointment order dated 2/8/2006. The said appointment has been approved by the Education Officer on 16/3/2007 and by now he has already been confirmed as an Assistant Teacher and the appointment made on compassionate ground 5 ASWP-3941-2011 does not suffer from any illegalities and, therefore, the petition is required to be dismissed, as per the management. Shri Bhaskar Babar, Deputy Education Officer, Zilla Parishad, Sangli has filed affidavit in reply and supported the management as well respondent no.5. It is stated that as on 1/6/2005 none from the family of the respondent no.5 was in employment with the respondent no.3 – society and as per the GR dated 26th October 1994 the appointment of respondent no.5 made on compassionate ground is legal and justified. It has been further stated that respondent no.5 might have been appointed as a part time teacher with Nav Krishna Valley school on an honorarium of Rs.2000/- per month and the said employment would not come in his way for being considered for appointment on compassionate ground i.e. on account of his father’s demise, while in service. It has been pointed out that as per the GR dated 26th October 1994 the application for appointment on compassionate ground was required to be made within five years from the date of death of the concerned employee i.e. Shri Hindurao Salunke and respondent no. 5 made an application within the said prescribed time limit. His mother had retired on 31st May 2005 and, therefore, as on 1/6/2005 when he submitted the application for appointment on compassionate ground no other member of his family was employed and the appointment made 6 ASWP-3941-2011 with effect from 9/8/2006 is valid, legal and justified. 4. The respondent no.5 in his separate affidavit in reply has alleged that this petition is a camouflage to hide the real intention of the petitioner no.2 who was working with the respondent – trust. It is further alleged that the petition has been filed only to rake private vengeance against respondent no.5 and his mother and on the date of appointment with the respondent-school from 2/8/2006 he was not in employment in any other school and he submitted the application within the prescribed limit of five years, his application was required to be considered for compassionate appointment and in the regular selection process he was selected as Shikshan Sevak and appointed on compassionate ground, as such. It is also contended that respondent no.6 passed his order on 23/1/2008 considering the approval order and, therefore, his appointment as Shikshan Sevak has attained finality as the said order dated 23/1/2008 has not been challenged. The respondent no.5 further claims that he is duly qualified with B.A., B.Ed. degrees and in response to the advertisement dated 19/7/2006 he had submitted a fresh application, he was interviewed by the Selection Committee and he came to be selected on compassionate ground. 7 ASWP-3941-2011 5. It is not disputed by any of the respondents that respondent no.5 has been appointed as as a Shikshan Sevak on compassionate ground as per the appointment order dated 2/8/2006 signed by his mother as a trustee. The Assistant Charity Commissioner at Sangli passed an order on 31/5/2008 in Enquiry Application No.460 of 1999 filed under Section 50A(1) of the Bombay Public Trusts Act, 1950 and while disposing off the said application framed the scheme for the respondent no.3 – trust. The Assistant Charity Commissioner appointed nine persons in the first board of trustees of the said trust and the petitioner no.1 is one of these nine trustees. The mother of the respondent no.5 is the President of the board of trustees as appointed by the Assistant Charity Commissioner. Respondent no.5 is duly qualified for being appointed as a Shikshan Sevak and he was working as an Assistant Teacher with Nav Krishna Valley School at MIDC Kupwad, Dist Sangli from 18th January 2003 to 30th April 2006 (as per the letter dated 5/6/2007 issued by the said school). The only issue that we are required to consider is whether the appointment of respondent no.5 as Shikshan Sevak on compassionate ground made with effect from 2/8/2006 is sustainable. 8 ASWP-3941-2011 6. Mr.Apte, the learned Senior Counsel appearing for the management submitted that the petition suffers from inordinate delays and latches and on that ground alone it is required to be dismissed. Mr.Apte also questioned the locus standi of the petitioners to file the petition inasmuch as none of them was a candidate who had submitted an application in response to the advertisement released on 19/7/2006 and, therefore, not an aggrieved party. In support of these arguments Mr.Apte relied upon the decision in the case of Dr. M.S. Mudhol Vs. S.D. Halegkar [(1993) 3 SCC 591]. 7. So far as the appointment on compassionate ground is concerned the law is well settled by a catena of decision of the Supreme Court. In the case of Umesh Kumar Nagpal Vs. State of Haryana and ors [(1994) 4 SCC 138], the Supreme Court stated thus, on the appointment in public service on compassionate ground: “2. The question relates to the considerations which should guide while giving appointment in public services on compassionate ground. It appears that there has been a good deal of obfuscation on the issue. As a rule, appointments in the public services 9 ASWP-3941-2011 should be made strictly on the basis of open invitation of applications and merit. No other mode of appointment nor any other consideration is permissible. Neither the Governments nor the public authorities are at liberty to follow any other procedure or relax the qualifications laid down by the rules for the post. However, to this general rule which is to be followed strictly in every case, there are some exceptions carved out in the interests of justice and to meet certain contingencies. One such exception is in favour of the dependants of an employee dying in harness and leaving his family in penury and without any means of livelihood. In such cases, out of pure humanitarian consideration taking into consideration the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made in the rules to provide gainful employment to one of the dependants of the deceased who may be eligible for such employment. 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 a member of such family a post much less a post for post held by the deceased. What is further, mere death of an employee in harness 10 ASWP-3941-2011 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. The posts in Class- Ill and IV are the lowest posts in non-manual and manual categories and hence they alone can be offered on compassionate grounds, the object being to relieve the family, of the financial destitution and to help it get over the emergency. The provision of employment in such lowest posts by making an exception to the rule is justifiable and valid since it is not discriminatory. The favourable treatment given to such dependant of the deceased employee in such posts has a rational nexus with the object sought to be achieved, viz., relief against destitution. No other posts are expected or required to be given by the public authorities for the purpose. It must be remembered in this connection that as against the destitute family of the deceased there are millions of other families which are equally, if not more destitute. The exception to the rule made in favour of the family 11 ASWP-3941-2011 of the deceased employee is in consideration of the services rendered by him and the legitimate expectations, and the change in the status and affairs, of the family engendered by the erstwhile employment which are suddenly upturned.” More recently in the case of Bhavani Prasad Sonkar Vs. Union of India and ors [(2011) 4 SCC 209] the Supreme Court referred to a number of its earlier decisions on appointment on compassionate ground and reiterated the legal position as under: “(i) Compassionate employment cannot be made in the absence of rules or regulations issued by the Government or a public authority. The request is to be considered strictly in accordance with the governing scheme, and no discretion as such is left with any authority to make compassionate appointment dehors the scheme. (ii) An application for compassionate employment must be preferred without undue delay and has to be considered within a reasonable period of time. 12 ASWP-3941-2011 (iii) An appointment on compassionate ground is to meet the sudden crisis occurring in the family on account of the death or medical invalidation of the bread winner while in service. Therefore, compassionate employment cannot be granted as a matter of course by way of largesse irrespective of the financial condition of the deceased/incapacitated employee's family at the time of his death or incapacity, as the case may be. (iv) Compassionate employment is permissible only to one of the dependants of the deceased/incapacitated employee, viz. parents, spouse, son or daughter and not to all relatives, and such appointments should be only to the lowest category that is Class III and IV posts.” 8. In the instant case Mr.Apte placed before us the record and proceedings of the interviews held on 30/7/2006 in response to the advertisement released on 19/7/2006, for post of Shikshan Sevaks etc. The record shows that a number of candidates were interviewed and only 4-5 were selected including the respondent no.5 but his appointment was made on compassionate ground. The advertisement specifically stated 13 ASWP-3941-2011 that all the posts of Shikshan Sevaks were for some or the other reserved category and the respondent no.5 does not belong to any such category. The advertisement also stated that preference would be given to a candidate seeking employment on compassionate ground. However, this clause would not come to the rescue of the respondent no.5 inasmuch as such a clause has to be read in the context of the posts to be filled in. If all the posts were to be filled from amongst the reserved category candidates, a candidate from such a category seeking employment on compassionate ground would be certainly given preference. Giving preference will not be applicable to a candidate who belongs to the open category like the respondent no.5, in the instant case. 9. As far as the grounds for delay / latches and locus standi are concerned, it has to be noted that on 16/4/2007 one of the petitioners had filed a complaint with the Education Officer after the appointment was approved by the Education Officer vide his order dated 16/3/2007. On 21/8/2007 the Education Officer had stayed the approval order. However, the Deputy Director of Education intervened by his order dated 18/1/2008. One of the petitioners has been appointed in the board of trustees pursuant to the scheme framed by the Assistant Charity 14 ASWP-3941-2011 Commissioner vide his order dated 31/5/2008. On 14/12/2009 the Head Master of respondent no.4 – school informed the petitioner that there was no record available regarding the approval granted. On 16/1/2010 the Deputy Education (Secondary), Zilla Parishad, Sangli informed the petitioner that the stay granted to the approval of appointment of respondent no.5 on 21/8/2007 was vacated. We, therefore, do not find any substance in the contentions that the petitioners have approached this Court belatedly or the petition suffered from latches. At the same time one of the petitioners has been a trustee of the respondent no.3 – trust and even if none of the petitioners was a candidate during the interview held on 30/7/2006, it cannot be accepted that the petitioner have no locus standi to challenge any illegality committed by the respondent no.3 – trust. 10. In the instant case there is something more which goes to the root of the matter and that is the concept of appointment on compassionate ground. Shri Hindurao Salunke died on 10/7/2005 and at this time his wife Smt. Mangala Salunke was already working as an Assistant Teacher with the respondent no.4 – school. Hence no other family member could claim appointment on compassionate ground on the demise of Shri 15 ASWP-3941-2011 Hindurao Salunke. Smt. Mangala Salunke retired on 31/5/2005 and this retirement could not give rise to a demand for appointment on compassionate ground, which is available only in case of demise while in service or physical incapacitation during employment. In addition, respondent no.5 was already working as an Assistant Teacher or Shikshan Sevak with some other school during the relevant period of at least three years i.e. from 18th January 2003 to 30th April 2006 as is evident from the letter dated 5/6/2007 issued by Nav Krishna Valley School. Thus it is clear that when he submitted his application on 1/6/2005, he made himself unemployed. In that view of the matter, the application of respondent no.5 could not have been considered for appointment on compassionate ground. 11. The Education Officer in his affidavit in reply contended that the GR dated 26th October 1994 was applicable and the respondent no.5 could make an application for compassionate appointment within a period of five years from the demise of his father. Mr.Bandiwadekar, the learned counsel for the petitioners has placed before us a copy of the GR dated 31st December 2002 setting out the guidelines for compassionate appointments to be made in private aided schools. There is no dispute 16 ASWP-3941-2011 that respondent no.4 is a fully aided school and the GR dated 31/12/2002 clearly states that the earlier GR of 26th October 1994 was superseded. As per the GR dated 31/12/2002, the application for appointment on compassionate ground is required to be made within three months from the date of demise of the employee or the physical incapacitation of such an employee. The Education Officer, in our opinion, grossly erred in not referring to the GR dated 31st December 2002 while filing his affidavit in reply and supporting the claim of the management. We hope that the Education Officer will be more cautious in future while affirming affidavits in reply before the Court. 12. Viewed from any angle, the appointment of Respondent no.5 on compassionate ground as a Shikshan Sevak with effect from 2/8/2006 and his subsequent confirmation as Assistant Teacher, is unsustainable, it is illegal and void ab initio and hence it has to be quashed and set aside. At the same time respondent no.5 has worked for about five years continuously with the respondent no.4 – school, he is duly qualified and has gained sufficient experience. If there is a vacancy available or it occurs in the near future, he cannot be prevented from responding to such an advertisement for the post of Assistant Teacher. If he is a candidate 17 ASWP-3941-2011 along with others for the post of Assistant Teacher in open category, in our opinion, he deserves to be given preference over other candidates, if all other things are equal, in view of his experience with Respondent no.4 school. 13. Hence this petition succeeds and the same is hereby allowed. The appointment of respondent no.5 as a Shikshan Sevak on compassionate ground as per the appointment order dated 2/8/2006 as well as his confirmation as Assistant Teacher along with the approval order dated 16/3/2007 is hereby quashed and set aside. If respondent no.3 releases an advertisement for appointment of Assistant Teachers from open category in the near future, the respondent no.5 is at liberty to apply for the same and we direct that he be given preference, other things being equal. If he is appointed through such a selection process, we make it clear that he would not be eligible for continuity in service and it will be a fresh appointment. At the same time there shall not be any recovery against respondent no.5 or his mother, for the past period. 14. Rule is made absolute accordingly, but without any order as to costs. 18 ASWP-3941-2011 15. Mr. Sandesh Patil made an oral application for stay to the operation of this order. Mr.Bandiwadekar has opposed the application and stated that the appointment of respondent no.5 is held to be illegal right from the inception. The oral application is rejected. (SMT.NISHITA MHATRE, J.) (B. H. MARLAPALLE, J.)