Substituting Legal Representative Of Deceased Employee By Another For Compassionate Appointment Is legal: Bombay High Court

Background Facts

The State of Maharashtra issued Government Resolution (G.R.) regarding its policy on compassionate appointments. Clause 3.11 of G.R. set the upper age limit for compassionate appointments at 45 years and provided for the deletion of names from the waitlist if appointments were not made by the age of 45. Whereas Clause 3.21 permitted the substitution of the name of one legal heir with another in the waitlist, only if the former passed away before the appointment was made. So the name of any legal representative of a deceased employee cannot be substituted by any other legal representative seeking appointment on compassionate grounds.

The petitioners challenged these clauses before the Division bench of Bombay High Court. The division bench formed an opinion that allowing substitution of name contrary to clause 3.21, does not consider the object of the policy.

Further Division Bench referred the matter to full bench to answer the following questions: Whether prohibition on substitution of name is contrary to objective of compassionate appointment. Whether permitting substitution, even on account of crossing a particular age limit of 45 years is contrary to the purpose of compassionate apportionment.

The petitioners contended that setting the upper age limit for compassionate appointments at 45 years was arbitrary. They argued that the imposition of an age limit could unjustly exclude deserving candidates who may be older but still in need of support. They further argued that applicants who had been on the waitlist for an extended period should not be penalized by having their names removed simply because they had not been appointed before reaching a certain age. The petitioner argued that prohibition to substitute names in Clause 3.21 violated the fundamental rights guaranteed by Article 14 of the Constitution of India.

On the other hand, it was contended by the Respondents that if substitution of the name of another candidate is allowed for the reason that, the candidate had attained the age of 45, the whole process will be extended for a long period till the appointment of another candidate. They contended that permitting substitution, amounted to continuing the entitlement forever which was against the very concept of compassionate appointment.

Findings of the Court

The court observed that if the application submitted by one of the family members has already resulted in an order of appointment in favour of such an applicant, at that stage, substitution may not be permitted. However, where the application seeking appointment on compassionate basis is still pending consideration and if any application for substitution of name in place of the former one is rejected, it would amount to denial of appointment on compassionate ground contrary to the policy.

The court observed that no one can claim compassionate appointment by way of inheritance. The court observed that compassionate appointment is not a vested right or a source of endless compassion. The court relied on the case of West Bengal vs. Debabrata Tiwari, wherein the Supreme Court held that the prolonged delays in seeking or granting compassionate appointments invalidate the sense of immediate need, making such claims more about inheritance than urgent relief.

The court further observed that if a family member of the deceased employee applies for substitution of his name with another family member, it cannot be treated as a fresh application. And it cannot be implied that more than one member is seeking compassionate appointment.

The court held that a rigid approach to not allow any substitution to take place is not an appropriate measure of providing relief. The court held 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 of compassionate appointment.

The court relied on the case of Dnyaneshwar vs. State of Maharashtra, wherein the Bombay High Court held that the prohibition on substituting name of one legal representative of deceased employee for compassionate appointment, by another legal representative does not further the object of the compassionate appointments.

The court found the prohibition imposed by the G.R. regarding the substitution of names of legal representatives of deceased employees, to be arbitrary, irrational, and violated the fundamental rights guaranteed by Article 14 of the Constitution of India.

With these observations, the court directed the matter to be placed before the Division Bench for disposal in accordance with the law.

Case No. : Writ Petition No.3701/2022

Case Name : Kalpana and Ors. vs. State of Maharashtra

Counsel for the Petitioners : Akshay M. Sudame, I.A. Fidvi, S.P.Bhandarkar, Advocates

Counsel for the Respondents : M.K.Pathan, A.G.P.

Citation: 2024 LiveLaw (Bom) 290