Akash Gajendra Biradar vs The State Of Maharashtra And ...
2018 Latest Caselaw 880 Bom

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      IN  THE HIGH COURT OF JUDICATURE AT BOMBAY

                               BENCH AT AURANGABAD


                     WRIT PETITION NO.11407 OF 2016


 Akash s/o Gajendra Biradar,
 Age-20 years, Occu:Education,
 R/o-Arasnal, Post-Devarjan,
 Tq-Udgir, Dist-Latur.
                                 ...PETITIONER 
        VERSUS             

 1) The State of Maharashtra,
    Through its Secretary,
    General Administration Department,
    Mantralaya, Mumbai-32,

 2) The Chief Executive Officer,
    Zilla Parishad, Jalna.   
                                 ...RESPONDENTS

                      ...
    Mr. Dhanaji S. Kudale Advocate for Petitioner.
    Mr. P.K. Lakhotiya, A.G.P. for Respondent No.1.
    Mr. A.D. Aghav Advocate for Respondent No.2. 
                      ...


               CORAM:   S.S. SHINDE AND
                        S.M. GAVHANE, JJ.

DATE OF RESERVING JUDGMENT : 18TH JANUARY, 2018

DATE OF PRONOUNCING JUDGMENT: 24TH JANUARY, 2018

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JUDGMENT [PER S.S. SHINDE, J.]:

1. Rule. Rule made returnable forthwith and

heard finally with the consent of the learned

counsel appearing for the parties.

2. This Petition under Article 226 of the

Constitution of India is filed with following

prayers:

"B) By a writ of certiorari or any

other appropriate writ or direction in

the like nature, the letter dated

13.11.2014 issued by the Respondent No.2

at Exhibit "D" may kindly be quashed and

set aside.

C) By a writ of mandamus or any other

appropriate writ or direction in the

like nature, the Respondent No.2 may

kindly be directed to appoint the

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Petitioner on compassionate ground."

3. It is the case of the Petitioner that he

is having H.S.C. qualification and his date of

birth is 17th December, 1995. The father of the

Petitioner, namely, Gajendra Nivratirao Biradar

was in permanent employment with Primary School

run by Zilla Parishad, Jalna, as Assistant

Teacher. The Petitioner's real mother, namely

Nilawati w/o. Gajendra Biradar was the first wife

of Gajendra Biradar. The Petitioner and his

sister namely Snehalata are children of the said

Nilawati and their permanent residence was Lohara,

Taluka-Udgir, District-Latur.

4. It is the case of the Petitioner that

thereafter on 7th March, 1998 the real mother of

the Petitioner expired when the Petitioner and his

sister were of very tender age. Thereafter,

maternal grandfather of the Petitioner maintained

them. It is further the case of the Petitioner

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that, thereafter father of the Petitioner again

married with another lady, and it seems that the

Petitioner's father named the said second wife as

'Nilawati i.e. similar to the name of real mother

of the Petitioner. The father of the Petitioner

after second marriage never cared and maintained

the Petitioner and his sister. The Petitioner's

father while in service as Assistant Teacher in

Primary School at Kodoli, Taluka-Bhokardan,

District-Jalna, run by Zilla Parishad, Jalna, died

on 23rd March, 2011. It is further the case of the

Petitioner that at the time of death of his

father, the Petitioner was minor and therefore he

could not apply for compassionate employment

immediately or within further prescribed period

till attaining the age of majority. The Petitioner

attained the age of majority on 17th December,

2013. Thereafter, on 26th May, 2014, the

Petitioner made an application to Respondent No.2

for employment on compassionate ground, within six

months from attaining the age of majority. It is

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the case of the Petitioner that he made the said

application within limitation prescribed as per

the Government Resolutions dated 26th October,

1994 and 11th September, 1996 issued by the

General Administration Department, Government of

Maharashtra.

5. It is further the case of the Petitioner

that Respondent No.2 by wrongly relying upon

clause 2 (3) of the Government Resolution dated

22nd August, 2005 issued by the General

Administration Department, Government of

Maharashtra, wherein limitation to apply for

compassionate employment is prescribed as one year

from death of the employee, rejected the claim of

the Petitioner. Being aggrieved by the said

decision, the Petitioner made representations

dated 20th January, 2015 and 6th September, 2016,

requesting Respondent No.2 to reconsider the claim

of the Petitioner for employment on compassionate

ground. However, Respondent No.2 has not paid any

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heed to the said request of the Petitioner. Hence

this Petition.

6. Learned counsel appearing for the

Petitioner submits that though in the Government

Resolution dated 26th October, 1994 the time limit

to apply for employment on compassionate ground

was within five years from the date of death of

concerned employee, however, the said Government

Resolution was amended on 11th September, 1996 and

the said condition was modified and it was

stipulated that if the legal heir of the deceased

employee is minor at the relevant time, he shall

apply for employment on compassionate ground

within one year after attaining the age of

majority. After attaining the age of majority,

within six months, the Petitioner has made

application to the concerned authority. However,

by ignoring the Government Resolution dated 11th

September, 1996 and only relying upon the

provisions of Government Resolution dated 22nd

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August, 2005, Respondent No.2 has rejected the

application made by the Petitioner for employment

on compassionate ground. Learned counsel further

submits that the earlier Government Resolution

dated 11th September, 1996 was not superseded by

the subsequent Government Resolution dated 22nd

August, 2005. Therefore, he submits that, the

Petition deserves to be allowed.

7. On the other hand, learned A.G.P.

appearing for the State and the learned counsel

appearing for Respondent No.2 submit that

Respondent No.2 has rightly rejected the

application of the Petitioner for employment on

compassionate ground relying upon the provisions

of the Government Resolution dated 22nd August,

2005, wherein it is specifically stipulated that

for appointment on compassionate ground, the heir

of the deceased employee shall apply within one

year from the date of death of the deceased

employee. Therefore, it is submitted that the

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Petition may be rejected.

8. We have carefully considered the

submissions of the learned counsel appearing for

the Petitioner, learned A.G.P. appearing for the

State and learned counsel appearing for Respondent

No.2. With their able assistance, we have perused

the grounds taken in the Petition, annexures

thereto and the relevant Government Resolutions.

We have carefully perused the Government

Resolution dated 22nd August, 2005, the provisions

of which are relied by Respondent No.2 while

rejecting the request of the Petitioner to appoint

him on compassionate ground. Upon perusal of the

said Government Resolution dated 22nd August,

2005, it is crystal clear that there is no

reference at all in respect of the earlier

Government Resolution dated 11th September, 1996.

Therefore, by no stretch of imagination it can be

concluded that Government Resolution dated 22nd

August, 2005 has superseded the provisions of

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earlier Resolution dated 11th September, 1996.

Therefore, though the subsequent Government

Resolution of 2005 is made applicable by the

State Government, the earlier Government

Resolution of 1996 is also in existence which

provides that the heir of the deceased employee,

who is minor, shall apply within one year from the

date of attaining the age of majority. The

provisions for appointment of the heirs of

deceased employee on compassionate ground are the

beneficial provisions which are being implemented

by the State Government to overcome the financial

crisis/crunch faced by the family members of the

deceased employee, and therefore the same deserves

to be construed reasonably.

9. It appears that along with the Petition,

the Petitioner has annexed the copy of his school

leaving certificate, wherein his date of birth is

mentioned as 17th December, 1995. Thus, the

Petitioner attained the age of majority on 17th

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December, 2013. Immediately within six months

after attaining the age of majority, i.e. on 26th

May, 2014, the Petitioner applied for employment

on compassionate ground. Thus, it is clear from

the documents placed on record that the decision

taken by Respondent No.2 on 13th November, 2014

thereby rejecting the application of the

Petitioner for employment on compassionate ground

is arbitrary, and the same is in ignorance of the

provisions of the earlier Government Resolution

dated 11th September, 1996, and therefore the

same deserves to be quashed and set aside.

10. In the light of discussion herein above,

we pass the following order:

O R D E R

(I) The impugned letter/ communication

dated 13th November, 2014 issued by

Respondent No.2 is quashed and set

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aside.

(II) We direct Respondent No.2 to

formally verify the fact that, the

Petitioner has made an application

within one year from the date of

attaining majority. We further direct

Respondent No.2 to re-consider the

claim of the Petitioner for appointment

on compassionate ground, on its own

merits in accordance with the

provisions of law, the relevant

provisions of the Government

Resolutions and the relevant Policy of

the State Government.

(III) Respondent No.2 shall consider

the claim of the Petitioner on its own

merits and shall not reject the same on

the same grounds as mentioned in the

impugned communication/letter dated

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13th November, 2014.

(V) Rule made absolute in above terms.

The Writ Petition stands disposed of

accordingly.

[S.M. GAVHANE, J.] [S.S. SHINDE, J.] asb/JAN18