AHMEDNAGAR MAHANAGAR PALIKA versus AHMEDNAGAR MAHANAGAR PALIKA KAMGAR UNION on 5 September 2022

[2022] 7 S.C.R. 195

AHMEDNAGAR MAHANAGAR PALIKA

v.

AHMEDNAGAR MAHANAGAR PALIKA KAMGAR UNION

(Civil Appeal No. 5944 of 2022)

SEPTEMBER 05, 2022

[M. R. SHAH AND B. V. NAGARATHNA, JJ.]

Appointment – On Compassionate grounds – AhmednagarMunicipal Council was converted to Ahmednagar MahanagarPalika / Municipal Corporation in 2003 – When the Council was inexistence, an industrial dispute was raised by Union – One demandwas with respect to employment to be given to heirs of the employees– In 1981, the Industrial Court directed that the employees in Class-IV category, if they die before their retirement; if they becomeinvalid, or if they retire, their heirs should be given appointment intheir place – In 2005 the Industrial Court modified the earlier awardwhereby compassionate appointment to heirs of employees on theirsuperannuation /retirement was not provided and compassionateappointment was provided only to heirs of deceased employees ofClass-IV category – Two other industrial dispute were raised byAhmednagar Mahanagar Palika Kamagar Union where employmentfor heirs of retired employees as per award passed in 1981 wasclaimed – By judgment and award of 2016, the Industrial Courtdirected Ahmednagar Mahanagar Palika to provide employment toheirs of employees on their retirement on attaining the age ofsuperannuation – High Court upheld the 2016 order of the IndustrialCourt – On appeal, held : The award of 1981 was passed when theMunicipal Council was in existence – After the Municipal Councilwas converted into Municipal Corporation in 2003, its employeeswere governed by scheme framed by the State government whichdid not provide for appointment on compassionate grounds to heirsof employees on their retirement or superannuation – Evenotherwise, appointment to heirs of employees on their retirement orsuperannuation would be contrary to the object and purpose ofappointment on compassionate ground – If such an appointment ispermitted, outsiders shall never get an opportunity to get anappointment though they may be more meritorious or more qualified

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A– Such appointment would be violative of Arts. 14 and 15 of theConstitution – Constitution of India.

Allowing the appeals, the Court

HELD: 1. In the year 2003, the Municipal Council has beenconverted to Municipal Corporation /Mahanagar Palika and allBthe employees under Mahanagar Palika/Municipal Corporationare governed by the scheme/rules & regulations framed by theState Government, which does not provide for any appointmenton compassionate grounds or the appointment to the heirs of theemployees on their superannuation /retirement. It was not openCfor the Industrial Court and/or even the High Court to direct theMahanagar Palika/Municipal Corporation to provide appointmentto the heirs of the employees on their retirement/superannuation,relying upon the judgment and award passed by the IndustrialCourt in Reference IT No. 51 of 1979. [Paras 5 and 6][202-H;203-A; 205-B-C]D

2. After the conversion of the Municipal Council toMunicipal Corporation/Mahanagar Palika, the employees of theMahanagar Palika/Municipal Corporation shall be governed bythe scheme framed by the State Government and at par with thegovernment employees. The employees of the Mahanagar Palika/EMunicipal Corporation shall be governed by the scheme of theState Government at par with the government employees, whichdoes not provide for appointment on compassionate grounds tothe heirs of the employees on their retirement and/orsuperannuation. [Para 7][205-C-F]F

3. Even otherwise, such an appointment to the heirs of theemployees on their retirement and/or superannuation shall becontrary to the object and purpose of appointment oncompassionate grounds and is hit by Article 14 of the Constitutionof India. The appointment on compassionate grounds is notGautomatic and shall be subject to the strict scrutiny of variousparameters including the financial position of the family, theeconomic dependence of the family upon the deceased employeeand the avocation of the other members of the family. No one canclaim to have a vested right for appointment on compassionategrounds. Therefore, appointment on compassionate groundsH

cannot be extended to the heirs of the employees on theirsuperannuation and/or retirement. If such an appointment ispermitted, in that case, outsiders shall never get an appointmentand only the heirs of the employees on their superannuation and/or retirement shall get an appointment and those who are theoutsiders shall never get an opportunity to get an appointmentthough they may be more meritorious and/or well educated and/or more qualified. Therefore, the submission on behalf of therespondent that the appointment is not on compassionate groundsbut the same be called as varas hakka cannot be accepted. Evenif the same be called as varas hakka the same is not supportedby any scheme and even the same also can be said to be violativeof Article 14 as well as Article 15 of the Constitution of India.[Para 8][205-F-H; 206-A-C]

3. Both the Judgment and award passed by the IndustrialCourt as well as the High Court in directing the Mahanagar Palika/Municipal Corporation to give appointment to the heirs of theemployees on their superannuation and/or retirement isunsustainable. [Para 9][206-C-D]

The Secretary to Govt. Department of Education(Primary) & Others v. Bheemesh alias Bheemappa, 2021SCC OnLine SC 1264 and Subhadra v. Ministry ofCoal and Another (2018) 11 SCC 201- referred to.

Case Law Reference

(2018) 11 SCC 201referred toPara 4.2

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5944of 2022.

From the Judgment and Order dated 22.03.2022 of the High Courtof Judicature at Bombay Bench at Aurangabad in Writ Petition No.6806 of 2017.

With

Civil Appeal No.5945 of 2022.

Suhas Kadam, M/s Black & White Solicitors, Advs. for theAppellant.

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AMs. Iyer Shruti Gopal, Anandh K., Ms. Anchal Raj, Advs. for theRespondent.

The Judgment of the Court was delivered by

M. R. SHAH, J.B1. Feeling aggrieved and dissatisfied with the impugned commonjudgment and order dated 22.03.2022 passed by the High Court ofJudicature at Bombay, Bench at Aurangabad in Writ Petition Nos. 6806/2017 & 3465/2017, by which the High Court has dismissed the said twowrit petitions preferred by the appellant herein – Ahmednagar MahanagarPalika, Ahmednagar and has confirmed the judgment(s) and award(s)Cpassed by the Industrial Court dated 16.09.2016 and 21.09.2016 inComplaint (ULP) No. 55/2005 and Complaint (ULP) No. 83/2005respectively, directing the Ahmednagar Mahanagar Palika to providecompassionate appointment to the eligible heirs in accordance with theprovisions of award dated 30.03.1981 passed in Reference IT No. 51 ofD1979, the Ahmednagar Mahanagar Palika has preferred the presentappeals.2. The facts leading to the present appeals in a nutshell are asunder:

That in the year 2003, Ahmednagar Municipal Council wasEconverted to Ahmednagar Mahanagar Palika. At the time when theMunicipal Council was in existence, an industrial dispute was raised bythe Union being Reference IT No. 51 of 1979. Demand No. 3 was withrespect to the employment to be given to the heirs of the employees. Atthe relevant time, it was agreed by the Municipal Council that theFemployees in Class-IV category (if they die before their retirement) inall departments, except Health Department, if they become invalid, or ifthey retire, their heirs will be given appointment in their place.Consequently, by judgment and award dated 30.03.1981, the IndustrialCourt directed that the employees in Class-IV category, if they die beforetheir retirement; if they become invalid, or if they retire, their heirs shouldGbe given appointment in their place.

2.1 It appears that thereafter some further demands were raisedand the judgment and award dated 30.03.1981 in Reference IT No. 51of 1979 was sought to be modified and therefore the references weremade to the Industrial Court being Reference (IT) No. 2 of 1993 toHReference (IT) No. 4 of 1993. Demand No. 4 was with respect to the employment of the heirs of the employees (the same was at the instanceof the Mahanagar palika). Ahmednagar Mahanagar Palika gave a noticeof change in respect of demand of employment to the heirs of theemployees as per Reference IT No. 51 of 1979 and the said dispute wasreferred for adjudication as Reference (IT) No. 2 of 1993. By judgmentand award dated 21.02.2005, with respect to the aforesaid Demand No.4, the Industrial Court modified the earlier award in Reference IT No.51 of 1979 and directed the Ahmednagar Mahanagar Palika to provide(1) employment to the legal heirs of the employees of Class-IV categoryworking in health department only (2) to provide the employment to thelegal heirs of all categories, i.e., Class-I category to Class-IV categoryon compassionate ground as per government resolutions and circulars atpar with government employees. Meaning thereby, under the said award,the compassionate appointment to the heirs of the employees on theirsuperannuation/retirement was not provided and the compassionateappointment was provided only to the heirs of the deceased employeesof Class-IV category.

2.2 It appears that thereafter two other industrial disputes wereraised by the Ahmednagar Mahanagar Palika Kamgar Union againstthe Municipal Corporation/Mahanagar Palika which were in the year2005 being Complaint (ULP) No. 55 of 2005 and Complaint (ULP) No.83 of 2005. One of the reliefs claimed was for employment for the legalheirs of retired employees as per judgment and award dated 30.03.1981passed in Reference IT No. 51 of 1979. By judgment(s) and award(s)dated 16.09.2016 and 21.09.2016 respectively, impugned before the HighCourt, the Industrial Court directed the Ahmednagar Mahanagar Palikato provide employment to the eligible heirs in accordance with theprovisions in the award passed in Reference IT No. 51 of 1979. Thus,the Industrial Court directed to provide employment to the heirs of theemployees on their retirement on attaining the age of superannuation.The judgment(s) and award(s) passed by the Industrial Court dated16.09.2016 and 21.09.2016 passed in Complaint (ULP) No. 55/2005and Complaint (ULP) No. 83/2005 respectively were the subject matterof writ petitions before the High Court. By the impugned commonjudgment and order, the High Court has dismissed/disposed of theaforesaid writ petitions as under:

“(a) The candidates in Annexures ‘A’ and ‘B’, who have notcompleted 45 years of age as on date, i.e., 01.03.2022 shall be AB

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Agranted compassionate appointment on or before 30.04.2022 inthe light of the vacancies available in view of the affidavit in replydated 21.03.2022.

(b) Those candidates who have completed 45 years of age as on01.03.2022, would be entitled for a lump sum compensation ofBRs. 5 lacs in lieu of compassionate appointment. Such compensationamount shall be paid, on or before 31.05.2022.

(c) The Municipal Corporation shall issue the orders ofappointments to eligible candidates in view of the above directions,on or before 30.04.2022.”

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2.3 Feeling aggrieved and dissatisfied with the impugned commonjudgment and order passed by the High Court, the original writ petitioner– Ahmednagar Mahanagar Palika through its Commissioner haspreferred the present appeals.

3. Mr. Suhas Kadam, learned Advocate has appeared on behalfDof the appellant – Ahmednagar Mahanagar Palika and Ms. Iyer ShrutiGopal, learned Advocate has appeared on behalf of the respondent –Union.

3.1 Learned counsel appearing on behalf of the appellant –Mahanagar Palika has vehemently submitted that both, the IndustrialECourt as well as the High Court have passed orders relying upon thejudgment and award dated 30.03.1981 passed in Reference IT No. 51of 1979. That the said award was passed at a time when AhmednagarMahanagar Palika was a Municipal Council. In the year 2003, theMunicipal Council has been converted to a Municipal Corporation andFthe employees of the Mahanagar Palika/Municipal Corporation aregoverned by the rules and regulations/scheme framed by the StateGovernment. Therefore, the employees of the Mahanagar Palika/Municipal Corporation shall be entitled to the benefit of the scheme ofappointment on compassionate grounds at par with the governmentemployees. It is submitted that therefore both, the Industrial Court asGwell as the High Court have committed a grave error in directing theMahanagar Palika/Municipal Corporation to give appointment to the heirsof the employees on their retirement and/or superannuation as perjudgment and award dated 30.03.1981 passed in Reference IT No. 51of 1979, which was in the year 1981 at the time when the MunicipalCouncil was in existence.H

3.2 Relying upon the recent decision of this Court in the case ofThe Secretary to Govt. Department of Education (Primary) & Othersv. Bheemesh alias Bheemappa, 2021 SCC OnLine SC 1264, it isfurther submitted that the appointment on compassionate ground shallhave to be made as per the modified scheme. It is submitted that in thepresent case, subsequently by judgment and award dated 21.02.2005passed in Reference (IT) No. 2/1993, the Industrial Court modified thedemand with respect to employment to the heirs of the employees ontheir retirement/superannuation and directed that only the legal heirs ofthe deceased employees shall be entitled to appointment on compassionateground. Also the legal heirs of all the categories shall be entitled tocompassionate appointment as per the government resolutions andcirculars at par with the government employees. It is submitted thatboth, the Industrial Court as well as the High Court have seriously erredin directing the Mahanagar Palika to given appointment to the heirs ofthe employees on their retirement/superannuation.

3.3 It is further submitted that even otherwise such a direction togive appointment to the heirs of the employees on their retirement/superannuation shall be hit by Article 14 of the Constitution of India andagainst the object of providing appointment on compassionate grounds.

3.4 It is submitted that as observed and held by this Court in acatena of decisions, the appointment on compassionate grounds is notautomatic, but subject to strict scrutiny of various parameters includingthe financial position of the family, the economic dependence of thefamily upon the deceased employee and such factors. It is submittedtherefore also that such a direction to give appointment to the heirs ofthe employees on their retirement/superannuation ought not have beenpassed by the Industrial Court, confirmed by the High Court.

3.5 It is next submitted by the learned counsel appearing on behalfof the Mahanagar Palika/Municipal Corporation, that even otherwise,the direction issued by the High Court to pay a lump sum compensationof Rs. 5 lacs in lieu of the compassionate appointment to those candidateswho have completed 45 years of age as on 1.3.2022 is unsustainable.

3.6 Making the above submissions and relying upon the abovedecision, it is prayed to allow the present appeals.

4. Both these appeals are vehemently opposed by learned counselappearing on behalf of the respondent.

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A4.1 It is vehemently submitted by the learned counsel appearingon behalf of the respondent that in the facts and circumstances of thecase and considering the binding nature of the judgment and award passedby the Industrial Court dated 30.03.1981 in Reference IT No. 51 of1979, neither the Industrial Court nor the High Court have committedany error in directing appointments to be given to the heirs of theBemployees on their superannuation and/or retirement.

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4.2 It is submitted that in the present case the parties are governedby the terms of the Bipartite Agreement resulting in judgment and awarddated 30.03.1981 passed in Reference IT No. 51 of 1979. It is submittedtherefore that there is no question of any discretion and the heirs of theCemployees are entitled to the appointment on compassionate grounds onthe superannuation and/or retirement of the concerned employees.Reliance is placed on the decision of this Court in the case of Subhadrav. Ministry of Coal and another, (2018) 11 SCC 201.

4.3 It is further submitted that as the heirs of the employees acquireDthe right of appointment under the judgment and award passed inReference IT No. 51 of 1979, the concerned heirs of the employees areentitled to appointment being heirs of the employees on their retirementand/or superannuation.

4.4 It is contended that the appointment to the heirs of theEemployees on their superannuation and/or retirement cannot be said tobe an appointment on compassionate grounds but it is called varashakka. It is submitted that therefore any decision of this Court oncompassionate appointment shall not be applicable to the facts of thecase on hand.F5. We have heard learned counsel for the respective parties atlength.

At the outset, it is required to be noted that in the present case,the Industrial Court has directed the Mahanagar Palika/MunicipalCorporation to give appointment to the heirs of the employees on theirGsuperannuation/retirement as per judgment and award passed inReference IT No. 51 of 1979. However, it is required to be noted thatthe said judgment and award was passed in the year 1981, at the timewhen the Municipal Council was in existence. That thereafter in theyear 2003, the Municipal Council has been converted to MunicipalCorporation/Mahanagar Palika and all the employees under MahanagarH

Palika/Municipal Corporation are governed by the scheme/rules &regulations framed by the State Government, which does not provide forany appointment on compassionate grounds or the appointment to theheirs of the employees on their superannuation/retirement.

6. Even otherwise, it is required to be noted that in Reference(IT) No. 2/1993, which was at the instance of Mahanagar Palika on thenotice of change in respect of demand of employment to the heirs of theemployee as per Reference (IT) No. 51 of 1979, the Industrial Courtvide judgment and award dated 21.02.2005 directed the appointment oncompassionate grounds to the heirs of the deceased employees only. Itwas specifically observed by the Industrial Court that at the time ofpassing earlier award in Reference IT No. 51 of 1979, i.e., in the year1979 the demand to provide the employment to the legal heirs of theemployees on their retirement/superannuation was reasonable, however,in the present situation the said demand does not appear to be good andreasonable. The Industrial Court further observed that, needless to say,now-a-days the unemployment problem is a very major problem and inspite of high qualifications the qualified persons are not getting jobs andthey remain unemployed. While modifying the demand and directing toprovide appointment on compassionate grounds to the legal heirs of theemployees (on the death of the concerned employee), in judgment andaward dated 21.02.2005 in Reference IT No. 2/1993, it was observedby the Industrial Court as under:

“It seems from the oral submissions of the parties that, at the timeof passing earlier award in Ref. (IT) No. 51/1979 i.e., in the year1979 the demand for providing the employment to the legal heir ofemployee was reasonable however in present situation the saiddemand does not appears to be good and reasonable. Needless tosay, that nowadays the unemployment problems is very major. Inspite of high qualifications, the qualified persons are not gettingjob and they are unemployed. In view of this demand there is noscope for qualified unemployed person to get the job in theestablishment of the party no. 1, as the legal heirs of the employeeswill get the job in place of the employee working in theestablishment of the party no. 1. Mr. Patil learned advocate forthe party no. 1 rightly submitted that on the basis of this demandthe legal heirs are claiming employment on attaining the majorityand if the legal heir is minor at the time of superannuation and that A

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too after 10 years also under such circumstances in my opinionalso the demand of providing employment to the legal heirs doesnot appears to be proper.

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It has sufficiently come on record through the oral evidence ofthe parties that as per this demand the employment has beenclaimed as of right and there is no scope for selection of propercandidate, even the guidelines of the government regardingReservation could not be followed. It is pertinent to note herethat, as per the government policy certain post in the establishmentare reserved for back ward classes and on those post-employmentis to be given to the candidate from reserve category however asthere is no scope for employment to others, therefore, it is verydifficult for the candidates from reserve category to getemployment in the establishment of the party no. 1.

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It has also come on record that, as per this demand the employmentis being claimed for distant relative on the basis of adoption. TrueDit is that the adoption can be made as per law and after adoptionthe adopted child because legal heir of that person however itseems from the various copies of documents placed before theCourt that employment has been claimed for nephew on the basisof affidavit saying that the nephew is taking care of that employee.ESimilarly, in another matter the employment is sought for adoptedson by application dated 02.05.1997 and deed of adoption hasbeen executed on 30.04.1997.

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From these documents it can be said positively that the demandor providing employment to the legal heirs of the employees hasFbeen misused. Furthermore, nothing has been placed on recordon behalf of the party no. 2 union that such practice is beingcontinued in any other establishment. The witness of the partyno. 2 union specifically asked about the however he could notbrought any documentary evidence.

In my opinion also even though this demand was reasonable in1979 however the same is certainly not reasonable and justifiedduring present days and in the light of misuse of the demand it canbe safely said that the party no. 1 is justified in seeking change inthe demand in respect of providing the employment to the legalheirs of the employees on superannuation, invalidity or resignation, G

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be now I am inclined to modify the demand and directing theparty no. 1 to provide (1) employment to the legal heirs of theemployees of Class-IV category working in health departmentonly (2) to provide the employment to the legal heirs of all categoriesi.e. Class-I category to Class-IV category on compassionateground as per government Resolutions and circulars at par withgovernments employees.”

In view of the above also, thereafter it was not open for theIndustrial Court and/or even the High Court to direct the MahanagarPalika/Municipal Corporation to provide appointment to the heirs of theemployees on their retirement/superannuation, relying upon the judgmentand award passed by the Industrial Court in Reference IT No. 51 of1979.

7. After the conversion of the Municipal Council to MunicipalCorporation/Mahanagar Palika, the employees of the Mahanagar Palika/Municipal Corporation shall be governed by the scheme framed by theState Government and at par with the government employees. As perthe recent decision of this Court in the case of Bheemesh aliasBheemappa (supra), the appointment on compassionate ground shallbe as per the modified scheme. Therefore, the employees of theMahanagar Palika/Municipal Corporation shall be governed by thescheme of the State Government at par with the government employees,which does not provide for appointment on compassionate grounds tothe heirs of the employees on their retirement and/or superannuation.

8. Even otherwise, such an appointment to the heirs of theemployees on their retirement and/or superannuation shall be contraryto the object and purpose of appointment on compassionate grounds andis hit by Article 14 of the Constitution of India. As observed and held bythis Court in a catena of decisions, compassionate appointment shallalways be treated as an exception to the normal method of recruitment.The appointment on compassionate grounds is provided upon the deathof an employee in harness without any kind of security whatsoever.The appointment on compassionate grounds is not automatic and shallbe subject to the strict scrutiny of various parameters including thefinancial position of the family, the economic dependence of the familyupon the deceased employee and the avocation of the other members ofthe family. No one can claim to have a vested right for appointment oncompassionate grounds. Therefore, appointment on compassionate AB

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Agrounds cannot be extended to the heirs of the employees on theirsuperannuation and/or retirement. If such an appointment is permitted,in that case, outsiders shall never get an appointment and only the heirsof the employees on their superannuation and/or retirement shall get anappointment and those who are the outsiders shall never get an opportunityto get an appointment though they may be more meritorious and/or wellBeducated and/or more qualified. Therefore, the submission on behalf ofthe respondent that the appointment is not on compassionate groundsbut the same be called as varas hakka cannot be accepted. Even if thesame be called as varas hakka the same is not supported by any schemeand even the same also can be said to be violative of Article 14 as wellCas Article 15 of the Constitution of India.

9. In view of the above and for the reasons stated above, both theJudgment and award passed by the Industrial Court as well as the HighCourt in directing the Mahanagar Palika/ Municipal Corporation to giveappointment to the heirs of the employees on their superannuation and/Dor retirement is unsustainable and the same deserves to be quashed andset aside.

10. In view of the above and for the reasons stated above, boththese appeals succeed. The impugned common judgment and order dated22.03.2022 passed by the High Court as well as the judgment(s) andEaward(s) dated 16.09.2016 and 21.09.2016 passed in Complaint (ULP)No. 55/2005 and Complaint (ULP) No. 83/2005 respectively directingthe Mahanagar Palika/Municipal Corporation to appoint the heirs of theemployees on their retirement/superannuation in terms of judgment andaward dated 30.03.1981 passed in Reference IT No. 51 of 1979 arehereby quashed and set aside.F

11. Accordingly, the instant appeals are allowed in the aforesaidterms. However, in the facts and circumstances of the case, there shallbe no order as to costs.

GBibhuti Bhushan Bose

(Assisted by : Shubhanshu Das, LCRA)

Appeals allowed.

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