Ajit B. Kadethankar, J.
1. The petitioner has put up the following prayers :
| “A. By a writ of mandamus, or any other appropriate writ, or order or directions in the like nature, the respondents may kindly be directed to appoint the petitioner on any suitable post as per her qualifications in place of her husband late Shri. Madansingh Supdu Rathod who died on 3rd February, 2019. B. By a writ of mandamus, or any other appropriate writ, or order or directions in the like nature, the respondents may kindly be directed to grant monetary benefits to the petitioner considering the date of appointment of her husband as a full time lecturer from 2002. C. By a writ of mandamus, or any other appropriate writ, or order or directions in the like nature, the respondents may kindly be directed to grant family pension and other pensionary benefits to the petitioner.” |
(a) As against the death of her husband who while working as a Lecturer in the services of respondent No. 4 succumbed to a fatal accident, the petitioner has sought directions for giving her appointment on compassionate ground on a suitable post. Another relief sought by the petitioner is for directions to grant pensionary benefits against the death of her husband by considering his initial date of appointment and in the light of the benefit of exemption from holding NET/SET qualification.
(b) The Management namely Nijampur Jaitane Shikshan Prasarak Mandal and Respondent No.4 published an advertisement on 10-12-1997 to fill up 11 Full time posts of lecturer, including one Full Time post of Lecturer in the faculty of Economics. Copy of the advertisement is annexed by the Petitioner at page No.13 (Exhibit-B).
(c) Pursuant to the advertisement, respondent No.4 conducted the selection procedure and found petitioner's husband, late Shri Madansingh Rathod, suitable for appointment as Lecturer in Economics. Vide appointment order dated 02.10.1998, late Shri Madansingh Rathod came to be appointed to the post of Lecturer in Economics. It is pertinent to note that although the selection procedure was for the post of Full-Time Lecturer in Economics, the petitioner's husband was shown to have been appointed on a part-time post. On 02.11.1999, respondent No.3 – University approved the appointment of late Shri Madansingh Rathod.
(d) In the meantime, the Respondent No.2 – the Joint Director of Education, Jalgaon approved the post held by late Mr. Rathod as a Full time post considering the workload available for full time post. Consequently on 01.07.2002, the respondent No.4 appointed late Shri Madansingh Rathod as a Full-Time Lecturer with effect from 01.07.2002. There is no dispute so far as the sequence of these events is concerned.
(e) On 26.03.2008, the University intimated respondent No.4 that late Shri Madansingh Rathod was granted exemption from clearing the NET/SET examination. It appears that full time salary approval was not granted to the appointment of late Mr. Rathod. Hence, late Shri Madansingh Rathod approached the University Grievance Committee on the ground that approval to his full-time post and salary approval was delayed. The Grievance Committee heard the parties and found that late Shri Madansingh Rathod was entitled for approval to his full-time post as Lecturer in Economics with effect from 01.07.2002.
(f) It is pertinent to note that the said approval was subject to the conditions enumerated in Government Resolution dated 08.08.1996 including the condition that Shri Rathod shall clear the NET/SET examination. Petitioner’s contention is that due to the observations in the order dated 02.05.2012, neither the pension proposal could be sanctioned nor her case was considered for appointment on compassionate ground. Hence, the petitioner has filed the present petition.
3. Submissions :
(a) Mr. Sudhir R. Barlinge, learned Advocate for the petitioner would vehemently submit that undisputedly, petitioner's husband was serving under the establishment of respondent no. 4 when he died in an accident, and his services were approved.
(b) He would further add that the petitioner's husband died on 03.02.2019. The petitioner filed her first application for compassionate appointment on 09.03.2019. That, the petitioner has convincingly demonstrated that her husband died in harness and she was carrying two children behind her deceased husband. The petitioner placed her educational qualifications before respondent No.4, thereby requesting that she be given an appointment on compassionate grounds on any suitable post. It is lastly submitted that there is no justifiable reason on the part of respondent Nos.3 and 4 to discard the petitioner's application or to keep the same pending for years together. Mr. Barlinge submits that respondent Nos.3 and 4 are empowered to appoint the petitioner on compassionate grounds, and there is no legal impediment preventing them from making such an appointment. Thus, it is submitted that the respondents be directed to appoint the petitioner on compassionate grounds to any suitable post corresponding to her educational qualifications.
(c) So far as the other relief is concerned, Mr. Barlinge relies upon two orders passed by this Court. He firstly places reliance on the order dated 12.12.2018 passed in Writ Petition No.1304 of 2016 at Aurangabad. The observations of this Court at paragraphs 3 and 4 read thus :
| “3. We have considered the submissions of the parties. The petitioner is claiming the benefit of Government Resolution dated 27th June, 2013. The husband of the petitioner was appointed on 05th August, 1996 as a lecturer in Respondent No.3 – College. It is not disputed that the appointment of the petitioner is made after following the due selection process. The communication of the University Grants Commission dated 27th March, 2010 to the Pune University refers that the University Grants Commission has granted exemption from NET examination as qualified candidate, at the relevant time, was not available. Government Resolution dated 27th June, 2013 has been interpreted by this Court at is Principal Seat in Writ Petition No.13166 of 2017 under order dated 03rd October, 2018. It has been held by this Court that as per the said Government Resolution, the State Government has exempted the lecturers appointed between 23rd October, 1992 to 3rd April, 2020 from possessing the NET/SET qualification. Appointment of the husband of the petitioner appears to have been approved even exemption has been grated by the University Grants Commission. The husband of the petitioner died on 18th September, 2013. The said Government Resolution would apply to the husband of the petitioner. The date of death and/or retirement would not make any difference. 4. In light of the above, the impugned communication is quashed and set aside. The respondents are directed to sanction the family pension to the petitioner as per the rules, after verifying all other aspects of the matter within three months from today. Writ Petition is allowed and disposed of. No costs.” |
| “5. It is to be noted that the respondent-State, through Government Resolution dated 27th February 2013, granted approval appointment of all such lecturers who were appointed during the period 23rd October 1990 to 3rd April 2002. Indisputably, petitioner's appointment is done during that period. 6. The petitioner superannuated on 20th February 2018 and made representation for grant of pensioner benefits. However, by the impugned communication the same was rejected. Hence, the petitioner approached this Court. 7. In response to the notice issued by this Court, the respondent no.3 has stated that since the petitioner was not possessing net/set, he would not be entitled to the pensionery benefits. In the reply it is stated that as per the GR dated 27th June 2013, the petitioner would be governed by the Defined Contributory Pension Scheme. 8. The issue is no more res integra. The Division Bench of this Court of which one of us (Gavai, J) was a party, through judgment and order dated 3rd October 2018 in Writ Petition No.13166/2017 (Maruti Dattatraya Patil Vs. The State of Maharashtra and ors.), has observed thus: "8. It can be thus seen that vide aforesaid G.R., the State Government has exempted the lecturers who are appointed between 23/10/1992 to 03/04/2000 and who were not possessing the net-set examination, M.Phil. and Ph.D. qualification. Only requirement is that the appointment of these lecturers is required to be made after following due selection process. The other requirement is that appointment of such lecturers ought to have been approved by the University and University should have submitted the proposal for grant of approval of such teachers to the University Grant Commission." 9. Indisputably, the petitioner's appointment is during the period exempted by the said G.R.. So not only the petitioner's appointment is approved by the University but he has also been granted exemption.” |
(e) Mr. Santosh N. Kendre, learned Assistant Government Pleader opposes the writ petition on the basis of the affidavit-in-reply filed under the seal and signature of the Joint Director, Higher Education, Jalgaon Region. The sum and substance of the defense is that the petitioner's husband was initially appointed on a part-time basis with effect from 02.10.1998. It is submitted that late Shri Madansingh Rathod was not possessing the NET/SET qualification when he was appointed. It is further submitted that the UGC withdrew its decision dated 23.02.2010 vide communication dated 03.06.2010. Since Shri Rathod was appointed as a part-time Lecturer, his pay scale was revised under the recommendations of the 7th Pay Commission applicable to part-time Lecturers and therefore, late Shri Rathod was not entitled to the salary of a Full-Time Lecturer. Mr. Kendre then relies upon Government Resolution dated 21.07.1983, which provides that the benefits of the Pension-cum-Gratuity Scheme are applicable only to employees who are full-time regular employees. Thus, it is sought to be justified that pensionary benefits could not be granted to the petitioner on account of the death of her husband.
(f) So far as the petitioner's another claim for compassionate appointment is concerned, Mr. Kendre points out two objections raised by the authorities. He submits that since Shri Rathod was appointed on a part-time basis, the scheme of compassionate appointment would not apply to the petitioner. The other objection is based upon Government Resolution dated 21.09.2017, whereby the scheme of compassionate appointment has been made applicable only to Class III and Class IV employees. The submission is that since late Shri Rathod was a Lecturer, he did not fall within the categories of Class III or Class IV employees. With these submissions, Mr. Kendre, learned Assistant Government Pleader, prays for dismissal of the writ petition.
4. Discussion and Consideration :
(a) We have heard the learned Advocate for the petitioner and the learned Assistant Government Pleader for the State at length. The Respondent no.3 University and Respondent No. 4 Institution have not recorded any objection nor have filed any reply affidavit. With their able assistance, we have perused the pleadings and the annexures thereto which are on record. Accordingly we record our observations.
Pensionary benefits
(b) The facts and the sequence of events are not in dispute. The controversy in the petition so far as pensionary benefits are concerned is narrowed down to the date of appointment of late Shri Madansingh Rathod and the nature of his post. We find that the selection procedure was lawfully conducted by respondent No.4 in the year 1997. The selection was for 11 posts including the Full-Time post of Lecturer in Economics. Pursuant to the said selection process, late Shri Madansingh Rathod came to be appointed on 02.10.1998, although he was shown to have been appointed on a part-time basis.
(c) Subsequently, vide appointment order dated 01.07.2002, Shri Rathod was appointed as a Full-Time Lecturer in Economics with effect from 01.07.2002. It is not in dispute that he was not possessing the NET/SET qualification at the relevant time. However, vide communication dated 26.03.2008, the University granted exemption to Shri Rathod in the light of the recommendations of the UGC. Keeping in mind the objection raised by learned Assistant Government Pleader about withdrawal letter dated 03.06.2010, we deem it appropriate to refer clause 15 of the crucial Government Resolution dated 27.06.2013.
(d) In the identical set of circumstances, this Court in the case of Ranpise Vijaykumar Baburao (supra) referred to the findings recorded in Writ Petition No.13166 of 2017, Maruti Dattatraya Patil vs. The State of Maharashtra and Others. The observations in Maruti Patil’ case at paragraph No.8 are as follows:
| "8. It can be thus seen that vide aforesaid G.R., the State Government has exempted the lecturers who are appointed between 23/10/1992 to 03/04/2000 and who were not possessing the net-set examination, M.Phil. and Ph.D. qualification. Only requirement is that the appointment of these lecturers is required to be made after following due selection process. The other requirement is that appointment of such lecturers ought to have been approved by the University and University should have submitted the proposal for grant of approval of such teachers to the University Grant Commission." |
(f) We have minutely gone through the letter dated 02.05.2012 issued by the University. It is not in dispute that the 1997 selection procedure was conducted for certain posts including the post on which late Mr. Rathod was appointed. The advertisement was for 1 post of full time lecturer in Economics. Pursuant to the said selection procedure, late Mr. Rathod was appointed. The letter clarifies that approval to the nature of the subject-matter post as Full Time was received from the Respondent No.2 vide letter dated 29.06.2002. Therefore, the services of late Mr. Madansingh Rathod were approved as Full time lecturer.
(g) The intention and object of the selection procedure and the subject-matter appointment is clear from its inception. In the reply affidavit it is nowhere disputed that the Management illegally sought to fill up one full time post of Lecturer in Economics. It was only the issue of full time workload sanction, which is subsequently granted. It is not the case that subsequently any separate selection procedure was conducted. We accept the arguments of Mr. Barlinge that it was for want of sanction to the workload, late Mr. Rathod was shown on part time at the relevant time, although he was selected for Full time post. The competent authority has approved late Mr. Rathod’s services as full time lecturer w.e.f. 01.07.2002. In view of this, we are of the considered view that for the purpose of the claim for pensionary benefits of late Mr. Rathod relates back to his initial date of appointment i.e. 02.11.1999.
(h) Thus, late Shri Madansingh Rathod's appointment also falls within the exempted period under the Government Resolution. In view of this, we find that the case of late Shri Madansingh Rathod is squarely covered by the view taken by this Court in the aforesaid cases. We find no reason to take a different view. Hence, we deem it appropriate to issue necessary directions to the respondents to make the pension applicable to the petitioner with applicable arrears.
Compassionate appointment
(i) Objection to the compassionate appointment relief is twofold. Firstly it is submitted that Petitioner’s husband was not a full time lecturer, and hence no such appointment could be effected. On this point, the objection in the reply affidavit is omnibus and vague. It is factually incorrect that late Shri Madansingh Rathod was not serving as a full time lecturer. It is a matter of record that he was working as a full time lecturer. His services are also approved as full time lecturer. Nothing is placed before us demonstrating distinction between a full time and a part time lecturer, as a criterion to decide a claim for compassionate appointment. We have already recorded our findings that late Mr. Madansingh Rathod’s services stand duly approved as full time lecturer. Hence this objection by the respondents stands brushed out.
(j) Secondly, reliance is placed by learned Assistant Government Pleader on Government Resolution dated 21.09.2017 to submit that compassionate appointment is applicable only to Class-III and Class-IV employees. We have gone through the said Government Resolution. It is abundantly clear that the said Government Resolution is expressly and specifically made applicable to the employees of the State Government. It is further provided that this Government Resolution shall not be applicable to other establishments mutatis mutandis.
(k) Hence, we can not accept to such objection. Learned Assistant Government Pleader has not pointed out any specific Government Resolution or legal provision which disentitles a dependent of a deceased Lecturer from claiming appointment on compassionate ground. On the other hand, an appointment on compassionate ground against death of a Teacher is permissible as per the Government Resolution dated 31.12.2002 issued by the School Education Department. In the light of any express prohibitory provision debarring the dependents of a Lecturer from seeking compassionate appointment, only the settled rule that ‘such compassionate appointment could be made only on Class-III and Class-IV post’ would prevail. We will not use our extra ordinary jurisdiction to direct the respondents ‘to give’ an appointment on compassionate ground, however directions could be issued ‘to consider’ Petitioner’s case for compassionate appointment on a ‘suitable’ vacant Class III or Class IV post subject to any waiting list of such claims, and corresponding to Petitioner’s qualification.
5. Hence we pass following order:
ORDER
I. Writ Petition is allowed;
II. Within Six weeks from receipt of the copy of this Judgment and Order, the Respondent no.4 shall prepare and submit to the Respondent no.2 through proper channel – the pension proposal against the death of late Shri Madansingh Rathod considering him a Full Time lecturer;
III. Within Twelve weeks from receipt of such proposal, the Respondent No.2 shall process and disburse the pension with arrears to the Petitioner w.e.f. 03.02.2019 i.e. the date of Shri Madansingh Rathod’s death;
IV. The Respondent No.3 shall assist to the Respondent No.2 in grant of pension to the Petitioner;
V. The Respondent No.4 to consider Petitioner’s claim for appointment on compassionate ground on any ‘suitable and vacant’ post in Class-III or Class-IV category corresponding to her qualification. Such claim shall not be discarded only on the count that late Mr. Madansingh Rathod was not a full time lecturer and/or the Government Resolution dated 27.06.2013 forbids Petitioner’s claim.
VI. Rule is made absolute in the above terms.