Ahmednagar Mahanagar Palika Versus Ahmednagar Mahanagar Palika Kamgar Union

Ahmednagar Mahanagar Palika Versus Ahmednagar Mahanagar Palika Kamgar Union 

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले


REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5944 OF 2022
(Arising from SLP(Civil) No.9933/2022)
Ahmednagar Mahanagar Palika …Appellant
Versus
Ahmednagar Mahanagar Palika Kamgar Union …Respondent
WITH
CIVIL APPEAL NO. 5945 OF 2022
(Arising from SLP(Civil) No.10279/2022)
J U D G M E N T
M.R. SHAH, J.
1. Feeling aggrieved and dissatisfied with the impugned common
judgment and order dated 22.03.2022 passed by the High Court of
Judicature at Bombay, Bench at Aurangabad in Writ Petition Nos.
6806/2017 & 3465/2017, by which the High Court has dismissed the
said two writ petitions preferred by the appellant herein – Ahmednagar
Mahanagar Palika, Ahmednagar and has confirmed the judgment(s) and
award(s) passed by the Industrial Court dated 16.09.2016 and
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21.09.2016 in Complaint (ULP) No. 55/2005 and Complaint (ULP) No.
83/2005 respectively, directing the Ahmednagar Mahanagar Palika to
provide compassionate appointment to the eligible heirs in accordance
with the provisions of award dated 30.03.1981 passed in Reference IT
No. 51 of 1979, the Ahmednagar Mahanagar Palika has preferred the
present appeals.
2. The facts leading to the present appeals in a nutshell are as under:
That in the year 2003, Ahmednagar Municipal Council was
converted to Ahmednagar Mahanagar Palika. At the time when the
Municipal Council was in existence, an industrial dispute was raised by
the Union being Reference IT No. 51 of 1979. Demand No. 3 was with
respect to the employment to be given to the heirs of the employees. At
the relevant time, it was agreed by the Municipal Council that the
employees in Class-IV category (if they die before their retirement) in all
departments, except Health Department, if they become invalid, or if
they retire, their heirs will be given appointment in their place.
Consequently, by judgment and award dated 30.03.1981, the Industrial
Court directed that the employees in Class-IV category, if they die before
their retirement; if they become invalid, or if they retire, their heirs should
be given appointment in their place.
2.1 It appears that thereafter some further demands were raised and
the judgment and award dated 30.03.1981 in Reference IT No. 51 of
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1979 was sought to be modified and therefore the references were made
to the Industrial Court being Reference (IT) No. 2 of 1993 to Reference
(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 instance of the
Mahanagar palika). Ahmednagar Mahanagar Palika gave a notice of
change in respect of demand of employment to the heirs of the
employees as per Reference IT No. 51 of 1979 and the said dispute was
referred for adjudication as Reference (IT) No. 2 of 1993. By judgment
and 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 category
working in health department only (2) to provide the employment to the
legal heirs of all categories, i.e., Class-I category to Class-IV category on
compassionate ground as per government resolutions and circulars at
par with government employees. Meaning thereby, under the said
award, the compassionate appointment to the heirs of the employees on
their superannuation/retirement was not provided and the
compassionate appointment was provided only to the heirs of the
deceased employees of Class-IV category.
2.2 It appears that thereafter two other industrial disputes were raised
by the Ahmednagar Mahanagar Palika Kamgar Union against the
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Municipal Corporation/Mahanagar Palika which were in the year 2005
being Complaint (ULP) No. 55 of 2005 and Complaint (ULP) No. 83 of
2005. One of the reliefs claimed was for employment for the legal heirs
of retired employees as per judgment and award dated 30.03.1981
passed 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
High Court, the Industrial Court directed the Ahmednagar Mahanagar
Palika to provide employment to the eligible heirs in accordance with the
provisions in the award passed in Reference IT No. 51 of 1979. Thus,
the Industrial Court directed to provide employment to the heirs of the
employees on their retirement on attaining the age of superannuation.
The judgment(s) and award(s) passed by the Industrial Court dated
16.09.2016 and 21.09.2016 passed in Complaint (ULP) No. 55/2005 and
Complaint (ULP) No. 83/2005 respectively were the subject matter of
writ petitions before the High Court. By the impugned common judgment
and order, the High Court has dismissed/disposed of the aforesaid writ
petitions as under:
“(a) The candidates in Annexures ‘A’ and ‘B’, who have not completed
45 years of age as on date, i.e., 01.03.2022 shall be granted
compassionate appointment on or before 30.04.2022 in the light of the
vacancies available in view of the affidavit in reply dated 21.03.2022.
(b) Those candidates who have completed 45 years of age as on
01.03.2022, would be entitled for a lump sum compensation of Rs. 5 lacs
in lieu of compassionate appointment. Such compensation amount shall
be paid, on or before 31.05.2022.
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(c) The Municipal Corporation shall issue the orders of appointments
to eligible candidates in view of the above directions, on or before
30.04.2022.”
2.3 Feeling aggrieved and dissatisfied with the impugned common
judgment and order passed by the High Court, the original writ petitioner
– Ahmednagar Mahanagar Palika through its Commissioner has
preferred the present appeals.
3. Mr. Suhas Kadam, learned Advocate has appeared on behalf of the
appellant – Ahmednagar Mahanagar Palika and Ms. Iyer Shruti Gopal,
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 Industrial Court as well
as the High Court have passed orders relying upon the judgment and
award dated 30.03.1981 passed in Reference IT No. 51 of 1979. That
the said award was passed at a time when Ahmednagar Mahanagar
Palika was a Municipal Council. In the year 2003, the Municipal Council
has been converted to a Municipal Corporation and the employees of the
Mahanagar Palika/Municipal Corporation are governed by the rules and
regulations/scheme framed by the State Government. Therefore, the
employees of the Mahanagar Palika/Municipal Corporation shall be
entitled to the benefit of the scheme of appointment on compassionate
grounds at par with the government employees. It is submitted that
therefore both, the Industrial Court as well as the High Court have
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committed a grave error in directing the Mahanagar Palika/Municipal
Corporation to give appointment to the heirs of the employees on their
retirement and/or superannuation as per judgment and award dated
30.03.1981 passed in Reference IT No. 51 of 1979, which was in the
year 1981 at the time when the Municipal Council was in existence.
3.2 Relying upon the recent decision of this Court in the case of The
Secretary to Govt. Department of Education (Primary) & Others v.
Bheemesh alias Bheemappa, 2021 SCC OnLine SC 1264, it is further
submitted that the appointment on compassionate ground shall have to
be made as per the modified scheme. It is submitted that in the present
case, subsequently by judgment and award dated 21.02.2005 passed in
Reference (IT) No. 2/1993, the Industrial Court modified the demand with
respect to employment to the heirs of the employees on their
retirement/superannuation and directed that only the legal heirs of the
deceased employees shall be entitled to appointment on compassionate
ground. Also the legal heirs of all the categories shall be entitled to
compassionate appointment as per the government resolutions and
circulars at par with the government employees. It is submitted that both,
the Industrial Court as well as the High Court have seriously erred in
directing the Mahanagar Palika to given appointment to the heirs of the
employees on their retirement/superannuation.
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3.3 It is further submitted that even otherwise such a direction to give
appointment to the heirs of the employees on their
retirement/superannuation shall be hit by Article 14 of the Constitution of
India and against the object of providing appointment on compassionate
grounds.
3.4 It is submitted that as observed and held by this Court in a catena
of decisions, the appointment on compassionate grounds is not
automatic, but subject to strict scrutiny of various parameters including
the financial position of the family, the economic dependence of the
family upon the deceased employee and such factors. It is submitted
therefore also that such a direction to give appointment to the heirs of the
employees on their retirement/superannuation ought not have been
passed by the Industrial Court, confirmed by the High Court.
3.5 It is next submitted by the learned counsel appearing on behalf of
the Mahanagar Palika/Municipal Corporation, that even otherwise, the
direction issued by the High Court to pay a lump sum compensation of
Rs. 5 lacs in lieu of the compassionate appointment to those candidates
who have completed 45 years of age as on 1.3.2022 is unsustainable.
3.6 Making the above submissions and relying upon the above
decision, it is prayed to allow the present appeals.
4. Both these appeals are vehemently opposed by learned counsel
appearing on behalf of the respondent.
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4.1 It is vehemently submitted by the learned counsel appearing on
behalf of the respondent that in the facts and circumstances of the case
and considering the binding nature of the judgment and award passed by
the Industrial Court dated 30.03.1981 in Reference IT No. 51 of 1979,
neither the Industrial Court nor the High Court have committed any error
in directing appointments to be given to the heirs of the employees on
their superannuation and/or retirement.
4.2 It is submitted that in the present case the parties are governed by
the terms of the Bipartite Agreement resulting in judgment and award
dated 30.03.1981 passed in Reference IT No. 51 of 1979. It is submitted
therefore that there is no question of any discretion and the heirs of the
employees are entitled to the appointment on compassionate grounds on
the superannuation and/or retirement of the concerned employees.
Reliance is placed on the decision of this Court in the case of Subhadra
v. Ministry of Coal and another, (2018) 11 SCC 201.
4.3 It is further submitted that as the heirs of the employees acquire
the right of appointment under the judgment and award passed in
Reference IT No. 51 of 1979, the concerned heirs of the employees are
entitled to appointment being heirs of the employees on their retirement
and/or superannuation.
4.4 It is contended that the appointment to the heirs of the employees
on their superannuation and/or retirement cannot be said to be an
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appointment on compassionate grounds but it is called varas hakka. It
is submitted that therefore any decision of this Court on compassionate
appointment shall not be applicable to the facts of the case on hand.
5. We have heard learned counsel for the respective parties at length.
At the outset, it is required to be noted that in the present case, the
Industrial Court has directed the Mahanagar Palika/Municipal
Corporation to give appointment to the heirs of the employees on their
superannuation/retirement as per judgment and award passed in
Reference IT No. 51 of 1979. However, it is required to be noted that the
said judgment and award was passed in the year 1981, at the time when
the Municipal Council was in existence. That thereafter in the year 2003,
the Municipal Council has been converted to Municipal
Corporation/Mahanagar Palika and all the employees under Mahanagar
Palika/Municipal Corporation are governed by the scheme/rules &
regulations framed by the State Government, which does not provide for
any appointment on compassionate grounds or the appointment to the
heirs 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 the notice of
change in respect of demand of employment to the heirs of the employee
as per Reference (IT) No. 51 of 1979, the Industrial Court vide judgment
and award dated 21.02.2005 directed the appointment on
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compassionate grounds to the heirs of the deceased employees only. It
was specifically observed by the Industrial Court that at the time of
passing earlier award in Reference IT No. 51 of 1979, i.e., in the year
1979 the demand to provide the employment to the legal heirs of the
employees on their retirement/superannuation was reasonable, however,
in the present situation the said demand does not appear to be good and
reasonable. The Industrial Court further observed that, needless to say,
now-a-days the unemployment problem is a very major problem and in
spite of high qualifications the qualified persons are not getting jobs and
they remain unemployed. While modifying the demand and directing to
provide appointment on compassionate grounds to the legal heirs of the
employees (on the death of the concerned employee), in judgment and
award dated 21.02.2005 in Reference IT No. 2/1993, it was observed by
the Industrial Court as under:
“It seems from the oral submissions of the parties that, at the time of
passing earlier award in Ref. (IT) No. 51/1979 i.e., in the year 1979 the
demand for providing the employment to the legal heir of employee was
reasonable however in present situation the said demand does not
appears to be good and reasonable. Needless to say, that nowadays the
unemployment problems is very major. In spite of high qualifications, the
qualified persons are not getting job and they are unemployed. In view of
this demand there is no scope for qualified unemployed person to get the
job in the establishment of the party no. 1, as the legal heirs of the
employees will get the job in place of the employee working in the
establishment of the party no. 1. Mr. Patil learned advocate for the party
no. 1 rightly submitted that on the basis of this demand the legal heirs are
claiming employment on attaining the majority and if the legal heir is minor
at the time of superannuation and that too after 10 years also under such
circumstances in my opinion also the demand of providing employment to
the legal heirs does not appears to be proper.
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It has sufficiently come on record through the oral evidence of the parties
that as per this demand the employment has been claimed as of right and
there is no scope for selection of proper candidate, even the guidelines of
the government regarding Reservation could not be followed. It is pertinent
to note here that, as per the government policy certain post in the
establishment are reserved for back ward classes and on those postemployment is to be given to the candidate from reserve category
however as there is no scope for employment to others, therefore, it is
very difficult for the candidates from reserve category to get employment in
the establishment of the party no. 1.
It has also come on record that, as per this demand the employment is
being claimed for distant relative on the basis of adoption. True it is that
the adoption can be made as per law and after adoption the adopted child
because legal heir of that person however it seems from the various
copies of documents placed before the Court that employment has been
claimed for nephew on the basis of affidavit saying that the nephew is
taking care of that employee. Similarly, in another matter the employment
is sought for adopted son by application dated 02.05.1997 and deed of
adoption has been executed on 30.04.1997.
From these documents it can be said positively that the demand or
providing employment to the legal heirs of the employees has been
misused. Furthermore, nothing has been placed on record on behalf of the
party no. 2 union that such practice is being continued in any other
establishment. The witness of the party no. 2 union specifically asked
about the however he could not brought any documentary evidence.
In my opinion also even though this demand was reasonable in 1979
however the same is certainly not reasonable and justified during present
days and in the light of misuse of the demand it can be safely said that the
party no. 1 is justified in seeking change in the demand in respect of
providing the employment to the legal heirs of the employees on
superannuation, invalidity or resignation, be now I am inclined to modify
the demand and directing the party no. 1 to provide (1) employment to the
legal heirs of the employees of Class-IV category working in health
department only (2) to provide the employment to the legal heirs of all
categories i.e. Class-I category to Class-IV category on compassionate
ground as per government Resolutions and circulars at par with
governments employees.”
In view of the above also, thereafter it was not open for the
Industrial Court and/or even the High Court to direct the Mahanagar
Palika/Municipal Corporation to provide appointment to the heirs of the
employees on their retirement/superannuation, relying upon the
11
judgment and award passed by the Industrial Court in Reference IT No.
51 of 1979.
7. After the conversion of the Municipal Council to Municipal
Corporation/Mahanagar Palika, the employees of the Mahanagar
Palika/Municipal Corporation shall be governed by the scheme framed
by the State Government and at par with the government employees. As
per the recent decision of this Court in the case of Bheemesh alias
Bheemappa (supra), the appointment on compassionate ground shall
be as per the modified scheme. Therefore, the employees of the
Mahanagar Palika/Municipal Corporation shall be governed by the
scheme of the State Government at par with the government employees,
which does not provide for appointment on compassionate grounds to
the heirs of the employees on their retirement and/or superannuation.
8. Even otherwise, such an appointment to the heirs of the
employees on their retirement and/or superannuation shall be contrary to
the object and purpose of appointment on compassionate grounds and
is hit by Article 14 of the Constitution of India. As observed and held by
this Court in a catena of decisions, compassionate appointment shall
always be treated as an exception to the normal method of recruitment.
The appointment on compassionate grounds is provided upon the death
of an employee in harness without any kind of security whatsoever. The
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appointment on compassionate grounds is not automatic and shall be
subject to the strict scrutiny of various parameters including the financial
position of the family, the economic dependence of the family upon the
deceased employee and the avocation of the other members of the
family. No one can claim to have a vested right for appointment on
compassionate grounds. Therefore, appointment on compassionate
grounds cannot be extended to the heirs of the employees on their
superannuation and/or retirement. If such an appointment is permitted,
in that case, outsiders shall never get an appointment and only the heirs
of the employees on their superannuation and/or retirement shall get an
appointment and those who are the outsiders shall never get an
opportunity to get an appointment though they may be more meritorious
and/or well educated and/or more qualified. Therefore, the submission
on behalf of the respondent that the appointment is not on
compassionate grounds but the same be called as varas hakka cannot
be accepted. Even if the same be called as varas hakka the same is
not supported by any scheme and even the same also can be said to be
violative of Article 14 as well as Article 15 of the Constitution of India.
13. In view of the above and for the reasons stated above, both the
Judgment and award passed by the Industrial Court as well as the High
Court in directing the Mahanagar Palika/ Municipal Corporation to give
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appointment to the heirs of the employees on their superannuation
and/or retirement is unsustainable and the same deserves to be
quashed and set aside.
14. In view of the above and for the reasons stated above, both these
appeals succeed. The impugned common judgment and order dated
22.03.2022 passed by the High Court as well as the judgment(s) and
award(s) dated 16.09.2016 and 21.09.2016 passed in Complaint (ULP)
No. 55/2005 and Complaint (ULP) No. 83/2005 respectively directing the
Mahanagar Palika/Municipal Corporation to appoint the heirs of the
employees on their retirement/superannuation in terms of judgment and
award dated 30.03.1981 passed in Reference IT No. 51 of 1979 are
hereby quashed and set aside.
15. Accordingly, the instant appeals are allowed in the aforesaid terms.
However, in the facts and circumstances of the case, there shall be no
order as to costs.
………………………………J.
[M.R. SHAH]
NEW DELHI; ………………………………..J.
SEPTEMBER 05, 2022. [B.V. NAGARATHNA]

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