Smt. Gauri Mahesh Nalawade v. The Managing Director, Maharashtra State Electricity Transmission Co. Ltd.

2. The petitioner seeks a direction to the MSETCL to appoint her on the post of Assistant Programmer. She is claiming appointment under the 'Open Category' but on that post the respondent no.4 was appointed on compassionate ground. She has therefore prayed for canceling the appointment of the respondent no. 4 and for continuation of the select list dated 7th October 2017 until final disposal of the writ petition.

3. The petitioner claims that she possess a degree in M.E. (Computers) with one year of experience from INFOSYS, Pune, and an additional three and a half years of experience at Datamatics Global Services Limited, Mumbai as a Computer Programmer. An advertisement was published on 17th May 2017 for making appointment on various posts and the petitioner participated in the said recruitment exercise for the post of Assistant Programmer. Having secured 70.28 out of 150 marks, she was declared successful and placed at Serial No. 1 under the 'Open Category' in the results published on 7th October 2017. She appeared for document verification on 16th October 2017 and was assured that an appointment letter would be issued shortly. Later, upon inquiry, she could learn through the information received under the RTI Act that a policy was being formulated to appoint the dependents of deceased employees who were earlier appointed on compassionate grounds on a lower post. According to the petitioner, the respondent no. 4 was appointed on a Class-III post and then re-appointed on the same post of Assistant Programmer under the 'Open Category' which was already advertised under Advertisement No. 1/2017. The petitioner has pleaded that this appointment was illegal and a backdoor entry.

4. On the other hand, the respondent nos.[1] to 3 have pleaded that a Scheme for compassionate appointment was framed and published vide CS No.28 on 16th April 1975 under Appendix ‘G’ of the MSETCL Employees Classification and Recruitment Regulation,

1961. These respondents contend that the Board has adequate powers to make appointments under the Scheme for employment of sons/daughters of deceased employees framed through Board Resolution No.1128 dated 25th March 1975. They refer to various clauses of the Scheme and Advertisement No.1/2017 to put forth a stand that the petitioner has no vested right to appointment. According to them, the employer has a prerogative to make appointment from the provisional select list or to re-appoint any person who was given compassionate appointment in a lower Grade. It is further pleaded that the advertisement itself provided that the number of vacancies and reservation for backward classes or persons with disability or women are provisional and that may change without any notice in the newspaper or on the website and such change shall not be intimated to any candidate. This stand of the respondents gets support from Clause 21 of the advertisement which provided that the Company shall have a right to modify or to cancel the advertisement / selection process at any stage and on any ground and such decision of the Company shall not be notified or intimated to any candidate. It is further pleaded that the petitioner has no right to seek appointment and no vested right was created in her favor. To justify the appointment of the respondent no.4, these respondents have stated that the dependents of the deceased employees were given appointment to the DG-II posts by virtue of one-time administrative decision taken by the Chairman. Distinguishing the Government Resolution dated 21st September 2017, it is stated that the applicability of the said Government Resolution is limited to government employees as clearly mentioned under paragraph no.2 of Schedule-A that the provisions thereunder shall not be directly applicable to the employees of the Corporation / Authority / Undertaking / Enterprises or any other establishment.

5. Such grounds have been raised by the respondent nos.[1] to 3 under different paragraphs of the reply affidavit and, in particular, under paragraph no.3(e) to (k) as under:e. As to the contents of paragraph no.12, I state that the respondents have received the RTI application of the petitioner and information has been provided vide letter no.11506 dated 30th October 2018. f. As to the contents of paragraph no.13(a), I state that the process of formulation of policy of re-appointment of dependents of Company’s deceased employees who had been given appointment at lower post under scheme of employment on compassionate ground (CS No.28) was underway at the time of publishing advertisement 01/2017. I state that therefore the advertisement clearly mentioned in the first note that “the number of vacancies and reservation for Backward Classes, Persons with Disability and Women are provisional and may change. Such change will not be notified either in newspaper, on website or intimated to the candidate.” I state that therefore the grievance of the petitioner is unfounded. I state that the petitioner was aware that the vacancies to the post of Assistant Programmer were subject to change as mentioned in the advertisement. I state that the provisional list also made it clear that the selection of the candidate in the provisional list does not confer any right on the candidates. I state that as such the respondents have not acted discriminatory or arbitrator or malafide and as such have not misused their powers. g. As to the contents of paragraph no.13(b), I state that the petitioner has lost sight of the fact that the respondent no.4 and another candidate were appointed on compassionate ground. I state that the process of appointment of the petitioner and the respondent no.4 is completely different. I state that therefore the petitioner’s grievance that the respondent no.4 did not participate in the selection process is unfounded. h. As to the contents of paragraph no.13(c), (d) & (f), I state that the petitioner has derived no right of appointment by participating in the selection process or by being featured in the provisional selection list. I state that as per the MSETCL Employees Classification and Recruitment Regulation, 1961, a scheme of employment of dependents of the deceased employee of the Company has been designed and issued vide CS No.28 dated 16th April 1975 under Appendix ‘G’ of the aforesaid Regulation. I state that the scheme does not restrict the appointments in a particular pay group. I state that it was prerogative of the respondent to appoint either from the provisional selection list or reappoint the employees appointed on compassionate ground on lower grade who were otherwise qualified to be appointed on higher grade. i. As to the contents of paragraph no.13(e), I state that the petitioner has lost sight of the clauses of the advertisement and the provisional list that, firstly the number of vacancies were provisional and could be changed, and, secondly the inclusion of the petitioner in the provisional selection list would not create any right in favour of the petitioner for appointment. j. As to the contents of paragraph no.13(g), I state that the provisional selection list in clause 7 therein mentions that the provisional select / wait list will be valid for the period of one year from the date it is published. I state that the provisional selection list was published on 7th October 2017 and has expired on 6th October 2018. I state that as such the provisional selection of the petitioner for the said post has lapsed on 6th October 2017. I state that it is pertinent to note that as stated in clause 8 of the provisional select / wait list does not confer any automatic right of possible employment with the Company. k. As to the contents of paragraph no.13(h), I state that Maharashtra State Electricity Transmission Company is a Company incorporated under the Companies Act, 1956 and functions for achieving the aims and objectives mentioned in the Memorandum of Association and works as per the provision mentioned in its Article of Association. The decisions of the Company are taken by its Board of Directors which binds all its constituents. I state that for the sake of uniformity, the respondent may adopt the Government Resolution by passing a Board Resolution. I state that therefore the respondent has its own Recruitment and Employment Regulations. I state that as such the issue of compassionate appointment has been dealt with by CS No.28 dated 16th April 1975 under Appendix ‘G’ of the aforesaid regulation. I state that the reliance of the petitioner on the Government Resolution dated 21st September 2017 issued by General Administration Department is misplaced inasmuch as it is clearly mentioned in paragraph 2 of “Schedule A” of the said Government Resolution that these provisions are limited to only government employees and these provisions will not be directly applicable to the employees of Corporation / Authority / Undertakings / Enterprises and other equivalent establishments. They can take their own independent decisions in this regard.”

6. The respondent no. 4 filed a counter affidavit taking a stand similar to that of the respondent nos. 1 to 3. He pleaded that the Chairman and Managing Director of the Board approved his Class–II appointment as a one-time measure and, that, the petitioner has no right to seek appointment. The specific stand taken by the respondent no. 4 is reproduced herein below: a. I say that I possess Bachelor of Engineering (B.E.) degree in Computer Engineering conferred on 21st May 2014 and I am heir of deceased Shri. Vivekrai Ganpatrai Kanungo, Dy. E.E. (01732099) who died in harness while in employment of the respondent nos.[1] to 3. I crave leave to refer to and rely on the qualification certificates when produced. I say that last posting of my deceased father was at 400 KV RS Division, Kundane Dhule. b. I say that my father passed away on 8th October 2010 and as per rules which provide that application for compassionate appointment be made within a period of five years from death of the employee, I being qualified and legal heir of the deceased duly made application for compassionate appointment in prescribed format with necessary documents. c. I say that after a long wait and passing of number of years on 28th December 2017 I was issued appointment order for the post of Asst. Programmer Class-2 Open category by the respondent company under compassionate appointment scheme vide appointment letter dated 28th December 2017. Pursuant to said appointment order, after completing necessary formalities, I joined the service on 15th January 2018 as per joining report at EHV PC O&M Zone Nashik and since then in continuous service till date to the satisfaction of respondent company. d. I say that before said appointment letter to the post commensurate to my education qualification B.E. was issued, the respondent issued me appointment on the post of Lower Division Clerk (LDC), however, said post is class-III post and so I had requested them that appointment made is neither fair nor proper and as per rules I being entitled to may kindly be considered for class-II post to which I am fully qualified and otherwise eligible. A copy of the request email dated 20th May 2015 is annexed herewith and marked as Exhibit R4-3. Said appointment was temporary. It must be noted that I was never on the employee roll of the respondent Company prior to appointment letter dated 28th December 2017 as I had not joined against said Class-III post and said fact is clear from the perusal of appointment order dated 28th December 2017 itself. Therefore, to say that, I have been promoted is an incorrect statement made by the petitioner. I say that relevant rules provide for extension of time to join service and as per applicable rules on my applications for extension I was granted extension from time to time after considering the reasons for same and competent authority having found them justified, valid and proper in line with existing rules. I crave leave to refer to and rely on the LDC appointment order and said letters / approvals regarding extension of time, when produced. e. My appointment is valid, proper, legal and justified and petitioner has no case at all and has miserably failed to show any vested right existing in her to get appointment much less superseding my right to the post. As per Appendix G of the Compassionate Appointment Recruitment Scheme Regulations framed by the respondent Company vide Resolution No.1128 dated 25th March 1975 in clause 5 therefore it is provided thus: “5.The widow / widower / daughter / son of the deceased employees of the Board can be considered for appointment to the post for which she/he is educationally qualified for appointment, provided that the application for employment is made within five years from the date of death of the employee.” Further, in clause 6 of said regulations, it is provided as follows: “6.The prescribed condition for direct recruitment i.e. nomination by the employment exchange or recruitment only after advertisement shall be relaxed in such cases.” Most importantly, the clause 8 seals the case in favour of the deponent as against the petitioner and said clause for ready reference is set out hereunder: “8.Appointment shall be made on a temporary basis in such cases immediately giving him / her preference over the candidates on the waiting list if there be any as soon as the proposal is approved by the central authority.” f. I am the only earning member in my family and I have three number of dependents. I have got married recently and have dependent wife. If for any reason at this juncture and after such a long wait to get employment, to which I am legally, educationally and otherwise entitled to, my services are terminated for any reason, for which I am not at all at fault and have no role to play, I along with my family members will suffer grave prejudice and entire family would get disturbed and be without any means of income. I was offered work on lump-sum basis of paltry amount of Rs.3,000/- against working for ten days in a month with the respondent Company and have worked till issuance of appointment order dated 28th December 2017 as Assistant Programmer. I say that in hope that I will be duly considered for post for which I am qualified I have worked on such small payment and said service cannot be used as work experience for any purpose. Hence, termination of my services today would result in so many years being wasted and without experience to apply for any other suitable job elsewhere. g. I say that, as against my case, the petitioner has no vested right to appointment, the acts of respondent Company have not been challenged on the ground of malafide and as the acts are otherwise within the four-corners of the compassionate scheme regulations and other applicable rules, the petition deserve to be and may kindly be dismissed. I say that none of the officers are made party by name hence question of malafide which is neither pleaded nor officer made party does not arise. I say that the employer having exercised its right as per Rules / Regulations in force, no interference is called for in the given circumstances as it is prerogative of employer to choose whom to appoint and the reduction of post or cancellation of selection process is also within its powers.”

7. Ms. Jagdale, the learned counsel for the petitioner submits that the petitioner being first-ranked candidate in the select list has a legitimate right to seek appointment and such right cannot be defeated merely on the ground that the employer may choose not to appoint a select list candidate. She contends that the compassionate appointments are allowed only for Class–III and Class–IV posts and appointment of the respondent no. 4 on a Class–II post which was publicly advertised and a select list was prepared is wholly illegal. The learned counsel relies on a Government Resolution dated 21st September 2017 and submits that the Maharashtra State Electricity Board (MSEB) now the MSETCL, a statutory corporation under the Electricity (Supply) Act, 1948, is “State” under Article 12 of the Constitution of India and it must be held bound by the said resolution and cannot make compassionate appointments on Class–II posts. She referred to the decision in“Umesh Kumar Nagpal Vs. State of Haryana and Ors.1” wherein the Hon’ble Supreme Court observed that compassionate appointment can be made only to Class–III and Class–IV posts. The learned counsel therefore argues that the respondent–Authorities have no powers to appoint the respondent no. 4 to a Class–II post which was already advertised on 17th May 2017 and the stipulations under the advertisement cannot be arbitrarily applied to deny appointment to the petitioner.

8. In response, Mr. Abhijeet Joshi, the learned counsel for the MSETCL outlines the factual background in which the appointment of the respondent no.4 was made. The learned counsel referred to the supplementary affidavit whereunder the respondent nos.[1] to 3 have pleaded that Panchappa Dattatray Takkalgi approached the Industrial Tribunal seeking compassionate appointment and a direction was issued by the Tribunal for his appointment and against that decision the Transmission Company came to this Court in Writ Petition No.2660 of 2019 but the said writ petition was dismissed by an order dated 10th February 2020 and thereby the order of the Tribunal granting appointment to Panchappa Dattatray Takkalgi was confirmed. Mr. Joshi submitted that one post under the ‘Open Category’ was given to the respondent no.4 as approved by the Chairman of the MSETCL and pursuant to the order passed by the Tribunal, Panchappa Dattatray Takkalgi was appointed on 2nd post under the ‘Open Category’. The learned counsel contends that the employer has powers under the Scheme to make compassionate appointments and there was no illegality in appointing respondent no. 4 on a Class–II post. He extensively referred to various clauses under the advertisement and the stipulations published in the select list to contend that the petitioner has no right in law to seek appointment on the post of Assistant Programmer. Mr. Deshmukh, the learned counsel for the respondent no. 4 adopted the arguments of Mr. Joshi and referred to Clauses 5, 6, and 8 of the Regulations to support the appointment of the respondent no.4. The provisions under Clauses 5, 6, and 8 read as under: “5. The widow/widower/daughter/son of the deceased employees of the Board can be considered for appointment to the post for which she/he is educationally qualified for appointment, provided that the application for employment is made within 5 years from the date of death of the employee. * “Family includes wife of the deceased employee, sons, unmarried daughters and dependent unmarried brothers and sisters”. **Note 1:Chairman is empowered to decide the cases of employment to the eligible dependent of the deceased employees of the Board under the scheme wherein the application for employment is made after the prescribed period of 5 years from the date of death of the deceased employee. The cases in which relaxation is granted by the Chairman should be reported to the Board in the next immediate meeting after the relaxation is approved. *Note 2: The Board further authorised the chairman on the recommendation of the Member Admn./Secy. To decide pending cases on merits where the incident of death of the employee occurred in the period preceding the date of Resolution i.e. No.485 dt.21-2-87.

6. the prescribed condition for direct recruitment i.e. nomination by the Employment Exchange or recruitment only after advertisement shall be relaxed in such cases.

7. ……

8. Appointment shall be made on a temporary basis in such cases immediately giving him/her preference over the candidates on the waiting list if there be any, so soon as the proposal is approved by the Competent Authority.”

9. The scheme for compassionate appointment formulated by the Transmission Company provides under Clause 5 that the widow/widower/daughter/son of the deceased employees of the Board can be considered for appointment provided the application for employment was made within 5 years from the date of death of the employee. The father of the respondent no.4 died on 8th October 2010 and he being dependent on him was entitled to make an application for compassionate appointment. He was offered appointment on a Class–III post on 6th July 2015 as a Lower Division Clerk HR but he did not accept the offer and raised a protest that he is entitled to appointment on a Class–II post. This is well settled that only right of a dependent of the deceased employee is that his application for compassionate appointment is considered within the framework of the Scheme formulated by the employer and other applicable laws. In “N. C. Santhosh v. State of Karnataka & Ors.”, (2020) 7 SCC 617, the Hon’ble Supreme Court held that a dependent of the Government employee, in the absence of any vested right accruing on the death of that employee, can only demand consideration of his/her application for compassionate appointment. The claim of the respondent no. 4 for appointment on the compassionate ground was entertained by the MSETCL and an offer to appoint him on a Class- III was made. Whether or not he joined the said post was not relevant and his claim for compassionate appointment was liable to be closed at the very moment he was offered a Class- III post. This is well remembered that the Scheme for compassionate appointment is formulated by the employer to provide immediate help to the family in distress and thus to enable the family to tide over the sudden crisis and no appointment on compassionate ground can be granted so many years after the employee died in harness. The passage of time after the death becomes a reason to conclude that the family had tide over the immediate crisis. In “Haryana State Electricity Board & Anr. v. Hakim Singh” (1997) 8 SCC 85, Hon’ble Supreme Court observed that the object of providing relief should not be taken as opening an alternative mode of recruitment to public employment. In paragraph no.8 of the reportable judgment the Hon’ble Supreme Court observed as under:- “8. The rule of appointments to public service is that they should be on merits and through open invitation. It is the normal route through which one can get into a public employment. However, as every rule can have exceptions, there are a few exceptions to the said rule also which have been evolved to meet certain contingencies. As per one such exception relief is provided to the bereaved family of a deceased employee by accommodating one of his dependents in a vacancy. The object is to give succor to the family which has been suddenly plunged into penury due to the untimely death of its sole breadwinner. This Court has observed time and again that the object of providing such ameliorating relief should not be taken as opening an alternative mode of recruitment to public employment”.

10. Though the decision to give appointment on a higher post to the dependents of the deceased employees has not been brought on record, we would observe that such subsequent change in policy could not have been applied in case of the respondent no.4 because he had declined the offer for appointment on Class- III post. As we glanced through the Scheme for compassionate appointment, we find that no educational qualification has been prescribed and the qualification of 4th standard only is needed under Clause 10 for compassionate appointment. This provision under Clause 10 clearly reflects the intention of the employer to give appointment only on a Class- IV post. The so called changed policy approved by the Chairman of MSETCL seems to be contrary to CS No.28 dated 16th April 1975. Besides that, such decision of the MSETCL was in teeth of the pronouncement in “Umesh Kumar Nagpal ” that compassionate appointment can be granted on Class-III and Class-IV posts. In the said case, Hon’ble Supreme Court observed that the Scheme for compassionate appointment is not a vested right which can be exercised at any time in future. Elucidating the object behind compassionate appointment, Hon’ble Supreme Court held that the object is not to give a member of the bereaved family a post much less a post for post held by the deceased employee. In “Union of India & Ors. vs. M.T. Latheesh”, (2006) 7 SCC 350, Hon’ble Supreme Court has held that the compassionate appointment being an exception to the general rule, appointment has to be made only in warranting situation, and in granting appointment the guiding factors should be financial condition of the family. Notwithstanding such declarations by Hon’ble Supreme Court, the respondent no.4 was offered appointment on a Class–II posts more than 7 years after the death of his father. Mr.Joshi, the learned counsel for the respondent nos.[1] to 3 however referred to different clauses under Advertisement No.1/2017 whereunder it is provided that the selection of the candidate was purely on provisional basis and the select list shall be valid for one year from the date of publication. Therefore, the petitioner shall not have any automatic right of employment in the Transmission Company and cannot challenge the appointment of the respondent no.4.

11. This is well settled that the employer has some discretion in the matters of appointment but the decision of the employer not to appoint a select list candidate must be backed by valid reason. The reason put forth on behalf of the respondent nos.[1] to 3 is that the respondent no.4 was given appointment because there was a change in the policy to give compassionate appointment. In our opinion, this plea taken on behalf of respondent nos.[1] to 3 is liable to be rejected. Any public employment must be made in consonance with the Constitutional mandate under Article 14 and Article 16 of the Constitution of India. The decision of the MSETCL not to appoint the petitioner is patently arbitrary and illegal. All public authorities are required to observe the high Constitutional principles of justice and equality and any decision of the employer which does not satisfy the requirements of fairness in action must be held bad in law. Even the decision in Writ Petition No.2660 of 2019 came on a later date and before that the provisional select list was already published on 7th October 2017. In the proceeding of the said writ petition, the Court was not informed about the advertisement and nonavailability of any post for the appointment of Mr.Panchappa Dattatray Takkalgi. It also appears that the Court was not informed about Advertisement No.1/2017 and no vacancy under ‘Open Category’ being available. Even so, we are of the opinion that the selected candidate like the petitioner who has proved her merit cannot be denied appointment. This is not the case that for some financial reasons Advertisement No.1/2017 was recalled and the post of Assistant Programmer advertised thereunder was canceled. She came to this Court soon after she received the information through RTI and before the select list expired. The intervening period has been consumed due to pendency of this case and this lapse of time cannot be held against her. Any condition under the advertisement or the stipulations published in the select list cannot be arbitrarily applied to deny her appointment on the post for which she was selected and ranked first in the merit list. The petitioner who stood first in the select list has a vested right for appointment on the advertised post of Assistant Programmer and we order accordingly.

12. As to appointment of the respondent no.4, we hold that he has no right to be appointed on the advertised post of the Assistant Programmer but the situation should be remedied by the Transmission Company by creating a shadow or supernumerary post for him, as provided under Note 2 to Clause 8 of the Scheme for compassionate appointment. We order accordingly. We are doing so because the respondent no.4 possesses the requisite educational qualification and has been working since last more than seven years on the post of Assistant Programmer and it was a fault on the part of the employer that he was appointed against the advertised post of the Assistant Programmer.