Case Note & Summary
The petitioners, Shikshan Prasarak Mandal and Karmaveer Mahavidyalaya, Mul, challenged an order dated 7.3.2007 passed by the Director of Higher Education, Pune, granting approval to the appointment of respondent no.4, Vanita Vairagadwar, as a Peon on compassionate grounds. Respondent no.4 is the widow of Late Vilas Sambhaji Vairagadwar, who died by suicide on 14.12.1999 while working as a Peon with the petitioner college. The petitioners contended that the deceased had committed suicide and that the college Principal was falsely implicated in abetment of suicide but was acquitted by the Sessions Court on 3.10.2001. The petitioners argued that the Director had sanctioned only four posts of Peons for the college, but five Peons were already working, leaving no vacant post for appointment. They further submitted that there was no statutory scheme or rule for compassionate appointments in aided colleges, and the Government Resolution dated 5.7.2000 only applied to government departments. The respondents, including the widow and the Director, argued that the appointment was justified on compassionate grounds. The court examined the facts and found that the sanctioned strength of Peons was only four, and five Peons were already employed, meaning no vacancy existed. The court held that compassionate appointment cannot be made without a sanctioned vacant post, and in the absence of any statutory scheme for compassionate appointments in aided colleges, the Director's approval was illegal. The court quashed the order dated 7.3.2007 and allowed the petition.
Headnote
A) Service Law - Compassionate Appointment - Vacancy Requirement - Appointment on compassionate ground cannot be made unless a sanctioned vacant post exists - The Director's approval for appointment of a widow as Peon was quashed as there was no vacancy and no statutory scheme for compassionate appointments in aided colleges (Paras 5-7).
B) Service Law - Compassionate Appointment - Statutory Scheme - In the absence of a statutory scheme or rules governing compassionate appointments for employees of aided colleges, the Director cannot grant approval for such appointment - The Government Resolution dated 5.7.2000 only provided for compassionate appointments in government departments, not aided institutions (Para 6).
C) Service Law - Compassionate Appointment - Director's Powers - The Director of Higher Education cannot exercise powers under Section 3 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 to approve compassionate appointments without a sanctioned post - The approval order dated 7.3.2007 was set aside (Paras 5-7).
Issue of Consideration
Whether the Director of Higher Education could grant approval to the appointment of respondent no.4 on compassionate ground as a Peon in petitioner no.2 college when no sanctioned post of Peon was vacant and no statutory scheme for compassionate appointments existed for aided colleges.
Final Decision
The petition is allowed. The order dated 7.3.2007 passed by the Director of Higher Education, Pune granting approval to the appointment of respondent no.4 as Peon on compassionate ground is quashed and set aside. Rule is made absolute accordingly with no order as to costs.
Law Points
- Compassionate appointment cannot be made without a sanctioned vacant post
- No statutory scheme for compassionate appointments in aided colleges
- Appointment contrary to Government Resolution dated 5.7.2000
- Director's approval without verifying vacancy is illegal
Case Details
2010 LawText (BOM) (05) 54
Writ Petition No.1694 of 2007
Mr. R.S. Parsodkar for petitioners, Mr. A.D. Sonak AGP for respondent nos.1 to 3, Mr. S.P. Bhandarkar for respondent no.4, Mr. V.N. Morande for respondent no.5
Shikshan Prasarak Mandal, Mul and Karmaveer Mahavidyalaya, Mul
Director, Higher Education, Maharashtra State, Pune; Joint Director, Higher Education, Nagpur; State of Maharashtra; Vanita wd/o Vilas Vairagadwar; Tadavrao Poshettiwar College
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Nature of Litigation
Writ petition challenging the order of the Director of Higher Education granting approval to compassionate appointment of a widow as Peon in an aided college.
Remedy Sought
Quashing and setting aside the order dated 7.3.2007 passed by the Director, Higher Education, Pune granting approval to the appointment of respondent no.4 as Peon on compassionate ground.
Filing Reason
The petitioners contended that no sanctioned post of Peon was vacant and no statutory scheme for compassionate appointments existed for aided colleges.
Previous Decisions
The Director of Higher Education passed the order dated 7.3.2007 granting approval to the appointment of respondent no.4 on compassionate ground.
Issues
Whether the Director of Higher Education could grant approval to compassionate appointment when no sanctioned post was vacant?
Whether there existed any statutory scheme or rule for compassionate appointments in aided colleges?
Submissions/Arguments
Petitioners argued that the deceased committed suicide and the Principal was falsely implicated but acquitted; only four posts of Peons were sanctioned but five were already working, so no vacancy existed; no statutory scheme for compassionate appointments in aided colleges; Government Resolution dated 5.7.2000 applied only to government departments.
Respondents argued that the appointment was justified on compassionate grounds and the Director had power to approve such appointment.
Ratio Decidendi
Compassionate appointment cannot be made without a sanctioned vacant post. In the absence of any statutory scheme or rules governing compassionate appointments for employees of aided colleges, the Director of Higher Education cannot grant approval for such appointment. The Director's approval under Section 3 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 does not extend to creating appointments without a vacancy.
Judgment Excerpts
The sanctioned strength of Peons is only four and five Peons are already working with the college. Thus, there is no vacancy of Peon in the college.
In the absence of any statutory scheme or rules governing compassionate appointments for the employees of the aided colleges, the Director could not have granted approval to the appointment of respondent no.4 on compassionate ground.
The order dated 7.3.2007 passed by the Director of Higher Education, Pune granting approval to the appointment of respondent no.4 as Peon on compassionate ground is quashed and set aside.
Procedural History
The petitioners filed Writ Petition No.1694 of 2007 before the Bombay High Court, Nagpur Bench, challenging the order dated 7.3.2007 of the Director of Higher Education, Pune granting approval to the compassionate appointment of respondent no.4. The court heard the matter and reserved judgment on 29.3.2010, pronouncing it on 7.5.2010.
Acts & Sections
- Bombay Public Trusts Act:
- Society Registration Act:
- Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977: Section 3
