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.

2.1It 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.

2.2It 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.”

2.3Feeling 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.

3.1Learned 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.

3.2Relying 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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3.3It 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.

3.4It 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.

3.5It 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.

3.6Making 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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4.1It 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.

4.2It 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.

4.3It 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.

4.4It 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 post-

employment 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

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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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