Maintaining Wait List Of Candidates For Compassionate Appointment Isn't Contrary To Object For Which It Has To Be Granted: Bombay HC

The Bombay High Court held that maintaining a wait list of the candidates for compassionate appointment is not contrary to the object and purpose for which a compassionate appointment has to be granted. 

The Nagpur Bench was deciding a batch of writ petitions challenging clauses 3.11 and 3.21 of the Government Resolution issued by the Maharashtra State as regards its policy relating to the compassionate appointments were listed before a Division Bench.

A Full Bench comprising Justice Anil S. Kilor, Justice Anil L. Pansare, and Justice M.W. Chandwani observed, “The view taken in the case of Dnyaneshwar Musane (supra) by the Division Bench of this Court and other similar matters, is correct and is in consonance with the object of compassionate appointment spelt out in Umesh Kumar Nagpal (supra), Nilima Raju Khapekar (supra) and Debabrata Tiwari (supra). ... Maintaining a wait list of the candidates for compassionate appointment is not contrary to the object and purpose for which a compassionate appointment has to be granted."

Advocate Akshay M. Sudame represented the petitioners while AGP M.K. Pathan represented the respondents.

Brief Facts -

Clause 3.11 fixes the upper limits for such appointments as 45 years and it further contemplates deletion of name in the eventuality where the appointment is not made till the age of 45 years. Clause 3.21 permits substitution of name of one of the legal heirs of a person wait-listed for compassionate appointment, if he/ she passes away before the appointment is made. The Division Bench, on hearing the bunch of petitions, formed an opinion that, the judgment of the Division Bench of the Court in the case of Dnyaneshwar S/o.Ramkishan Musane v. State of Maharashtra and others, reported in 2020(5) Mh.L.J. 381, permitting substitution of name contrary to clause 3.21, does not consider the object of the policy in light of what has been held consistently in Umesh Kumar Nagpal v. State of Haryana, reported in (1994) 4 SCC 138, Nilima Raju Khapekar v. Executive Director, Bank of Baroda & Oth., reported in 2022(3) Mh.L.J. 441 and State of West Bengal v. Debabrata Tiwari, reported in AIR 2023 (SC) 1467.

In the above-mentioned backdrop, on the Division Bench’s request, the matter was referred to answer the following questions:

(i) Considering the object of compassionate appointment, to provide immediate succour to the family of the deceased employee who dies in harness, as is spelt out in Umesh Kumar Nagpal (supra), Nilima Raju Khapekar (supra) and Debabrata Tiwari (supra), whether the view taken in Dnyaneshwar Musane (supra) and in other similar matters as indicated above would be correct?

(ii) Whether the policies of the State, which provide for creating a wait list of the candidates for compassionate appointment and in cases permits substitution, even on account of crossing a particular age limit of 45 years is contrary to the object and purpose for which a compassionate apportionment has to be granted?

The High Court in the above context of the case noted, “While talking about cessation of immediacy or delay it is important to note that, one year period is provided for making an application for appointment from the date of death of the deceased employee. Whereas, the provision for condonation of delay up to 2 years makes it permissible to apply within three years if the delay is condoned. … denial to substitute the name of another member of the family only because substitution is sought on the ground that the member waitlisted has attained age of 45 years cannot be said to be justifiable in such or similar matters.”

The Court said that in a case where the applicant applied immediately on attaining age of 18 years and if he does not get employment till the age of 45 years, his name would still continue to be in the waiting list for 27 years.

“… lapse of long time in making appointment on compassionate ground and allowing substitution of name are two separate and distinct things and both cannot be intermingled to deny substitution. … the appointments in these cases were made after more than 15 years of entering the names in the waiting list”, it further noted.

The Court enunciated that seeking substitution of the name of another member in place of a member who has applied, on account of crossing the age limit of 45 years is not contrary to the object and purpose for which compassionate appointment must be granted. 

"... eventuality denial to substitute the name amounts to denial to grant compassionate appointment contrary to the scheme.… it needs to be appreciated that, compassion is the feeling that arises in witnessing another’s suffering and that motivates a desire to help and of alleviation of suffering. Hence, one cannot be permitted to act indifferently and unconcerned in the matter of compassionate appointment”, it remarked.

The Court added that as the substitution in case of death of a waitlisted member is permitted under the State's policy, resultantly the name of such substituted member will continue for long period in the waiting list.

“However, in the matters where it took a long time for the claimants to reach at the top of the waiting list to become due for appointment, the claims may be denied in view of observation made in the case of Debabrata Tiwari (Supra). But, denial of substitution of name on the said ground cannot be permitted. The proper stage in each individual case to find out whether the candidate fulfills the eligibility criteria as prescribed under the scheme or whether the claim has lost its significance because of long lapse of time, is the stage before issuance of order of appointment and not when the substitution is sought”, it observed.

The Court also said that the waiting list in the matter of compassionate appointment is nothing but a list of aspirants who are in line, which is maintained on the basis of the date of application and moreover, such list doesn’t have any fixed life after which it would lapse. It added that such list provides transparency in the process of appointment and helps the aspirants to know their status as regards the appointment.

“… it would help to eliminate any possibility of arbitrariness in appointments, particularly when such appointments take long time to come into being for the reason that such appointments are permissible only on a fixed percentage of posts of total vacancy. … It is a settled law that compassionate appointment is a concession and not a vested right. It is also a settled law that the idea of compassionate appointment is not to provide for endless compassion. Moreover, in the G.R. dated 21/09/2017 it is specifically stated that compassionate appointment cannot be claimed by way of inheritance. Therefore, it cannot be said that it would add insult to the injury if such a person who has been waitlisted continues to be so waitlisted for decades together and the policy of substitution of such a waitlisted person is permitted”, it observed.

Accordingly, the High Court answered the questions of law and directed the matter to be placed before the Division Bench.

Cause Title- Kalpana & Anr. v. The State of Maharashtra & Ors. (Neutral Citation: 2024:BHC-NAG:5826-DB)

Appearance:

Petitioners: Advocates Akshay M. Sudame, I.A. Fidvi, S.P. Bhandarkar, Sejal Lakhani, Rajnish Vyas, Sonali Saware-Gadhwe, Sapna Jadhav, Prashit Gawai, P. Raulkar, U.J. Deshpande, A.Y. Kapgate, A.H. Daga, G. G. Mishra, P.R. Agrawal, Abhay Sambre, S.S. Taram, A.W. Paunikar, N.S. Warulkar, V.D. Raut, S.A. Mohta, Kirti Deshpande, and A.M. Dixit.

Respondents: AGP M.K. Pathan, Advocates Amol Deshpande, and Shilpa Giratkar.

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