The State Of Maharashtra And ... vs Sanjay Jagannath Viste
2016 Latest Caselaw 4598 Bom

                                                                      WP/8460/2016
                                            1

                    IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                               BENCH AT AURANGABAD




                                                                              
                              WRIT PETITION NO. 8460 OF 2016




                                                      
     1. The State of Maharashtra
     Through its Secretary,
     Irrigation Department,
     Mantralaya, Mumbai.




                                                     
     2. The Superintending Engineer
     and Administrator,
     Command Area and
     Development Authority,




                                          
     Trimbak Road, Nasik.

     3. Executive Engineer,
                             
     Nasik Irrigation Division,
     Trimbak Road, Nasik.
                            
     4. Assistant Engineer,
     Godawari Right Side Canal,
     Sub Division, Rahata,
     District Ahmednagar.                              ..Petitioners
      


     Versus
   



     Sanjay Jagannath Viste,
     R/o Survey No.105,
     Hanuman Nagar,
     At & Post Kopargaon,





     District Ahmednagar.                              ..Respondent

                                         ...
                       AGP for Petitioners : Shri Munde S.W.
                  Advocate for Respondent : Shri Barde Parag Vijay
                                         ...





                         CORAM : RAVINDRA V. GHUGE, J.

Dated: August 10, 2016 ...

ORAL JUDGMENT :-

1. Heard learned Advocates for the respective parties.

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2. Rule.

3. By consent, Rule is made returnable forthwith and the petition

is taken up for final disposal.

4. The petitioner is aggrieved by the judgment and order dated

4.7.2015, by which, Complaint (ULP) No.3 of 2011 filed by the

respondent has been allowed and the petitioners have been directed

to re-include the name of the respondent in the Waiting List of the

candidates to be appointed on compassionate basis.

5. I have considered the strenuous submissions of the learned

AGP on behalf of the petitioners and Shri Barde, learned Advocate on

behalf of the respondent.

6. The undisputed factors in this case are as under:-

(a) The father of the respondent, namely, Jagannath Viste

was the employee of the petitioners as a Peon and was in permanent service.

(b) He died, while in service, on 24.1.2003.

(c) The respondent, who is born on 3.4.1969, filed an application dated 17.7.2003, as per the concerned

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Government Resolution applicable seeking compassionate

appointment in place of his deceased father.

(d) By the Government Resolutions, dated 22.8.2005 and 23.4.2008, the conditions applicable for compassionate appointments were improvised by the State.

(e) The respondent completed 40 years of age on 2.4.2009.

(f) The petitioners relied upon the Government Resolution dated 23.4.2008 by which, the age limit for appointing a

candidate on compassionate basis was 40 years and deleted the name of the respondent from the Waiting List solely on the

ground that he had completed 40 years of age.

(g) The Government introduced another Resolution dated

6.12.2010, by which, the age for appointment on compassionate grounds was increased to 45 years.

(h) Based on the same, the respondent preferred Complaint (ULP) No.3 of 2011 before the Industrial Court at Ahmednagar

praying for a direction to the petitioners to re-include his name.

(i) The Complaint was dismissed by the judgment dated

20.11.2013.

(j) The respondent approached this Court in Writ Petition No. 9624 of 2014 and by its judgment dated 3.11.2014, this Court (Coram : N.W.Sambre, J.), allowed the Writ Petition partly and directed the Industrial Court to decide the

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Complaint afresh.

(k) By the impugned judgment dated 4.7.2015, challenged

by the petitioners on 4.5.2016 in this petition, the Industrial Court had allowed the Complaint.

7. The petitioners have put-forth two grounds for challenging the

judgment of the Industrial Court. Firstly, that the petitioners have

not committed any ULP by deleting the name of the respondent and

secondly, there is no employer - employee relationship between the

petitioners and the respondent.

8. The Industrial Court concluded that there was notional

extension of relationship between the petitioners and the respondent

by relying upon the following three judgments:-

(i) Manish Mishra V/s State of U.P. [1998 (79) FLR 846],

(ii) Bablu Singh V/s Coal India Ltd. [2009 I CLR 568], and

(iii) Writ Petition No.38 of 2008 - Ahmednagar Municipal

Corporation V/s M.C.Galphade and others.

9. Considering the above, I do not find that the challenge posed

by the petitioner to this extent deserves to be entertained.

10. From the facts of this case, I find that the petitioners have

acted in a manner unbecoming of a model employer. There is no

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dispute that death of a parent would entitle an eligible ward to seek

compassionate appointment in his place. It is settled law that the

purpose of compassionate appointment is to render succour and

immediate relief to a family, for reducing its hardships and to ensure

that the unfortunate family would survive through the earnings on

account of compassionate appointments. Such policies are

introduced by the State Government considering the socio economic

structure. Though it is concluded that appointment on

compassionate basis is not a right, yet the conduct of the State in

depriving eligible candidates by keeping them on the wait list for

years would in fact, cause disservice to the family of the deceased

employee.

11. The Allahabad High Court in Manish Mishra case (supra) has

concluded that if the policy mandates compassionate appointment to

an eligible candidate, even if the post is not available, a

supernumerary post can be created. The Calcutta High Court in

Bablu Singh case (supra) has criticized the authorities for having

dodged the application of an eligible candidate for compassionate

appointment though he had approached the authorities within time.

It concluded that the Court cannot be a passive onlooker in the face

of the violation of the rights of an individual and natural justice.

12. This Court in the matter of Ahmednagar Municipal Corporation

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(supra) has concluded in it's order dated 18.3.2009, that an eligible

candidate can approach the Industrial Court under the Maharashtra

Recognition of Trade Unions and Prevention of Unfair Labour

Practices Act, 1971, for seeking implementation of any settlement,

agreement or award if it creates any right in him owing to the passing

away of a parent who was in service.

13. A decision by the appropriate authorities with regard to the

compassionate appointments needs to be taken with promptitude so

as to avoid frustrating the bereaved family and to avoid truncating

the rights of an eligible candidate. In the instant case, the

respondent had filed an application within seven weeks from the

date of the demise of his father. Needless to state, the death of his

father having occurred while in employment, naturally left a

vacancy. It is not the case of the petitioners that the post has been

abolished, inasmuch as, they could not have taken this stand when

the various Government Resolutions apply the scheme of

compassionate appointments to Municipal Councils / Corporations.

14. It is disturbing to note that the petitioners sat over the list for

practically six years and on the date on which the respondent

completed 40 years, i.e. 2.4.2009, the petitioners acted with electric

speed and instantly removed the name of the respondent on the very

same date. Such a conduct of the petitioners cannot be appreciated

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and deserves to be deprecated.

15. In the above backdrop, as on the one hand, I do not find that

the impugned judgment of the Industrial Court could be termed as

being perverse or erroneous, on the other hand, I find it to be a fit

case for imposing costs on the responsible authorities of the

petitioners.

16.

As such, petitioner No.2 - Superintending Engineer and

Administrator of the CADA, Trimbak Road, Nasik and Petitioner No.3

Executive Engineer, Nasik Irrigation Division, Trimbak Road, Nasik,

who were occupying the positions at the relevant time in between

2003 to 2.4.2009, need to pay the costs. Accordingly, they shall

deposit costs of Rs.10,000/- each, in this Court, from their own salary

account and not from the State exchequer, within a period of four

weeks from today. After the amount is deposited, the respondent

shall withdraw the said amount upon being duly identified by the

learned Advocate.

17. The learned AGP shall place the copy of this judgment before

the Principal Secretary to the Government of Maharashtra, Irrigation

Department, Mantralaya, Mumbai who shall ensure that the

petitioners 2 and 3, who are responsible for keeping the list pending

and for deleting the name of the respondent, notwithstanding

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whether they are presently occupying the same position or not, shall

comply with the direction of payment of costs.

18. This petition is, therefore, dismissed. Rule is discharged.

( RAVINDRA V. GHUGE, J. ) ...

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