Mohd. Tausif Sheikh Babbu vs Divisional Controller ...
2017 Latest Caselaw 3345 Bom

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

                                 WRIT PETITION NO.2003/2015

     PETITIONER :               Mohd. Tausif Sheikh Babbu
                                Aged about 24 years, Occu : Nil
                                R/o near Boudha Vihar, Gautam 
                                Library, Siraspeth, Nagpur. 

                                                ...VERSUS...

     RESPONDENT :    Divisional Controller 
                                 Maharashtra State Road Transport 
                                 Corporation, Nagpur Division, Nagpur.
     --------------------------------------------------------------------------------------------------
                       Shri B.M. Khan, Advocate for petitioner 
                       Shri V.G. Wankhede, Advocate for respondent 
     --------------------------------------------------------------------------------------------------

                                                    CORAM  :  SMT. VASANTI  A  NAIK AND
                                                                      ARUN D. UPADHYE, JJ.

DATE : 20.06.2017

ORAL JUDGMENT (PER : SMT. VASANTI A. NAIK, J.)

By this petition, the petitioner challenges the order of

termination of his father from services, dated 23.12.2011 and seeks a

declaration that his father was entitled to continue in service till he

expired on 9.11.2013. The petitioner seeks a direction against the

respondent - Corporation to appoint the petitioner on compassionate

ground.

The father of the petitioner was working with the

respondent - Maharashtra State Road Transport Corporation as an

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Assistant Mechanic when he suffered a paralytic stroke in the year 2011.

The father of the petitioner was examined by the Medical Board and since

he was not found fit for duties, his services were terminated vide order

dated 23.12.2011. The father of the petitioner did not challenge the order

of his termination. The father of the petitioner expired on 9.11.2013. The

petitioner made attempts through the Employees Union to persuade the

respondent - Corporation to employ him in the services of the

Corporation on compassionate ground. Since the representations of the

petitioner were not considered favourably, the petitioner has filed the

instant petition seeking the aforesaid relief.

Shri Khan, the learned Counsel for the petitioner submitted

that in view of the provisions of Section 47 of the Persons with Disabilities

(Equal Opportunities, Protection of Rights and Full Participation) Act,

1995, the Corporation was not justified in terminating the services of the

father of the petitioner. It is submitted that in view of the provisions of

the Act, the father of the petitioner should be considered to have been in

service till he expired on 9.11.2013. It is submitted that since the

respondent - Corporation had illegally terminated the services of the

father of the petitioner, the order of termination is liable to be set aside. It

is submitted that by considering that the father of the petitioner had died

while in service, it would be necessary to appoint the petitioner on

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compassionate ground.

Shri Wankhede, the learned Counsel for the Corporation has

denied the prayer made by the petitioner. It is submitted that as per the

relevant policy of the Corporation pertaining to compassionate

appointments, after 9.6.2006, only the dependent of an employee who

dies while in service would be entitled to be considered for grant of

compassionate appointment. It is submitted that the father of the

petitioner was terminated from service in the year 2011 and though he

was very much alive for more than a couple of years after his services

were terminated, he had failed to challenge the order of termination. It is

submitted that since as per the policy of the Corporation, appointment

cannot be granted to the dependent of an employee who dies after he is

terminated on health grounds, the petitioner cannot be appointed on

compassionate ground.

In the circumstances of the case, we are not inclined to

grant the relief claimed by the petitioner. The father of the petitioner was

declared to be medically unfit in February - March, 2011 by the duly

constituted Medical Board and his services were terminated vide order

dated 23.12.2011. The father of the petitioner never challenged his

termination order till he expired on 9.11.2013. The father of the

petitioner must not be aggrieved by the order of his termination as he had

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not in a position to work. After the father of the petitioner expired in

November, 2013, the petitioner made efforts for seeking appointment on

compassionate ground. Since according to the Rules of the Corporation

compassionate appointment could have been granted only to the

dependent of an employee who dies while in service, the petitioner's

claim was not favourably considered. We do not find any illegality in the

action on the part of the Corporation in declining the prayer of the

petitioner for compassionate appointment. It would not be proper for this

Court to hold in this petition that is not filed by the employee that the

employee was in service till the date of his death and after holding so to

grant the relief in favour of the petitioner. Compassionate appointment

cannot be sought as of a right and as per the judgment of the Hon'ble

Supreme Court, reported in 2013 (1) SCALE 506, the Courts must not

show undue sympathy in favour of the claimant so as to deprive the

needy.

In the result, the writ petition fails and is dismissed with no

order as to costs. Rule stands discharged.

                  JUDGE                                                                JUDGE


     Wadkar