Mohammad Suleman Gani vs The State Of Mah & 2 Others
2017 Latest Caselaw 5956 Bom

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                                                              wp612.04.odt

   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
             NAGPUR BENCH, NAGPUR

                   Writ Petition No.612 of 2004

  Mohammad Suleman Gani,
  Aged about 32 years,
  R/o Veterinary Bus Stop,
  C.P.W.D. Colony, Nagpur.                         ... Petitioner

        Versus

  1. The State of Maharashtra,
     through its Secretary,
     Law and Judiciary Department,
     Mantralaya, Mumbai-32.

  2. The Registrar General,
     The High Court of Judicature at
     Bombay.

  3. The Honourable District and 
     Sessions Judge, Nagpur,
     District Nagpur.                              ... Respondents


  Shri Prashant Shende, Advocate for Petitioner.
  Shri Firdos Mirza, Advocte for Respondent Nos.2 and 3.


               Coram : R.K. Deshpande & Manish Pitale, JJ.

Date : 16th August, 2017

Oral Judgment (Per R.K. Deshpande, J.) :

1. By this petition, the petitioner challenges the rejection of

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his application for grant of employment on compassionate

ground on the post of Peon or Watchman. He also seeks a

direction to the respondents to produce the copy of the

communication dated 7-6-2003 issued by the Additional

Registrar (Administration) in the name of the District & Sessions

Judge at Nagpur informing that the Hon'ble the Chief Justice has

rejected the request of the petitioner for grant of employment on

compassionate ground on the post of Peon or Watchman.

2. Initially, the notice was issued by this Court on

8-3-2004. Thereafter, the time was granted to the respondent

Nos.2 and 3 to file reply. The matter was admitted on 3-8-2004,

and since then, it is pending for adjudication. It seems that

earlier the matter was transferred to Mumbai and subsequently it

was re-transferred to Nagpur.

3. The father of the petitioner - Mohammad Usman Gani

was working as Peon in this Court and subsequently he was

transferred to the District & Sessions Court at Nagpur, where he

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worked up to 11-3-2002, on which date he was retired

compulsorily on medical grounds. The father of the petitioner

had completed the service of 57 years, 8 months and 10 days.

4. The petitioner made an application on 9-7-2002 to the

respondent No.3-District & Sessions Judge at Nagpur for

providing an employment on compassionate ground in

accordance with the Scheme. Pending this application, a revised

Scheme for employment on compassionate ground, styled as

"The Bombay High Court Revised Guidelines for Appointment on

Compassionate Ground, 2002" was brought into force with effect

from 28-11-2002. The petitioner was asked to submit an

application under the said Scheme, which was rejected on 3-6-

2003 by the Hon'ble the Chief Justice of this Court. Though the

decision was communicated to the District & Sessions Judge at

Nagpur under the covering letter dated 7-6-2003, the copy

thereof was not supplied to the petitioner. In this background,

the present petition was filed asking for a direction to the

respondents to produce the said communication dated 7-6-2003.

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5. On 4-7-2017, we heard this matter and passed an order

as under :

" The petitioner is challenging the rejection of his application for grant of employment on compassionate ground on the post of 'Peon' or 'Watchman' in the services of the District Court at Nagpur. The petitioner claims that his father was working as 'Peon' in the District Court at Nagpur on substantive appointment and he was permitted to retire from service on invalid pension at the age of 55 years with effect from 11-03-2002, keeping in view of the certificate dated 07-03-2002 issued by the Medical Board, Government Medical and Hospital, Nagpur. The petitioner submitted an application for employment on compassionate ground on 09-07-2002. The petitioner was, thereafter, asked to submit fresh application for appointment on compassionate ground as per the revised Scheme known as "The Bombay High Court Revised Guidelines for Appointment on Compassionate Ground, 2002". The petitioner, accordingly, submitted his another application dated 10-04-2003 and it is rejected on the ground that as per the aforesaid Scheme which was brought into force on 28-11-2002, the petitioner was not entitled to get the employment on compassionate ground

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because the father of the petitioner had attained the age of 57 years in Group "D" post at the time of submitting an application for retirement on invalid pension.

2] Prima facie, the question involved is whether the Scheme brought into force with effect from 28-11-2002 was applicable to the case of the petitioner whose father was permitted to retire on invalid pension on 11-03-2002 and the petitioner had submitted an application for employment on compassionate ground on 09-07-2002.

3] We expect from the respondent nos.1 and 2 to produce before us the Scheme which was prevailing for appointment on compassionate ground prior to 2002 and a revised Scheme brought into force in the year 2002.

               4]        Put up this matter in the next week.


               5]        Steno copy of this order be provided to the learned  

Assistant Government Pleader appearing for the respondents to act upon."

6. The matter was thereafter listed before this Court on

11-7-2017, when we again passed a speaking order, and

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paras 2 and 3 being relevant, are reproduced below :

"2] Today, Shri Maldhure, the learned Assistant Government Pleader informs us that he has received the instructions from the Registrar of the High Court in the Bench at Nagpur that the steps are being taken to engage Panel Counsel in this matter. However, no one appears for the respondent nos.2 and 3 seeking time in this matter. The order impugned dated 12-06-2003 at Annexure-VI to the petition does not indicate any reason for rejection of the claim and it refers to the Confidential Letter dated 07-06-2003. Alongwith the affidavit-in-reply filed by respondent nos.2 and 3 in this petition, no documents are placed on record. The question involved in this petition is already stated in the order reproduced above. In the light of that, the respondent nos.2 and 3 are required to file an affidavit."

"3] In addition to the scheme which we have directed to be placed on record by the respondent nos.2 and 3, we also direct them to produce before us the confidential communication dated 07-06-2003 referred to in the order impugned in this petition. The respondent No.2 and 3 ought to have produced earlier Scheme on record along

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with the decision rejecting the claim. Though matter is pending since 2004, the factual aspect is not disclosed fully. Though no one appears on behalf of the respondent nos.2 and 3, we grant them one month's time to file an affidavit in this matter and to keep the concerned record available for perusal by this Court. If the affidavit is not filed within a stipulated period, the respondent nos.2 and 3 shall pay costs of Rs.5000/- to the petitioner."

7. In response to the aforesaid order, the affidavit

dated 7-8-2017 has been filed before us. Shri Mirza, the learned

counsel appearing for the respondent Nos.2 and 3, has produced

before us the communication dated 7-6-2003 along with the

note, which was put up before the Hon'ble the Chief Justice for

considering the application for grant of employment filed by the

petitioner.

8. Undisputedly, the application of the petitioner was

considered in terms of the new Scheme, which was brought into

force on 28-11-2002. The reason for rejection of the application

of the petitioner for employment on compassionate ground, as

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we find it from the affidavit of the respondents, is that only in

cases of retirement on medical grounds prior to attaining the age

of 57 years in Group 'D' Category, the benefit under the Scheme

is available. According to the respondents, in the present case,

the father of the petitioner had already attained the age of

57 years at the time of making an application for retirement on

medical grounds and, therefore, the petitioner was not eligible

for employment on compassionate ground.

9. In our view, neither at the time of retirement of the

father of the petitioner on 11-3-2002 nor at the time of making

an application by the petitioner for employment on

compassionate ground on 9-7-2002, the Scheme of 2002 was in

force. From the record and the note put up before the Hon'ble

the Chief Justice, we find that this aspect was not taken into

consideration. In our view, the petitioner could neither have

been asked to make an application under the Scheme of 2002,

nor the rejection of application could have been on the basis of

such Scheme. It is, therefore, not necessary for us to consider the

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validity or correctness of the reason stated for rejection of the

application. The petitioner was also not informed about the

reason for rejection of his claim for employment on

compassionate ground.

10. Instead of deciding the application of the petitioner

made on 9-7-2002, the reply filed by the respondents on affidavit

in this Court on 2-4-2004 clearly states that the petitioner was

asked to submit his application as per the revised guidelines

framed for employment on compassionate ground. In our view,

this application of the petitioner submitted on 9-7-2002 should

have been decided on the basis of the Scheme prevailing as on

that date.

11. We are informed that though under the old Scheme

prevailing prior to 28-11-2002, there was no age-restriction of

57 years for seeking retirement on medical grounds, as is

incorporated under the new Scheme, the petitioner is also not

eligible to get an employment under the old Scheme. It is not for

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us to decide this aspect and it is for the respondents to take

decision in this matter in accordance with law. Certainly, we

cannot direct the respondents to provide the employment to the

petitioner on compassionate ground and it will depend upon the

consideration of the matter by the respondents.

12. In the result, the petition is allowed. The communication

dated 7-6-2003 issued by the respondents, is hereby quashed and

set aside. The respondents are directed to consider the

application of the petitioner for grant of employment on the post

of Peon or Watchman in accordance with the Scheme, which was

then prevailing prior to 28-11-2002.

13. When we asked Shri Mirza, the learned counsel for the

respondent Nos.2 and 3, as to the period within which such a

decision can be taken, he submits, after taking instructions, that

within a period of four months from today, the decision shall be

taken and such decision shall be communicated to the petitioner,

along with the reasons, if the application is rejected.

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14. Rule is made absolute in the aforesaid terms. No order

as to costs.

              (Manish Pitale, J.)         (R.K. Deshpande, J.)

   Lanjewar, PS