State of Maharashtra v. Chhaya Vishwas Bhosale

4. Per contra, the Respondents supported the order of the Tribunal and submitted that there is no express provision prohibiting substitution of Respondent No.2 in place of Respondent No.1 in the scheme of Government Resolution 2005. The Respondents further submitted that the delay on the part of the appointment is not attributable to the Respondents but it is the Petitioners, who did not appoint Respondent No.1 till she reached the age of 40 years and thereafter disqualified her and deleted her name from the waiting list on the ground of her having reached the age of 40 years on 5th October

2009. The Respondents submitted that they had at the earliest made an 5 of 11 application for compassionate appointment. The Respondents relied upon the decision in the case of Supriya Suresh Patil vs. State of Maharashtra, 2018 (17) SCC 67 and in the case of Smt. Sushma Gosain and Ors. vs. Union of India and Ors. 1989 (4) SCC 468 and 2018 SCC Online Bom 6667 in support of the said submission. Analysis and Conclusions:-

5. Before we proceed to analyze the facts of the present case, it is relevant to seek guidance from the latest decision of the Supreme Court which has examined all the aspects of appointment on compassionate ground. It is apt to reproduce paragraphs 32 and 35 of the decision in the case of State of West Bengal Vs. Debabrata Tiwari & Ors., 2023 SCC OnLine SC 219. “32. On consideration of the aforesaid decisions of this Court, the following principles emerge: i. That a provision for compassionate appointment makes a departure from the general provisions providing for appointment to a post by following a particular procedure of recruitment. Since such a provision enables appointment being made without following the said procedure, it is in the nature of an exception to the general provisions and must be resorted to only in order to achieve the stated objectives, i.e., to enable the family of the deceased to get over the sudden financial crisis. ii. Appointment on compassionate grounds is not a source of recruitment. The reason for making such a benevolent scheme by the State or the public sector undertaking is to see that the dependants of the deceased are not deprived of the means of livelihood. It only enables the family of the deceased to get over the sudden financial crisis. iii. Compassionate appointment is not a vested right which can be exercised at any time in future. Compassionate 6 of 11 employment cannot be claimed or offered after a lapse of time and after the crisis is over. iv. That compassionate appointment should be provided immediately to redeem the family in distress. It is improper to keep such a case pending for years. v. In determining as to whether the family is in financial crisis, all relevant aspects must be borne in mind including the income of the family, its liabilities, the terminal benefits if any, received by the family, the age, dependency and marital status of its members, together with the income from any other source.

35. Considering the second question referred to above, in the first instance, regarding whether applications for compassionate appointment could be considered after a delay of several years, we are of the view that, in a case where, for reasons of prolonged delay, either on the part of the applicant in claiming compassionate appointment or the authorities in deciding such claim, the sense of immediacy is diluted and lost. Further, the financial circumstances of the family of the deceased, may have changed, for the better, since the time of the death of the government employee. In such circumstances, Courts or other relevant authorities are to be guided by the fact that for such prolonged period of delay, the family of the deceased was able to sustain themselves, most probably by availing gainful employment from some other source. Granting compassionate appointment in such a case, as noted by this Court in Hakim Singh would amount to treating a claim for compassionate appointment as though it were a matter of inheritance based on a line of succession which is contrary to the Constitution. Since compassionate appointment is not a vested right and the same is relative to the financial condition and hardship faced by the dependents of the deceased government employee as a consequence of his death, a claim for compassionate appointment may not be entertained after lapse of a considerable period of time since the death of the government employee.”

6. In the instant case, admittedly various applications made by the respondents were well within the time and not hit by delay and laches. At the same time, there does not appear to be any malafides on the part of the petitioners for not appointing the Respondents on compassionate basis immediately. The first application was made by the Respondent No.1-wife seeking compassionate appointment of 7 of 11 Respondent No.2-son which was rejected since her son was minor and therefore, could not be offered compassionate appointment. Thereafter, Respondent No.1-wife applied herself to be given compassionate appointment and she was put on the waiting list at Sr. No.50. However, as per 2005 Government Resolution dealing with the appointment on compassionate ground, dependent if he/she who is of the age of 40 years, is not eligible for appointment on compassionate ground. Respondent no.1-wife attained the age of 40 years on 5th October 2009 when she was still on the waiting list. The petitioners communicated the deletion of her name on 2nd June 2014. Thereafter, Respondent no.- 1-wife requested the Petitioners to substitute her name with her son for consideration for appointment on compassionate ground. We failed to understand as to why the Petitioners could not give the employment to Respondent No.1-wife immediately, on her making an application on 31st August 2006. The whole objective of appointment on compassionate ground would be defeated if the Petitioners do not give such employment within a reasonable period of time. In the instant case, the petitioners did not offer employment on compassionate ground for almost a period of 3 years to Respondent No.1-wife, by which time she attained the age of 40 years and on this ground, she was disqualified. We hope that the Petitioners in future would take a decision on compassionate ground within the reasonable period of 8 of 11 application having been made so that the objective of the said scheme is achieved.

7. Having said so, it is important to note that since 2005 till 2020, the day when the Original Application was filed with the Tribunal, respondent nos.[1] and 2 were able to survive. Respondent no.1 in her letters dated 19th May 2015 and 23rd August 2016 has stated that her son respondent no.2 is an agricultural graduate. This indicates that respondents have sailed through difficult time and their economical conditions have improved over a period of 15 years i.e. 2005 to 2020. Taking this into consideration and applying the guidance issued by the Supreme Court in case of State of West Bengal Vs. Debabrata Tiwari & Ors. (supra), in our view, the object behind providing for compassionate appointment has been achieved in the instant case even without offering the said employment to the said respondents within the reasonable time. The compassionate appointment is not a vested right which the dependent of the employee can claim and moreso in the facts of the present case, by lapse of almost two decades. Therefore in our view, the Tribunal ought to have considered the aforesaid aspect in the impugned order.

8. The reliance of the petitioners on the decision of the Supreme Court in the casse of Supriya Suresh Patil alias Sow Supriya Pratik Kadam Vs. State of Maharashtra & Ors. (supra) is not applicable to the 9 of 11 instant case since the said decision was rendered by exercising powers under Article 142 of the Constitution of India for doing absolute justice which this Court is not empowered to.

9. The second decision relied upon by the petitioners in case of Smt.Sushma Gosain & Ors. Vs. Union of India & Ors (supra) would also not be applicable to the facts of the present case since over a period of time, Respondent No.2 is qualified as an agricultural graduate which indicates the economic upliftment of the respondents over a period of 2 decades inspite of the Petitioners not granting them compassionate appointment. We have however, sounded that the petitioners ought to have taken decision immediately on making of the application made by respondent no.1-wife dated 31st August 2006, which in the instant case they have not.

10. Insofar as the decision of the Nagpur Bench in case of Payal Puran Patle Vs. The State of Maharashtra & Ors. (supra) is concerned, the said decision deals with whether 2015 Government Resolution is to be applied or not which is not the case before us and therefore, even this decision would not be of any assistance to the petitioners.

11. In view of above and following the law laid down by the Supreme Court especially in paragraph 35 in the case of Debabrata Tiwari & Ors. (supra), the impugned order of the Tribunal dated 23rd 10 of 11 January 2020 is unsustainable. The aspects stated therein have not been considered by the Tribunal.

12. In view of aforesaid, the judgment of the Maharashtra Administrative Tribunal in O.A. No.863 of 2017 dated 23rd January 2020 is set aside. The Original Application stands dismissed. Rule is made absolute in above terms with no order as to costs. [JITENDRA JAIN, J.] [A. S. CHANDURKAR, J.]