Judgment :- P.D. Kode, J. 1. Rule. Returnable forthwith. Heard finally by consent of parties. 2. The petitioner no.1 society registered under Bombay Public Trusts Act and so also under Society Registration Act and running petitioner no.2-college aided by respondent no.3 – State, has prayed for issuing an appropriate writ/order/direction in nature of mandamus for quashing and setting aside order dated 7.3.2007 passed by the Director, Higher Education, Pune – respondent no.1 granting approval to the appointment of widow-respondent no.4 as a Peon in petitioner no.2 college on compassionate ground on the count of her husband Late Vilas Sambhaji Vairagadwar while working with petitioner no.2 having passed on 14.12.1999. 3. Mr. Parsodkar, learned counsel for the petitioners, urged that the deceased Vilas had committed suicide on 14.12.1999 and for no reason Mr. Tejram Kawaduji Kapgate, Principal of College run by petitioner no.2 was falsely implicated and tried for abetment of said suicide. He urged that the same is self evident as ultimately he was acquitted by the Court of Sessions by the judgment and order dated 3.10.2001. 4. He urged that respondent nos.1 and 2 had sanctioned only four posts of Peons for college and five peons were already working with the college, no post of peon was vacant and/or available for appointment on such a post on compassionate ground or even otherwise when respondent no.4 had applied for such appointment. He urged that appointment for said post could not have been made even in the cases of legal representatives of employee who had met natural or accidental death during the course of employment. He urged that hence making an appointment of respondent no.4 would have been contrary to the guidelines issued by respondent no.3 and as such an appointment cannot be sought as a matter of right. 5. He urged that additionally vide order dated 29.11.2003 upon an application moved u/s 41-A of Bombay Public Trust Act against respondent no.1 by some interested persons, the Joint Charity Commissioner, Nagpur has restrained petitioner no.1, executive body headed by him from making any appointment of teaching or non-teaching staff in any of the institution run by petitioner no.1 without previous permission of concerned Education Department and/or University and the said order was confirmed by the order dated 29.4.2004 passed by this Court in Writ Petition No.277/2004. He thus contended that as such the petitioners had no power to make any appointment without such a permission being accorded by the said authorities and as such were unable to consider the application for appointment made by respondent no.4 and accordingly had communicated to respondent no.4 and so also to the authorities to whom she had complained. 6. He urged that ultimately respondent no.4 had threatened authorities to sit on hunger strike and of self-immolation. As a result thereof, respondent no.2 had given a phone call to Principal of petitioner no.2 on 26.2.2007 and gathered details about the application for appointment made by respondent no.4 and the same were duly furnished by the said Principal. He further urged that respondent no.4, issued notice to Tahsildar, Mul and the Police Station Officer, informing that on 16th March, 2007 she would be going on hunger strike until death as she has not been given appointment by the Principal. 7. He further urged that after receipt of the said information from respondent no.4, respondent no.2 issued letter dated 15th March, 2007 to petitioner no.2 for taking steps for creating a vacancy by giving the promotion to the Superintendent and further promotions to the Clerks, Senior Clerks and the Peons as Library Attendants. Also, by creating a post, the respondent no.4 be appointed and impugned letter dated 7.3.2007 accordingly issued by respondent no.1 be complied with by which, respondent no.1 had given the approval for the appointment of respondent no.4 on compassionate ground. 8. He further urged that since no post was available and furthermore respondent no.4 being born on 1.7.1966 had completed age of 40 years on 1.7.2006 and as such, according to Government Resolution dated 22.8.2005, herself having completed such age could not have been appointed on compassionate ground and as such no approval could have been given by respondent no.1. If such an approval is given under pressure, the same being illegal and contrary to the Government Resolution and law pertaining to the appointment on compassionate ground as explained by Apex Court will be required to be quashed and set aside by allowing the petition. 9. Mr. Sonak, learned AGP for respondent nos.1 to 3, stated that the petitioners were having vacant post under Class-III category though no post of Class-IV employee was vacant in the college. 9. Mr. Sonak, learned AGP for respondent nos.1 to 3, stated that the petitioners were having vacant post under Class-III category though no post of Class-IV employee was vacant in the college. The post for appointment of respondent no.4 could have been made available by (i) returning back the employees who were absorbed in the college from some other college and (ii) by promoting qualified candidate from Class-IV post to the post of Class-III. He urged that by adopting one of such a mode, respondent no.4 could have been employed on compassionate ground and by sending proposal for the same. He urged that in event of such steps being taken by the petitioners, the necessary steps would be taken by respondent nos.1 to 3. He urged that such an opinion was given by respondent no.2 vide letter dated 15.3.2007 in response to the fax letter received from petitioner no.1 and thus there was no obstruction for petitioners for filling Class -IV post. 10. He urged that respondent no.4 had applied for appointment at the age of 34 years i.e. prior to completion of 40 years of age on July, 2006 , and that the petitioners could have appointed her in terms of G.R. dated 28.1.2000. However, they have neglected to do so. The said G.R. does not support the reason advanced by the petitioners for rejection of an application on compassionate ground i.e. husband of respondent no.4 having committed suicide. He urged that the same reveals the intention of the petitioners of not appointing respondent no.4 on compassionate ground. He further urged that the petition is devoid of merit and the order impugned is perfectly legal and proper and the petition is filed for covering the lapses of the petitioner in not giving timely promotions. 11. Mr. Bhandarkar, learned counsel for respondent no. 4, submitted that petition is filed with malice and is an attempt to depress legitimate claim of respondent no.4 who is not able to fend for the family after death of her husband. He urged that Shri T.K. Kapgate, Principal of petitioner no.2 college, was responsible for death of husband of respondent no.4 and the same is evident from the fact of himself being prosecuted for commission u/s 306 of IPC. He urged that Shri T.K. Kapgate, Principal of petitioner no.2 college, was responsible for death of husband of respondent no.4 and the same is evident from the fact of himself being prosecuted for commission u/s 306 of IPC. He urged that due to the same reason he was out to see that respondent no.4 does not enter in the employment of the college and for the same purpose has illegally deferred giving the promotion to rightful person so that no post of Class-IV employee remains vacant. He urged that respondent no.2, after having taken into consideration the case of respondent no.4 and issued impugned communication granting approval to the appointment of respondent no.4 on compassionate ground. He urged that respondent no.4 is duly qualified to be appointed on compassionate ground as she fulfills the prescribed terms and conditions as stated in the said communication. He urged that the petitioners for oblique reasons are out for depriving respondent no.4 of her legitimate claim. Both of them have been prosecuted before competent forum for misappropriation and embezzlement of money pertaining to the Trust. Shri T.K. Kapgate has been dismissed from the service as a Principal of petitioner no.2 and Shri Babasaheb Wasade, President has been prosecuted before Charity Commissioner and the charges are being framed against him regarding the same. Thus, petition has been filed mischievously with malafide intention. 12. He further urged that since the impugned communication has been issued by respondent no.2 after looking into entire controversy and since appointments on compassionate ground are required to be made after following rules and regulations and the respondent no.2 having taken the care regarding the same, no fault can be found with the impugned communication. He urged that since the institution run by petitioner no.1 is the aided institution, respondent no.2 is the only competent authority to decide the course of appointment on the post of the sanctioned strength and respondent no.2 having rightly done so, petitioners have no locus standi nor any authority to defy the orders passed by respondent no.2. The petition being devoid of merits and of mischievous nature is liable to be dismissed. 13. We have heard the learned counsel for the parties and perused the record and the decisions relied upon. The petition being devoid of merits and of mischievous nature is liable to be dismissed. 13. We have heard the learned counsel for the parties and perused the record and the decisions relied upon. Since the aforesaid petition pertains to the question of an appointment on compassionate ground, it will be advantageous to bear in the mind the law regarding the same explained by the Hon’ble Apex Court in a case of Santosh Kumar Dubey .vs. State of U.P. and others, reported in (2000) 6 SCC 481 wherein the Apex Court in relation with such appointment has observed in paragraph no.11 to 13 to the following effect: “11. The very concept of giving a compassionate appointment is to tide over the financial difficulties that are faced by the family of the deceased due to the death of the earning member of the family. There is immediate loss of earning for which the family suffers financial hardship. The benefit is given so that the family can tide over such financial constraints. 12. The request for appointment on compassionate grounds should be reasonable and proximate to the time of the death of the bread earner of the family, inasmuch as the very purpose of giving such benefit is to make financial help available to the family to overcome sudden economic crisis occurring in the family of the deceased who has died in harness. But this, however, cannot be another source of recruitment. This also cannot be treated as a bonanza and also as a right to get an appointment in government service. 13. In the present case, the father of the appellant became untraceable in the year 1981 and for about 18 years, the family could survive and successfully faced and overcome the financial difficulties that they faced on missing of the earning member. That being the position, in our considered opinion, this is not a fit case for exercise of our jurisdiction. This is also not a case where any direction could be issued for giving the appellant a compassionate appointment as the prevalent rules governing the subject do not permit us for issuing any such directions. The appeal, therefore, has no merit and is dismissed.” (emphasis supplied by this Court) 14. This is also not a case where any direction could be issued for giving the appellant a compassionate appointment as the prevalent rules governing the subject do not permit us for issuing any such directions. The appeal, therefore, has no merit and is dismissed.” (emphasis supplied by this Court) 14. Similarly in a case of V. Sivamurthy .vs. State of Andhra Pradesh and others, reported in (2008) 12 SCC 730 (supra) the Apex Court while considering constitutionality and validity of appointments made on compassionate ground observed in paragraph nos.9 and 10: “9. Article 16 of the Constitution bars discrimination in employment on the ground only of descent. If the service rules or any scheme of the Government provides that whenever a government servant retires from service, one of his dependants should be given employment in his place, or provides that the children of government servants will have preference in employment, that would squarely fly in the face of prohibition on the ground of descent. Employment should not be hereditary or by succession. But where the policy provides for compassionate appointment in the case of an employee who dies in harness or an employee who is medically invalidated, such a provision is based on a classification which is not only on the ground of descent : that is death of the employee in harness, or medical invalidation of the employee while in service. 10. This Court had occasion to consider the difference between conferment of a preferential right to appointment to a family member of a government servant, merely on the ground that he happens to be a family member, and schemes relating to compassionate appointment of the dependant family members of government servants who die while in service or who are incapacitated while in service.” 15. In the said case after making such observation and after considering number of decisions delivered by the Apex Court pertaining to such appointments, the Apex Court in paragraph no.18 summarised principles relating to compassionate appointments as under: (a) Compassionate appointment based only on descent is impermissible. Appointments in public service should be made strictly on the basis of open invitation of applications and comparative merit, having regard to Articles 14 and 16 of the Constitution of India. Appointments in public service should be made strictly on the basis of open invitation of applications and comparative merit, having regard to Articles 14 and 16 of the Constitution of India. Though no other mode of appointment is permissible, appointments on compassionate grounds are a well-recognised exception to the said general rule, carved out in the interest of justice to meet certain contingencies. (b) Two well-recognised contingencies which are carved out as exceptions to the general rule are: (i) appointment on compassionate grounds to meet the sudden crisis occurring in a family on account of the death of the breadwinner while in service. (ii) appointment on compassionate ground to meet the crisis in a family on account of medical invalidation of the breadwinner. Another contingency, though less recognised, is where landholders lose their entire land for a public project, the scheme provides for compassionate appointment to members of the families of project-affected persons. (Particularly where the law under which the acquisition is made does not provide for market value and solatium, as compensation). (c) Compassionate appointment can neither be claimed, nor be granted, unless the rules governing the service permit such appointments. Such appointments shall be strictly in accordance with the scheme governing such appointments and against existing vacancies. (d) Compassionate appointments are permissible only in the case of a dependant member of the family of the employee concerned, that is, spouse, son or daughter and not other relatives. Such appointments should be only to posts in the lower category, that is, Classes III and IV posts and the crises cannot be permitted to be converted into a boon by seeking employment in Class I or II posts. (emphasis supplied by us) 16. On the backdrop of the legal position regarding appointment to be made on compassionate ground , examining the order impugned in the present petition, we are unable to persuade ourselves to find justification for the same on the count of same being passed for the purposes of appointment of respondent no.4 on compassionate basis. We are of such a considered opinion as it is undisputed that at the relevant time no post for such appointment of Class – IV employee was available with College run by petitioner no.2 and on the contrary one more person was working as such an employee in addition to four sanctioned posts. 17. We are of such a considered opinion as it is undisputed that at the relevant time no post for such appointment of Class – IV employee was available with College run by petitioner no.2 and on the contrary one more person was working as such an employee in addition to four sanctioned posts. 17. In addition to the same even considering the course suggested by respondent no.2 , the same cannot be said to be in consonance with the principles upon which such appointments on compassionate ground are permitted to be made. Needless to add that though the said principles lay that such appointments are to be primarily made for the family members of the deceased employee for meeting sudden crisis occurred on account of the death of the bread winner, still the same does not lay creation of vacancy for making such appointment. On the contrary, the principles recited hereinabove in terms reveal that the same are to be made “strictly in accordance with the same governing such appointments and against existing vacancies. Even examining the G.R. produced relating to such appointments, the same also does not contemplate creation of vacancies as suggested by respondent no.2 vide letter dated 15.3.2007. Having regard to the same, it is difficult to find any justification in the order impugned passed when there was no existing vacancy for making appointment of respondent no.4 on compassionate ground. 18. Similarly, even without going to the question of making an appointment on compassionate ground for an employee whose act has resulted in his death being somewhat tantamount to allowing his successor to draw advantage of his wrong and limiting the fact of death of husband of respondent no.4 that had occurred on 14.12.1999 and the order impugned being passed on 7.3.2007 also makes it difficult to accept the proximity or nexus in between the death occurred and the order being passed for meeting the crisis occurred thereon. Needless to add that even the GR pointed out making of an application within a period of 5 years. The said stipulation of 5 years mentioned in the said GR and the orders thereon being required to be passed immediately, considered on the backdrop of the period lapsed in between both the events, also cannot justify passing of such order or same being passed for achieving the purpose for which the appointment on compassionate ground are to be made. The said stipulation of 5 years mentioned in the said GR and the orders thereon being required to be passed immediately, considered on the backdrop of the period lapsed in between both the events, also cannot justify passing of such order or same being passed for achieving the purpose for which the appointment on compassionate ground are to be made. 19. Even with regard to the submissions that respondent no.4 had duly applied for such appointment prior to completion of age of 40 years, and hence at the time of passing of an order she had crossed such qualifying age stipulated under the scheme formulated for such appointments, would be irrelevant and no blame for the same can be given to her or no fault can be found with the order passed also does not stand to the reason. The same is obvious as the qualification prescribed will be required to be considered on the date of passing the order and not on the date of making an application for ascertaining whether she was duly qualified when the order was passed. Needless to add that respondent no.4 being not qualified for appointment on the date of passing of an order in terms of the scheme formulated under GR, passing of such an order would be the violation of the said scheme. Similarly passing of such an order being not in conformity with the scheme framed and the same being the requirement as per the observations made by the Apex Court, such an order cannot be upheld. 20. Now with regard to the submissions canvassed of Principal of College of petitioner no.2 being responsible for death of husband of respondent no.4 and/or his activities being for the purposes of putting respondent no.4 out of an employment, hardly any material has been placed to justify the drawing of such inferences. The sting, if any, of the fact of the said Principal being prosecuted by Police for commission of offence under Section 306 of IPC has been taken away by the fact of himself being acquitted by the Court of Sessions. 21. The sting, if any, of the fact of the said Principal being prosecuted by Police for commission of offence under Section 306 of IPC has been taken away by the fact of himself being acquitted by the Court of Sessions. 21. In the premises aforesaid we are unable to uphold the order impugned in the petition, in view of the same being not in conformity with the scheme for such appointments formulated by the Government and applicable for Government aided schools and so also being not in conformity with the principles upon which appointments on compassionate ground are to be made i.e. the appointments which are not a matter of right. Hence the order impugned deserves to be and accordingly, is quashed and set aside. Rule is made absolute in the above terms.