Allowed

Sheetal Sarang Ghayatadak v. Samaj Prabodhan Sanstha through Its President and Others

Bombay HC14 Mar 2018WP/5459/2016

Case brief

AI extract

What is this about?

Writ petition seeking compassionate appointment for the petitioner following her husband's death. Court directed the Education Officer to consider her case across district schools under Government Resolution dated 31.12.2002 and disposed of the matter without deciding pension entitlement.

What did the court decide?

Directed Respondent No. 3 to consider petitioner's application for compassionate appointment in any school within the district and process approval without delay.

Sheetal Sarang Ghayatadak Vs Samaj Prabodhan… — Pension and Retirement Benefits | Bombay HC (2018)

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( 1 ) wp5459.16

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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WRIT PETITION NO. 5459 OF 2016

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Sheetal w/o. Sarang Ghayatadak..Petitioner
Age. 32 years, Occ. Nil,
R/o. Mirajgaon, Tq. Karjat,
Dist. Ahmednagar.

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Versus

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1) Samaj Prabodhan Sanstha, .. Respondents Karjat, Tq. Karjat, District – Ahmednagar, Through its President.

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2) Samartha Madhyamik Vidyalaya Karjat, Tq. Karjat, District – Ahmednagar. Through its Head Master.

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3) Education Officer (Secondary), Zilla Parishad, Ahmednagar.

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4) The State of Maharashtra Through Education and Sports Department, Mantralaya, Mumbai – 32.

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Mr.L.V. Sangit, Advocate for the petitioner.
Mr.Abhijit S. More, Advocate for respondent Nos. 1 & 2.
Mr.C.S.Kulkarni, AGP for respondent Nos. 3 and 4.

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( 2 ) wp5459.16

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CORAM : S.S.SHINDE &
S.M.GAVHANE,JJ.
 RESERVED ON :16.01.2018
 PRONOUNCED ON :14.03.2018

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JUDGMENT [PER : S.M. GAVHANE,J.] :-

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.Rule. Rule made returnable forthwith and heard
finally with the consent of learned Counsel appearing for
the parties.

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2.By this petition under Article 226 of the
Constitution of India, the petitioner has prayed for writ
of mandamus, order or direction in the nature of
mandamus, directing respondent Nos.1,2 and 3 to appoint

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her on the post of Peon on compassionate ground with
immediate effect as well as to grant other benefits
including payment of salary as per relevant pay-scale
attached to the said post by granting approval to the
said appointment by respondent Nos.3 and 4 with immediate
effect.

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3.According to the petitioner, her husband –

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Sarang Sadashiv Ghayatadak was appointed as Peon with

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respondent No.2 – School on 10.06.2000 and approval was
granted to his appointment. While on duty, her husband
met with an accident on 25.11.2011 and died on the spot.
The First Information Report came to be registered in
respect of said accident with Karjat Police Station.

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4.The petitioner further contends that she is
educated up to 10th standard in March, 2000 successfully.
She belongs to Scheduled Caste category. After death of
her husband, she is required to maintain herself and her
minor daughter – Pratina, aged six years. She is not

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having any source of income to pull on her day to day
life. Immediately after death of her husband, within two

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months, she applied to respondent Nos.1 to 3 to appoint
her on compassionate ground. Her first application was

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made on 13.01.2012 to respondent Nos.1 and 2 and
thereafter on 17.01.2012, 01.03.2013 and 13.09.2013. She

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also made representation/application to respondent No.3

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dated 13.01.2012, 17.01.2012 and 13.09.2013. However,

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respondent No.3 vide communication dated 26.12.2014

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directed respondent Nos.1 and 2 to consider application
of the petitioner for appointment on compassionate

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ground, in view of Government Resolution and the
educational qualification and submit the proposal for

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approval in approval camp. Accordingly, proposal was
submitted to the Education Officer by respondent Nos.1

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and 2 along with necessary documents and Schedule “A” &
“B”. The petitioner also obtained heirship certificate
on 11.07.2002 from the Tahsildar. However, respondent
No.2 replied to the petitioner that there is no vacant
post available in their school in Class IV category and

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therefore as and when the post would be available, the
petitioner's claim would be considered.

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5.The petitioner further contended that as her
husband was permanent in service and working since the

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year 2000, she applied for family pension to respondent
Nos.1 to 3. Respondent No.3 by communication dated

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15.11.2014 replied that as the school received 100% grant

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from March, 2007 and the employee of the school which has
received 100% grant-in-aid after 01.11.2005 is not
eligible for pension/family pension as per the Pension
Scheme, 1982, Amendment 01.11.2005.

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6.According to the petitioner, respondent No.4 –
the State of Maharashtra, published Government Resolution
dated 26.10.1994 for appointment of candidates like the
petitioner on compassionate ground. Said Government
Resolution is made applicable to the Educational
Institutions by issuing modified Government Resolution on
31.12.2002. It is specifically stated in the Schedule

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“A” of the said Government Resolution that the candidate
shall be appointed on compassionate ground as per his/her
educational qualification. Sub-Clause 6-A of Schedule

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“A” specifically states that if the post is not available
in the concerned school, the candidate can be considered
in other school run by the institution or if no post is
available in other school, then the schools run in the

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entire district where the post is available.

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7.Affidavit-in-reply is filed only on behalf of
respondent No.3 of Ramdas s/o. Piraji Khedkar, Dy.
EducationOfficer(Secondary),ZillaParishad,

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Ahmednagar. In the said affidavit it is not disputed
that husband of the petitioner was working as Peon in
respondent No.2-School and he expired on the spot in the
accident on 25.11.2011, that the petitioner has to
maintain herself, her mother-in-law and her daughter,
that the Education Officer directed respondent Nos.1 and
2 to consider application of the petitioner for
appointment on compassionate ground in view of Government
Resolution and respondent No.2-School Head Master
communicated the petitioner on 17.06.2015 that there is
no vacant post available in their school in class IV
category and therefore when the post will be available,
the petitioner's claim will be considered.

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8.As regards pension it is stated in the affidavit

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that the State Government after careful deliberation took

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policy decision of closing the old pension scheme and
introducing the defined contributory pension scheme/new
pension scheme w.e.f. 01.11.2005. The said scheme is
made applicable to the Government servants as well as the
employees of the recognized aided educational institution
and Zilla Parishad, who were recorded on or after
01.11.2005. The Government of Maharashtra in Finance
Department vide Government Resolution dated 31.10.2005
had resolved to make similar DCP Scheme applicable to the
employees appointed in the service of the State of
Maharashtra on or after 01.11.2005.

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9.The cut-off date of 01.11.2005 is providing that
only such employees, who are working on 100% aided school
prior to 01.11.2005 are entitled to the benefit of old
scheme. However, the petitioner's husband was working in
private school which was brought on 100% grant-in-aid
basis after 01.11.2005 i.e. in March, 2007 and thus, the
petitioner will get benefit of new pension contribution
scheme and not family pension under old pension scheme.

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Lastly, it is stated that there is no merit and substance
in the writ petition and that it be dismissed with costs.

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10.We have heard the learned advocate appearing for
the petitioner, learned advocate for respondent Nos.1 and
2 and learned AGP for respondent Nos.3 and 4. We have
perused the pleadings in the petition, reply affidavit
filed on behalf of respondent No.3 and the documents
produced by the petitioner.

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11.There is no dispute that the husband of the
petitioner was appointed as a peon with respondent No.2-
school on 10.06.2000 and he died in the accident on
25.11.2011 while in the service. In paragraph 7 of the
petition, the petitioner has stated that respondent No.3-
Education Officer (Secondary), Zilla Parishad, Ahmednagar
vide communication dated 15.11.2014 informed the
petitioner that her claim for family pension is rejected,
as the employee, who is eligible to receive 100% grant-

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in-aid after 01.11.2005, is not eligible for

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pension/family pension. Said letter dated 15.11.2014 of

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respondent No.3 to the Head Master of respondent No.2-

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School also shows that proposal of family pension of the
petitioner was rejected for above said reason. In such
circumstances and when the petitioner has not claimed any
directions in the petition in respect of family pension,
we do not find it necessary to consider the entitlement

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or otherwise of the petitioner to family pension as per
pension scheme prior to 01.11.2005, in detail.

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12.Now coming to the relief claimed by the
petitioner to appoint her on the post of peon on

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compassionate ground, on perusal of Government Resolution
dated 31.12.2002 regarding appointment on compassionate

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ground, it appears that said Government Resolution is
applicable to the teachers and non-teaching staff in
private (aided/unaided) schools. Schedule “A” of the

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said Government Resolution shows that application for
appointment on compassionate ground has to be made within

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three months from the date of death or premature

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retirement of the concerned employee as per clause 5-A of

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Schedule “A”, so also, as per clause 6-A of the said
schedule in office of every Education Officer, the
Education Inspector has to maintain list as per seniority

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of the application received for appointment on

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compassionate ground and while doing so, separate lists
are to be maintained for class III and class IV posts.

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As per clause 6-B of the Schedule “A” the Education
Inspector/Education Officer (Primary/Secondary), after

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scrutiny of the applications received as per seniority to
consider the eligible candidates for appointment as per

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his qualification to appoint in the same school, other

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school of the same institution, in-case in the same
school or in the same institution or other school of the

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same institution, there is no post available, the

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concerned candidate may be considered for appointment in
school of other institution in the same district etc. As

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per clause 6-C of the Schedule “A” by the end of 31st

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December, the Education Officer has to send information
of all the applications received, strength of candidates

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on wait list and strength of actually appointed
candidates to the Education Officer (Primary/Secondary)
up to 1st January every year. As per clause 8 of
Schedule “A”, while making appointment on compassionate
ground, it is not necessary to consider roster. So also

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as per clause-13 of the Schedule “A”, at the time of
appointment on compassionate ground, the district is
presumed as unit.

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13.In the present case according to the petitioner

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she applied to the Education Officer (Secondary), Zilla
Parishad, Ahmednagar on 17.01.2012, after death of her
husband on 25.11.2011. Thus, it appears that she filed
application within three months of death of her husband

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for appointment on compassionate ground. There is no
dispute that on 17.06.2015 by letter, the Head Master of
respondent No.2-School informed the petitioner that at

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that moment, there was no vacant post of class IV
employee in their school and as and when the post would

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be available, they are ready to appoint her on

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compassionate ground. Copy of said letter was given to
the Education Officer (Secondary) and President of
respondent No.1-institution. From this letter, it can be
said that there was no post of Class IV category
available with respondent No.2-School for giving
appointment to the petitioner on compassionate ground.
In the affidavit submitted on behalf of respondent No.3-

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Dy.Education Officer (Secondary), Zilla Parishad,
Ahmednagar, has not stated about the vacancy position of
Class IV posts in the district as per clause 6-A of
Schedule “A”, so as to say that there was vacancy of
class IV post in other school of same institution or in

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the school of other institution in the District, but the
petitioner was not appointed by respondent Nos.1 to 3. In

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these circumstances, instead of giving directions to
respondent Nos.1 to 3 to appoint petitioner on
compassionate ground, it is necessary to issue certain
directions to respondent No.3-Education Officer

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(Secondary) to consider case of the petitioner for

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appointment on compassionate ground.

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14.In the light of above discussion, we direct
respondent No.3-Education Officer (Secondary), Zilla
Parishad, Ahmednagar to consider the request of the
petitioner as per her applications/representations dated
13.01.2012, 17.01.2012 and 13.09.2013 in the light of
Government Resolution dated 31.12.2002 and Schedule “A”

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given in the said Government Resolution and more
particularly in the light of clauses 6,8 and 13 to
appoint the petitioner on the post of peon on
compassionate ground in respondent No.2-School of
respondent No.1 institution or in any other school of the

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said institution or other school of other institution in
the same district, as early as possible and accordingly
communicate the same to the petitioner. Respondent No.3
is further directed to process proposal for approval to
appointment of petitioner after her appointment without
delay.

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( 14 ) wp5459.16

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15.Rule made absolute in above terms. The writ
petition is disposed of. No costs.

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[S.M.GAVHANE,J.][S.S.SHINDE,J.]

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snk/2018/MAR18/ wp5459.16

Sheetal Sarang Ghayatadak v. Samaj Prabodhan Sanstha through Its President and Others

Case brief

What is this about?

What did the court decide?

Sheetal Sarang Ghayatadak v. Samaj Prabodhan Sanstha through Its President and Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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