Nitin Ramesh Khedekar vs State Of Maharashtra And Ors

Heard Mr. N.V. Bandiwadekar, learned counsel appearing on behalf of the petitioner and Mr. Y.D. Patil, A.G.P. appearing on behalf of

respondent Nos.1 to 3. None appears for respondent Nos.4 and 5 though served.

Rule. Respondents waive service. By consent of parties rule is made returnable forthwith.

By the present petition fled under Articles 226 and 227 of the Constitution of India, the petitioner is challenging the legality and propriety of the

orders dated 31.12.2018 and 22.05.2019 passed by the Education Officer (Secondary), Zilla Parishad, Ratnagiri i.e. respondent No.3, inter alia,

refusing approval to the appointment of the petitioner on compassionate grounds in the respondent No.5 School. One of the reasons given by the

respondent No.3 / Education Officer for refusing the approval for appointment is that unless and until the staffing pattern in respect of privately aided,

partly aided, secondary and higher secondary schools is finalised by the Government, appointments / approval of appointments on compassionate

grounds should not be finalised. Being aggrieved, the petitioner has fled the present petition.

The brief narration of the facts is considered necessary:-

4.1. The respondent No.5 is a Government recognized aided private Secondary School and Junior College run by the respondent No.4 / Trust. The

service conditions of the teaching and non-teaching staff working in the respondent No.5 School are governed by the provisions of the Maharashtra

Employees of Private Schools (Conditions of Service) Regulations Act, 1977 (hereinafter referred to as ""the said Act"") and the Maharashtra

Employees of Private Schools (Conditions of Service) Rules, 1981 (hereinafter referred to as ""the said Rules"").

4.2. The petitioner's father was working as a Laboratory Attendant in the respondent No.5 / School. The appointment of the petitioner's father as a

Laboratory Attendant was duly approved on a sanctioned and aided post and he was receiving monthly salary from the grant-in-aid which was

sanctioned and released by the Education Department. Thus the petitioner's father was a permanent employee in service on the post of Laboratory

Attendant in respondent No.5 School. On 04.10.2006 the petitioner's father died in harness while in employment, leaving behind his widow, two sons

and one daughter. On 30.10.2006 the petitioner made an application to the respondent No.4 / Trust followed by a further application dated 09.05.2007

to the respondent No.3 / Education Officer seeking employment on compassionate grounds in place of his father. On 30.05.2007 respondent No.3 /

Education Officer forwarded a copy of the petitioner's application dated 09.05.2007 to the respondent No.5 School, inter alia, directing appropriate

action to be taken on the said application as per rules, so as to give appointment to the petitioner on compassionate basis.

4.3. On 13.06.2007 the management of the respondent No.4 / Trust appointed the petitioner in respondent No.5 / School as a Peon w.e.f. 18.06.2007.

The appointment order mentioned that the petitioner's father was working as Laboratory Attendant and he died while in service on 04.10.2006 and

that the petitioner was therefore appointed as a Peon on compassionate grounds in place of his father. Petitioner's father was the only bread winner of

the family. The petitioner joined service as a Peon on 18.06.2007 in the respondent No.5 School.

4.4. Thereafter, between 2007 to 2012 there was correspondence between the respondent No.5 and respondent Nos. 2 and 3 in respect of grant of

approval to the appointment of the petitioner on the post of Peon on compassionate grounds in the respondent No.5 School. The respondent No.2 i.e.

Deputy Director of Education, Kolhapur region, Kolhapur was also approached as it was revealed that the petitioner's father was working as

Laboratory Attendant in the Junior College and therefore the approval for appointment would be granted by respondent No.2. Certain deficiencies in

the proposal forwarded by respondent No.5 School were also pointed out by respondent No.2 to which detailed explanation was submitted by

respondent No.5 School.

4.5. On 02.05.2012 the petitioner made one more attempt and submitted an application to respondent No.3 Education Officer seeking grant of

approval to his appointment. The respondent No.3 by letter dated 22.03.2012 had informed the respondent No.5 School that by Government Resolution

dated 22.03.2012, the State Government had relaxed the ban for making compassionate appointment in Group - C and Group - D posts. Therefore

respondent No.5 School was directed to submit report as to whether the post for which the petitioner had applied was admissible as per the provisions

of the Government Resolution dated 25.11.2005 and whether such a post is vacant or not. Respondent No.5 School in compliance of the aforesaid

directions submitted a detailed report, inter alia, stating that the post in which the petitioner came to be appointed was admissible and was a sanctioned

post.

4.6. On 05.06.2014 the respondent No.3 Education Officer addressed a letter to all Secondary and Higher Secondary Schools in Ratnagiri District and

intimated that as per Government Resolution dated 31.12.2002 a near relative of the employee who had died while in service as teacher or non-

teaching employee in a private aided School would be eligible for appointment on compassionate grounds and the management of such schools should

submit the information to the respondent No.3 Education Officer to enable grant of compassionate appointment of such persons in compliance of the

said letter. Respondent No.5 School once again furnished the relevant information relating to the appointment of the petitioner and sought approval

thereto. Thereafter the petitioner made several applications to respondent Nos.3 to 5 for seeking approval of his appointment but there was no

response from the said respondents.

4.7. On 31.12.2018 the respondent No.3 Education Officer informed the respondent No.5 School that as per Government Resolution dated 12.02.2015

it was directed that until revised staffing pattern of non-teaching employees was sanctioned, no recruitment on vacant posts could be made. By the

said letter, the original proposal for seeking approval for appointment of the petitioner was returned back to respondent No.5 School.

4.8. On 19.03.2019 the petitioner made a detailed representation to the respondent No.3 Education Officer stating that the appointment of the

petitioner was made in the year 2007 on compassionate grounds and placed reliance on various Government Resolutions before the respondent No.3

Education Officer. The respondent No.5 School by its letter dated 05.04.2019 once again submitted a fresh proposal for seeking grant of approval to

the appointment of the petitioner in the respondent No.5 School enclosing all necessary particulars and documentation thereto.

4.9. By letter dated 22.05.2019 the respondent No.3 Education Officer informed the petitioner that as per Government Resolution dated 12.02.2015 no

recruitment could be made on any vacant post of non-teaching cadre and once again returned back the said proposal. The petitioner has therefore

approached this Court to challenge the twin orders dated 31.12.2018 and 22.05.2019 passed by the respondent No.3 Education Officer refusing to

grant approval to the petitioner's appointment on compassionate grounds.

The facts are not in dispute in the present case, it is an admitted position that the appointment of the petitioner on compassionate grounds was made

on 13.06.2007 in place of his deceased father who was working on a sanctioned post in the service of the respondent No.5 School. It is also an

admitted position that by Government Resolution dated 22.03.2012, the State Government had relaxed the ban for making compassionate appointments

in Group - C and Group - D posts. As such there was no restriction for appointment of the petitioner on compassionate grounds, which in any event

was made on 13.06.2007 i.e. well before the imposition of any ban whatsoever.

Mr. Bandiwadekar learned counsel appearing for the petitioner submitted that the petitioner's father was the only bread winner of the family and

the appointment of the petitioner was made on compassionate grounds by following the due process of law as applicable at the then time. He

submitted that reasonable expectation of the petitioner was that just as the appointment of his father as Laboratory Attendant was approved by the

State Government and its functionaries viz; respondent Nos.2 and 3, even the appointment of the petitioner will be approved. Since the approval of the

appointment of the petitioner was not forthcoming the same is therefore questioned in the present petition. He submitted that there cannot be any

embargo on the appointment of the petitioner on compassionate grounds as the same cannot be equated as fresh appointment.

Mr. Bandiwadekar submitted that the case of the petitioner is covered by various decisions of this Court. He specifically referred to and relied upon

the judgment and order dated 11.12.2018 passed in Writ Petition No.7507 of 2016 in the case of Samita Sameer Desai & Anr. v/s. the State of

Maharashtra through Secretary & Anr. He placed reliance upon paragraph No.9 of the decision which reads thus :-

“9. It is common ground that the appointment is sought by petitioner No.1 on compassionate ground. The very object and purpose of such

employment and conferring a power to make appointment on compassionate ground is that the employer assists the family to tide over the financial

crisis caused by the loss of bread winner. It is an assistance to the family and which is in distress. In the circumstances, this is not a fresh appointment

or an appointment which ordinarily requires the approval. All that would suffice is an intimation from petitioner No.2 that the husband of petitioner

No.1 was already appointed as a Peon and that post was permanent and duly sanctioned. Having appointed him, it was revealed that he died suddenly

on 2nd November, 2011. In his place, in terms of Government policy, compassionate appointment was sought and it is that appointment which has

been made. There is no post created nor is there any question of an appointment being made through recruitment process which was covered by the

ban. The ban, thus, could not have covered this appointment.â€​

Mr. Y.D. Patil, learned A.G.P. appearing on behalf of respondent Nos.1 to 3 while defending the impugned orders has sought to rely upon

Government Resolution dated 12.02.2015.

Respondent Nos.1 to 3 have fled their affidavit-in-reply dated 14.01.2020. The stand of the said respondents is contained in paragraph Nos.6 and 7

which reads thus:-

I say that it is pertinent to note that since 25.11.2005 being policy of the Government there is ban on recruitment of non-teaching staff. I say that

thereafter the committee was established to consider the cases of non-teaching staff vide Government Resolution dated 12th February, 2015 to

consider the staff pattern in respect of the private aided, partly aided Secondary and Higher Secondary and Military schools in the state. The said

Government Resolution is annexed as page No.59 being Exhibit-U.

I say that the said Government Resolution came to be cancelled vide Government Resolution dated 7th March, 2019 and fresh decision is taken in

respect of recruitment of non-teaching staff in the aided, partially aided Secondary and Higher Secondary School. In the said Government Resolution it

is provided that the actual post required for Education Institutions as per Government Resolution dated 28th January, 2019 and guidelines provided

therein the allegation of the post of non-teaching staff to be made by Education Director, Secondary and Higher Secondary School, Maharashtra

State, Pune. Till posts are approved the said posts are not to be termed sanctioned posts in the Educational Institution. Hereto annexed and marked as

Exhibit- 1 and 2 are the copies Government Resolution dated 28th January, 2019 and 7th March, 2019. As such policy of the Government as

contemplated in Government Resolution dated 28th January, 2019 and 7th March, 2019 are holding field and applicably for the appointment of non-

teaching staff in all aided and partially aided school in the State of Maharashtra including Respondent Nos.4 and 5.â€​

I have perused the writ petition, annexures thereto, so also the affidavit-in-reply and rejoinder.

It is clear and an undisputed fact that when the appointment of the petitioner was made as Peon on 13.06.2007 there was no embargo or

restriction or ban imposed in either making the appointment or granting the approval. The Government Resolution dated 02.05.2012 imposing a ban on

making appointments in secondary schools was issued on 02.05.2012 i.e. much after the appointment of the petitioner. Another reason that has been

given for denying the approval is that unless and until the sanctioned staffing pattern in respect of private aided, partly aided, secondary and higher

secondary is finalised by the Government, appointment / approval of appointment on compassionate grounds shall not be finalised.

On both the above reasons, the approval to the appointment of the petitioner is refused.

It is needs to be noted that the very object and purpose of employment on compassionate grounds is that the employer assists the bereaved family

to tide over the financial crises caused by the sudden loss of the bread winner of the family. Appointment on compassionate grounds is the form of an

assistance to the family which is in distress due to the sudden loss of the bread winner. Such appointment on compassionate grounds therefore cannot

be equated with a fresh appointment which will ordinarily require approval. All that it would be required to be considered in such a case is that the

father of the petitioner was already working on a duly sanctioned and permanent post. As stated earlier, the ban on recruitment in secondary schools

was effected by the State Government by Government Resolution dated 02.05.2012 whereas, the appointment of the petitioner was made on

13.06.2007 and thus the said ban could not have covered this appointment. The contention of the respondent therefore cannot be accepted. The

decision to appoint the petitioner was taken by the management of the respondent Nos.4 Trust and the respondent No.5 School. Such appointment

was made on 13.06.2007 and the petitioner joined service with respondent No.5 School on 18.06.2007. Since then, the petitioner has been working on

the said post. It is therefore clear that the appointment was made with effect from 18.06.2007 and intimated to the respondent No.3 Education Officer

when the proposal for seeking approval to the said appointment was made. During all these actions there was no ban on recruitment whatsoever. The

affidavit-in-reply on record refers to and relies upon several Government Resolutions pertaining to the years 2012, 2015 and 2019. None of the said

Government Resolutions are retrospective in their application.

Another facet of this case is that the appointment of the petitioner on compassionate grounds is made in terms of Government Resolution dated

31.12.2002 and same has not been superseded by any Government Resolution and more particularly by the one imposing ban on 02.05.2012. In fact,

such appointments were kept out of the purview of the general ban imposed on recruitment. The very object in all such appointments enables the State

Government to carry forward its earlier policy despite the overall ban on recruitment and appointment. The above ground is also impossible to be

sustained for refusal of the approval sought for appointment of the petitioner. Therefore the refusal to approve the petitioner's appointment on

compassionate basis cannot be sustained.

This Court has in a catena of similarly placed cases considered the aforesaid issue and more specifically the issue relating to applicability of

Government Resolution dated 02.05.2012 imposing ban on recruitment and its applicability to appointments made on compassionate grounds. This

Court has held that such a blanket ban would not apply to an appointment on compassionate basis, considering the fact that any appointment on

compassionate ground is not a fresh appointment but is made so in exigencies to accommodate the family member of the bread winner on his/her

death. It has been held that appointment on compassionate grounds are cases which are different to all other such matters of appointment.

Once I find that this is how the case has been proceeded on facts, without addressing the larger issue, the present writ petition deserves to be

allowed by quashing and setting aside the impugned orders dated 31.12.2018 and 22.05.2019. The said orders are accordingly quashed and set aside.

It is declared that the petitioner's appointment as Peon on compassionate basis in the place of his deceased father would be effective on 18.06.2007

and that he would be entitled to all the benefits, salary, emoluments etc. attached to that post. The appointment of the petitioner therefore stands

approved accordingly. The formal order to that effect shall be issued by the concerned authorities namely respondent No.2 and or respondent No.3

within a period of two months from the date of communication of this order.

Rule is made absolute in the above terms with no order as to costs.