Widow Nearing Retirement Age, Bombay High Court Permits Son To Substitute Her In Compassionate Appointment Wait List

The Bombay High Court recently allowed the substitution of a 55-year-old widow of a deceased employee by their 18-year-old son in the wait list for compassionate appointment, as she would not be entitled to any retiral benefits if given the appointment.

A division bench of Justice Ravindra V Ghuge and Justice RM observed that though the widow is eligible, it would be purposeless to grant her compassionate appointment for 4-5 years, because she would not be entitled for any service or retiral benefits.

“Even if this Court was to grant compassionate appointment to the widow, being a class IV employee, she would retire at the age of 60 after putting in around 4- 5 years in employment. She would not even be entitled for pension and the moment she gets compassionate appointment, present pension payable on account of the deceased husband's service, would also stop”, the court observed.

The petitioner's father, and employee of Jalgaon Municipal Corporation, passed away on February 27, 2012, and his widow, the petitioner's mother applied for compassionate appointment. While awaiting appointment, she crossed the age of 45, and is now about 55-56 years old.

The petitioner sought his own appointment on a compassionate basis. However, the Municipal Corporation rejected his request. Thus, he filed the present petition challenging the decision of the Municipal Corporation.

The petitioner sought the quashing of the rejection communication issued by the Municipal Corporation and requested a direction to expedite the decision on his representation. Additionally, he sought the inclusion of his name in the final list of compassionate appointment waiting list.

The court noted that neither party was aware of the Central Government's policy titled "Scheme for Compassionate Appointment Under Central Government" dated August 2, 2022.

In an earlier judgment, the court has held that even if an eligible candidate becomes age barred, i.e., crosses age of 45 as per the Scheme, while awaiting appointment, the name of the candidate cannot be deleted from the wait list. Whenever the turn of such candidate arises, the candidate has to be given compassionate appointment.

However, the court decided not to apply this policy directly to the case at hand observing that it would be purposeless to grant the petitioner's mother compassionate appointment for 4-5 years, because she would not be entitled for any service or retiral benefits.

The Municipal Corporation was considering the petitioner's candidature as a new application and thus rejected it on ground of delay, as an application to substitute/replace the name of the mother with the name of the petitioner was tendered only after he became 18 years of age.

The court found the Corporation's reasoning unjustifiable, and held that the petitioner's request was not new or delayed. It was a continuation of his mother's application for substitution, which had been submitted after she crossed the age limit.

“She was under the belief that after turning 45, she did not have a right to seek compassionate appointment. Though the Petitioner's mother is eligible even today, we are exercising our extraordinary jurisdiction to replace her name with the name of the Petitioner, since the mother would be getting hardly 4-5 years as a compassionate appointee and would not be eligible for retiral benefits”, the court held.

Thus, the court decided to replace the mother's name with the petitioner's name in the compassionate appointment waiting list.

The court directed that the petitioner's name be entered at the same serial number previously occupied by his mother.

“If it is noticed that the Corporation has overlooked the Petitioner and granted appointment on compassionate basis to candidates who are below the serial number of the Petitioner's mother (at which serial number the Petitioner's name would now figure), it would amount to disobeying the orders of this Court. In the event any person below the serial number of the Petitioner's mother has been granted compassionate appointment as on date, the Petitioner would be the next candidate to be considered for such appointment.”

The court clarified that its decision was based on the peculiar facts of this case.

Case no. – Writ Petition No. 1706 of 2021

Case Title – Durgadas s/o. Sunil Saindane v. State of Maharashtra

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