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CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 626 OF 2021
1. The Municipal Commissioner, The Municipal Corporation of Gr.
Mumbai, Mahanagarpalika Marg, Mumbai-400 001
2. The Chief Executive Engineer, The Drainage Department, The Municipal Corporationof Gr.
Mumbai, Love Groove, Worli, Mumbai. ... Petitioners
Age – Adult, R/o. Panjara Pol, Gautam Nagar, Din Quarry road, Behind Shiv Sena Office, Chembur, Mumbai-400 088
2. Mr. Kiran Ashok Borade
Age – Adult, R/o. Panjara Pol, Gautam Nagar, Din Quarry road, Behind Shiv Sena Office, Chembur, Mumbai-400 088 ...Respondents
Ms. Anupama Talekar for Respondents.
JUDGMENT
1. Rule. Rule is made returnable forthwith. With the consent of parties, petition is taken up for final hearing.
2. Compassionate appointment aimed at providing immediate succor to the family in penury is an exception to equality clause enshrined under Articles 14 and 16 of the Constitution of India, where a ward of a deceased or medically boarded out employee gets appointment without participating in a competitive selection process. While compassionate appointments are restricted to only cases where an employee dies in harness or is medically boarded out, the Government of Maharashtra has formulated a Scheme for employment of wards of Safai Kamgars even on their retirements. The Scheme is formulated towards implementation of recommendations of Lad Page Committee constituted by the Government of Maharashtra sometime in the year 1972 for ameliorating the lives of manual scavengers, who did not find acceptability in society. Amongst various recommendations of Lad Page Committee, it was recommended that a ward of serving employee engaged in manual scavenging be appointed on preferential treatment basis on retirement of such an employee. Valmiki and Mehtar communities were largely engaged in manual scavenging activities in those times and candidates of other communities were not willing to undertake the jobs of cleaning of gutters and drainage lines. The Scheme which was initially applicable to State Government employees was later made applicable to employees in Municipal Corporation, Municipal Councils, etc. As time advanced, employees belonging to other communities who were engaged in cleaning jobs also started demanding extension of benefits of Lad Page Committee. Accordingly, sweepers or Safai Kamgars were also bought into the ambit of the Scheme. Since the Scheme envisages guaranteed appointment to a ward/near relative of an employee, the Scheme has been given different nomenclatures as ‘Vashila Scheme’, ‘Varas Hakka’, ‘Preferential Treatment appointments’, some of the nomenclatures connoting appointment as a hereditary right.
3. This guaranteed appointment to a ward/near relative triggered a rush amongst other workers/employees to brand themselves as ‘Safai Kamgars’ to reap the benefits of the Scheme. I have before me one such employee of the Municipal Corporation of Greater Mumbai, who does not carry the designation recognized for application of the Scheme but claims to have performed job akin to that of a Safai Kamgar so as to ensure a secured job in the Municipal Corporation to his son.
4. The question that has attracted attention of this Court is the exact determinative factor for applicability of the Scheme, whether it is the ‘designation’ of an employee or the ‘nature of work’ performed by him regardless of his/her designation.
5. The issue arises in the light of challenge set up by the Mumbai Corporation of Greater Mumbai to the judgment and order dated 10 January 2020 passed by the Industrial Court, Mumbai in Complaint (ULP) No.333 of 2017. The employees holding the post of ‘Labour’ in the Sewerage Department of the Municipal Corporation are not covered by the Scheme, yet the Industrial Court has held Respondent No. 1 eligible under the Scheme and has directed appointment to his son. The Municipal Corporation has been directed to provide employment to Respondent No.2 on Preferential Treatment Case basis.
6. Before adverting to the rival submissions canvassed by the learned counsels, narration of factual background of the case would be necessary. Respondent No.1 joined services of Petitioner-Municipal Corporation in the year 1986 on the post of Labour. He was posted in the Drainage Department. After attaining age of superannuation, he retired from service on 01 September 2017.
7. Since Petitioner-Municipal Corporation has adopted the recommendations of Lad-Page Committee, Respondent No.1 who submitted application dated 29 August 2017 requesting that his son (Respondent No. 2) be granted employment in the Municipal Corporation. In his application, he claimed that while working in ‘B Ward’ Drainage Cleaning Department, he executed works of closed 6 inch and 9 inch drainage pipes. He therefore requested that his son Respondent No.1, who was unemployed, be granted appointment. However Respondent No.1 did not receive any response in pursuance of his application. He therefore approached Industrial Court, Mumbai by filing Complaint (ULP) No.333 of 2017 urging that the Petitioner Municipal Corporation committed unfair labor practice under Item Nos. 5 and 9 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (MRTU & PULP Act) and sought a direction for grant of employment in favour of his son (Respondent No.2).
8. The complaint was resisted by the Petitioner Municipal Corporation by filing written statement taking a defence that the complaint was not maintainable as there was no master-servant relationship between Respondent No. 1 and the Municipal Corporation on the date of filing of the complaint. It was further contended that only employees working on the post of Plungerman (Buchvala) and Diver in Sewage department are eligible for appointment on preferential treatment case basis under Lad-Page Committee recommendations. That since Respondent No.1 was employed as Labour, he is not eligible under the scheme.
9. Both the parties led evidence in support of their respective cases. The Industrial Court passed judgment and order dated 10 January 2020 allowing the complaint of Respondents and directed Petitioner Municipal Corporation to grant employment to Respondent No.2 on preferential treatment case basis. Petitioner Municipal Corporation has challenged Industrial Court’s decision in the present petition.
10. Mr. Palshikar, the learned counsel appearing for Petitioner would contend that the complaint filed by Respondents was not maintainable as none of the Respondents were ‘workman’ within the meaning of Section 2(s) of the Industrial Disputes Act. Or ‘employee’ within the meaning of Section 3 (5) of the MRTU & PULP Act. That therefore Industrial Court did not have jurisdiction to entertain complaint of Respondents. He would further submit that Respondent No.1 is not covered by scheme for grant of (Preferencial Treatment appointment (P.T. appointment). That only Plungerman and Diver in Sewage Department are covered by the scheme. He would submit that if the order of the Industrial Court is allowed to stand, thousands of labours working in different departments of Municipal Corporation would claim compassionate appointment upon their retirement thereby completely frustrating the principle of equality enshrined under the Constitution of India. That Respondent No.1 has been paid full retirement benefits consequent to his superannuation, and that he cannot claim grant of appointment to his son as a matter of right.
11. Ms. Talekar, the learned counsel appearing for Respondent Nos.[1] and 2 would oppose the petition and support the order passed by the Industrial Court. She would submit that there is Master – Servant relationship between the Petitioner-Municipal Corporation and Respondent No.1, who is in receipt of monthly compensation. That the definition of the term ‘employee’ under the provisions of MRTU and PULP Act would also include an ex-employee. That therefore the Tribunal had jurisdiction to entertain complaint of Respondents.
12. So far as merits of the case is concerned, Ms. Talekar would submit that every Safai Kamgar engaged in different departments of Municipal Corporation is covered by the scheme for grant of P.T. appointment. She would place reliance on Circulars dated 07 September 2008, 30 July 2010 and 24 October 2008 issued by the Municipal Corporation, which, according to her, covered cases of every employee engaged in cleaning or equivalent work. She would further submit that Respondent No.1 has physically entered into gutters and drainage lines for cleaning purposes and therefore his mere designation cannot be used for denial his right to entitlement. That entitlement under the scheme would depend to nature of work performed and not designation attached to the employee. She would take me through the evidence on record for buttressing her case that Respondent No.1 did perform job of cleaning gutters and drainage lines. She would therefore pray for dismissal of the petition.
13. I have given my anxious consideration to the submissions canvassed by the learned counsels appearing for the parties and have perused documents and evidence on record with reference to the applicable law on the subject.
14. It is well settled law that compassionate appointment cannot be claimed as a matter of right. Compassionate appointment is an exception to the equality clause enshrined under Article 14 and 16 of the Constitution of India where a ward of an employee is offered appointment without participating in the selection process. Compassionate appointment, being an exception to the rule of equality, can only be granted as per scheme formulated by the employer. Courts and Tribunals cannot force an employer to appoint anyone on compassionate basis in violation of such a scheme. Therefore, the scheme formulated by an employer for grant of compassionate appointment is required to be strictly adhered to as it is not for the Courts to widen the scope of such scheme by permitting appointments in ineligible cases.
15. In this regard, useful reference can be made to some of the judgments of the Apec Court. In Umesh Kumar Nagpal v. State of Haryana, (1994) 4 SCC 138, the Apex Court has frowned upon a direction issued by the High Court to formulate a Scheme for grant of compassionate appointment on Class II post to a candidate holding higher qualifications.
7. It is needless to emphasise that the provisions for compassionate employment have necessarily to be made by the rules or by the executive instructions issued by the Government or the public authority concerned. The employment cannot be offered by an individual functionary on an ad hoc basis.
16. In Bhawani Prasad Sonkar v. Union of India, (2011) 4 SCC 209 the Apex Court has outlined the factors that are required to be borne in mind while considering a claim for compassionate appointment in Para 20 of its judgment, which reads thus:
20. Thus, while considering a claim for employment on compassionate ground, the following factors have to be borne in mind:
(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.
(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 breadwinner 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. (emphasis supplied)
17. More recently, in State of West Bengal Vs. Debabrata Tiwari, 2023 SCC Online SC 219, the Spex Court had held as under:
57. The existence of a policy issued by the State Government is a sine qua non for making appointments on compassionate basis, vide Mumtaz Yunus Mulani (Smt.) v. State of Maharashtra (supra); State Bank of India v. Surya Narain Tripathi, (2014) 15 SCC 739. The appointments must follow the stipulations made in the policy. It is therefore a no-brainer that in the absence of a policy governing compassionate appointment to posts under a local authority, no appointment could be made to such an authority on compassionate grounds.
18. Thus compassionate appointment cannot be granted contrary to the Scheme formulated by the employer. In Bhavani Prasad Sonkar Vs. Union of India & Ors., (2011) 4 SCC 209 the Apex Court has held as under-
15. Now, it is well settled that compassionate employment is given solely on humanitarian grounds with the sole object to provide immediate relief to the employee’s family to tide over the sudden financial crisis and cannot be claimed as a matter of right. Appointment based solely on descent is inimical to our Constitutional scheme, and ordinarily public employment must be strictly on the basis of open invitation of applications and comparative merit, in consonance with Articles 14 and 16 of the Constitution of India. No other mode of appointment is permissible. Nevertheless, the concept of compassionate appointment has been recognized as an exception to the general rule, carved out in the interest of justice, in certain exigencies, by way of a policy of an employer, which partakes the character of the service rules. That being so, it needs little emphasis that the scheme or the policy, as the case may be, is binding both on the employer and the employee. Being an exception, the scheme has to be strictly construed and confined only to the purpose it seeks to achieve. We do not propose to burden this judgment with reference to a long line of decisions of this Court on the point. However, in order to recapitulate the factors to be taken into consideration while examining the claim for appointment on compassionate ground, we may refer to a few decisions.
17. Similarly, in Steel Authority of India Limited Vs. Madhusudan Das & Ors.2, this Court has observed that: “This Court in a large number of decisions has held that the appointment on compassionate ground cannot be claimed as a matter of right. It must be provided for in the rules. The criteria laid down therefor viz. that the death of the sole bread earner of the family, must be established. It is meant to provide for a minimum relief. When such contentions are raised, the constitutional philosophy of equality behind making such a scheme be taken into consideration. Articles 14 and 16 of the Constitution of India mandate that all eligible candidates should be considered for appointment in the posts which have fallen vacant. Appointment on compassionate ground offered to a dependant of a deceased employee is an exception to the said rule. It is a concession, not a right.” (See also: General Manager, State Bank of India & Ors. Vs. Anju Jain[3].) In Central Bank of India Vs. Nitin, 2022 SCC OnLine SC 1873 the Apex Court has held as under-
16. 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 de hors the scheme.
20. It is well settled that compassionate appointment is an exception to the rule of equality, which enables the dependent family members of a medically incapacitated employee who has no option, but to retire, or a deceased employee, to tide over the immediate crisis caused by the incapacitation or death of the breadwinner. Compassionate Appointment excludes equally or more meritorious candidates, much in need of a job, from the zone of consideration. Consideration for compassionate appointment must, therefore, be strictly in accordance with the prevalent rules for compassionate appointment applicable to the deceased/prematurely retired employee.
22. As held by this court in State Bank of India vs. Raj Kumar reported in (2010) 11 SCC 661 cited by Mr. Debal Kumar Banerji, learned senior counsel appearing on behalf of the appellant-Bank, the claim for compassionate appointment is traceable only to the Scheme framed by the employer for such employment, and there is no right whatsoever outside such scheme. There could be no automatic appointment merely on application. The respondent-writ petitioner did not have any special claim or special right to employment as dependent family member of the retired employee.
19. After having examined scope of grant of grant of compassionate appointment or as in the present case, PT appointment, I now proceed to examine whether Respondent No.1 is eligible under the Scheme formulated by Petitioner-Municipal Corporation. Reliance is placed on three Circulars dated 07 October 2008, 24 December 2008 and 30 July 2010. By Circular dated 21 October 2007, recommendations of Lad-Page Committee were made applicable to all Safai Kamgars engaged in Solid West Department and Sewage Department of the Municipal Corporation. The Circular also refers to the meeting with the Chief Minister on 19 October 2007, under which it was agreed that the recommendations of Lad-Page Committee should also be made applicable to Plungerman (Buchvala) and Diver deployed in Sewage department. Accordingly, it was directed that the scheme be made applicable to Plungerman (Buchvala) and Diver retiring after 01 February 2008.
20. Reliance is also placed on another Circular dated 24 December 2008, by which Municipal Corporation issued a list of departments and posts to which the recommendations of Lad-Page Committee were made applicable from time to time. At serial number 6 of the said list, Sewage Department is included and posts of Plungerman (Buchvala) and Diver in that department are made eligible under the Scheme. At serial number 7 of the list, Safaigar working in all divisional offices and other departments would also be covered by scheme. The circular reads thus - “Brihan Mumbai Municipal Corporation Department of Labour Circular No. Ch.LO/21 Date: 24.12.2008 2008-2009 Subject: Grant of benefit of appointment to heirs of Saifai Kamgar in Municipal Corporation of Greater Mumbai as per recommendations of Lad-Page Committee. Reference: 1) C.E.O. dated 22.10.2007 2) C.E. dated 18.11.2007 The recommendations of Lad Page Committee are made applicable to workers performing cleaning and similar work in other units/ departments on par with workers in cleaning unit of Solid Waste Management Department of Municipal Corporation of Greater Mumbai only for department/unit and post indicated in chart below: Sr. No. Department/Unit Position/Designation
1. Solid Waste Management Motorloader, Scavenger, Halalkhor, Sweeper, Drain cleaner, Sweepercum-Halalkhor, Sweeper-cum- Draincleaner, Draincleaner-cumsweeper, Scavenger-cum-Halalkhor, Labour, Mukadam.
2. Estate Sweeper, Sweeper-cum-Halalkhor, Plungerman, Halalkhor, Draincleaner, Scavenger, Mukadam.
3. Hospital and Health Section (Including Peripherial and Special Hospital) Safaigar (Male/ Female)
4. Market Mehetar (Halalkhor), Labour-cum- Halalkhor (Male/ Female), Female Mehetar (Lady Halalkhor)
5. Education Hamal (Female Candidate Only)
6. Drainage Buchwala (Pungerman) Diver (Panbudhya)
7. All Departmental offices and all other units Except as indicated above the recommendations of Lad-Page Committee shall not be made applicable to any other post holder of any other Department/Unit other than those mentioned hereinabove. All the Heads of Units/ Heads of Departments are requested to dispose of the P T Cases in their respective Departments/Units as per the above circular.”
21. Thus, as per the Circular dated 24 December 2008, no other employee except those holding the posts listed in the said Circular is made entitled for grant of benefit of Lad-Page Committee recommendations.
22. The learned counsel for Respondents has placed strenuous reliance on the Circular dated 24 December 2008. Firstly, she has submitted that every Safai Kamgar is included in the scheme as per the said Circular. Secondly, she would submit that the opening paragraph of the circular makes every employee engaged in cleaning or ‘similar’ work eligible for Lad-Page Committee recommendations. It is based on these Circulars that Respondent No. 1 is claiming entitlement for P.T. appointment on the ground that he was engaged in cleaning activities though holding the post of labour in Sewage Department. The Tribunal has also relied heavily on Circular dated 24 December 2008 for holding Respondent eligible under the scheme.
23. However careful perusal of the Circular dated 24 December 2008 would indicate only Plungerman (Buchvala) and Diver working in Sewage Department are made eligible under the scheme. Respondent No.1 was admittedly not working as Plungerman (Buchvala) or Diver. He was also not working on the post of Safaigar or Safai Kamgar. The Circular enlists posts which fall into the ambit of the scheme. Thus, it is not the nature of work performed by an employees which is the determinative factor but the posts held by them which is relevant for the purpose of determining their coverage under the Scheme. Thus, employees holding posts not listed in the Circular dated 24 December 2008 but who may have occasionally been asked to perform the work of cleaning would not ipso facto be covered under the Scheme. Therefore, the attempt made by Respondent No.1 before the Tribunal to prove that he executed work of cleaning the drainage lines or gutters will not be a determinative factor for making him eligible under the Scheme. Even the said attempt was lame in that except a vague statement in paragraph No.8 of the affidavit in lieu of examination in chief, there is no evidence to prove that he actually executed any gutter or drainage cleaning work. On the contrary there are specific admissions both in the Statement of Claim as well as Affidavit of evidence that he was working on the post of ‘Labour’. Identity card, payment slip and other documents produced by Respondent No.1 on record also reflected his designation as ‘Labour’. In the light of this position, the burden to prove the assertion that he was deployed on the work of cleaning gutters and drainage despite designation as Labour on the shoulders of Respondent No. 1 was heavy and it cannot be said that he has been discharged the same.
24. Even if Respondent No.1 was to prove before the Industrial Court that he occasionally performed the activities of cleaning gutters or drainage, the same would not make his case any better. This because it is for the Municipal Corporation to decide the exact employees who would be covered by the scheme for grant of P.T. appointment. The Municipal Corporation has decided that only Plungerman (Buchvala) and Diver working in Sewage Department will be covered by the Scheme and that Labours working in that department would be outside the purview of the scheme. It would be outside the jurisdiction of Courts to expand the ambit of the scheme. Therefore, even if any employee proves that he executed any cleaning work while holding designation otherwise than that of Plungerman (Buchvala) or Diver, he would still be not covered by the scheme.
25. The issue also needs to be viewed from another angle. As observed, the scheme of compassionate appointment is an exception where the ward of an employee gets appointment without participating in the selection process. Such a ward actually occupies the post for which hundreds, if not thousands, of candidates would otherwise vie for. The Respondent Municipal Corporation has engaged several Labours in different departments. It may be possible that some of them may have occasionally performed some cleaning activities. Many of them may bear transfer liability from one department to another. What if a Labour claiming to have performed occasional drainage line cleaning activity gets transferred to a Garden Department, where he does not perform any cleaning/sweeping activities? Will he still be covered by the Scheme on the strength of his occasional performance of cleaning activities in Sewage department? It is because of these questions that the employer, which is a public body, cannot be faulted for identifying posts, holders of which become eligible for PT appointments.
26. Also, if nature of work performed by employees is treated as the determinative factor for deciding eligibility for PT appointment cases, discretion of superior officers will take place of definitiveness. It would then depend on discretion of an officer to certify that a particular employee holding the post of Labour or peon or Multi Tasking Staff occasionally performed cleaning of sweeping activities. It will then open up floodgates for several employees to claim that they indulged in occasional cleaning/sweeping activities and most of Group D posts in the Municipal Corporation would then become a part of hereditary appointments. In that case several Labourers/peons in the Municipal Corporation would claim PT appointments based on nature of work performed by them and most of the Group-D posts in Municipal Corporation would be filled only by P.T. appointments thereby depriving the open market candidates. It is with this objective that the scope of Scheme for grant of compassionate appointment / P.T. appointment cannot be extended by Courts beyond the one determined by an employer.
27. I am therefore of the view that Respondent No.1 is not covered by the Scheme for grant of P. T. appointment as per recommendations of Lad-Page Committee. Industrial Court has erred in holding him eligible under the Scheme even though the post occupied by him does not find place in any of the circulars relied upon by him. The Scheme was not under challenge before the Industrial Court and it was beyond its jurisdiction to expand its scope.
28. Respondent No. 1 has retired after putting in full permissible period of service. He has received full retirement benefits, including pension. Since he is not covered under the Scheme, his son cannot be granted appointment in his place.
29. Before parting, discussion on PT appointments based on Lad Page Committee recommendations, which envisage appointment to an heir or near relative even on retirement of an employee, cannot be complete without a reference a recent judgment of the Apex Court in Ahmednagar Mahanagar Palika Vs. Ahmednagar Mahanagar Palika Kamgar Union, (2022) 10 SCC 172 in which the Apex Court has made following observations-
30. These observations made by the Apex Court in Ahemadnagar Mahanagar Palika (supra) strike to the very root of PT Appointment Scheme. It is for the State Government and its Instrumentalities to take a call on continuation of the Scheme or otherwise based on the observations made by the Apex Court. Since present case involves the issue of applicability of the Scheme to Respondent No. 1 on the date of his retirement (1 September 2017), when the Scheme was undoubtedly in vogue, I need to delve further into the issue of validity of the Scheme.
31. Resultantly I find that the Industrial Court has committed jurisdictional error in holding Respondent No. 1 to be eligible for PT Appointment Scheme, warranting interference of this Court in exercise of jurisdiction under Article 227 of the Constitution of India. The order of the Industrial Court is thus indefensible. The Writ Petition is accordingly allowed and judgment and order dated 10 January 2020 passed by the Industrial Court is set aside.
32. Rule is made absolute.
SANDEEP V. MARNE, J.
VISHNU KAMBLE