Varsha Wd/O Dilip Akhare vs State Of Maharashtra, Thr. ...
2021 Latest Caselaw 6628 Bom

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           IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                           NAGPUR BENCH : NAGPUR


                      WRIT PETITION NO.1610 OF 2021


Smt. Varsha wd/o Dilip Akhare,
aged about 45 years, occupation :
household work, r/o Lane No.4,
Gajanan Nagar, Dabki Road,
Akola, Taluq and District Akola.                          ...     Petitioner

                - Versus -

1)   State of Maharashtra, through
     the Secretary, Urban Development,
     Mantralaya, Mumbai - 32.

2)   Commissioner, Akola City
     Municipal Corporation, M.G. Road,
     Akola, Taluq and District Akola.                     ...     Respondents
                -----------------
Shri C.A. Joshi, Advocate for petitioner.
Shri A.A. Madiwale, Assistant Government Pleader for respondent
no.1.
Shri Anjan De, Advocate for respondent no.2.
                ----------------

                                    CORAM : SUNIL B. SHUKRE AND
                                            S.M. MODAK, JJ.

DATED : APRIL 22, 2021

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ORAL JUDGMENT (PER SUNIL B. SHUKRE, J.) :

Hearing was conducted through Video Conferencing and the

learned Counsel for the parties agreed that the audio and visual

quality was proper.

2) Rule, returnable forthwith. Heard finally by consent of the

learned Counsel for the parties.

3) Shri Anjan De, learned Counsel for the respondent no.2, has

made a statement on instructions that the appointment granted to

Sushma Rajesh Gade, which was an out-of-turn appointment,

by the predecessor of the present Commissioner, was illegal and in

no circumstances, could have been granted to her by giving her

precedence over and above the other candidates, who stood much

above Sushma Rajesh Gade in the waiting list of candidates to be

appointed on compassionate basis. He submits that such statement

has been made by the respondent no.2 on oath in the affidavit-in-

reply filed by him. However, the affidavit-in-reply at present is not

forming part of the record. We have no reason to discard the

statement so made across the Bar by Shri Anjan De upon seeking

instructions from the respondent no.2. In fact, genuineness of the

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event disclosed by the statement is also not disputed by Shri Joshi,

learned Counsel for the petitioner, as he submits that now the

petitioner is not seeking cancellation of the appointment granted to

Sushma Rajesh Gade and he is only seeking direction to the

respondent no.2 to grant employment to the petitioner on

compassionate ground prior to 25/4/2021 by treating her as a

separate class and, therefore, giving her precedence over all the

candidates standing above her in the waiting list for compassionate

appointments.

4) Once it is seen that illegal appointment of Sushma Rajesh

Gade is now being cancelled, the ground of unequal and

discriminatory treatment to the petitioner would not be available.

This is also admitted by Shri Joshi, learned Counsel for the

petitioner. Now the only question that remains is as to whether or

not candidate like the petitioner, who stands at serial no.47, could be

treated separately and could be appointed on compassionate basis by

ignoring the claims of all other 46 candidates, who are listed above

her in the waiting list.

5)     Shri Joshi, learned Counsel for the petitioner, submits that the





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question is required to be examined from different perspective and if

it is done, answer that would spring forth therefrom would be in the

affirmative. He further submits that not because the petitioner is

crossing the age of 45 years on 24/4/2021 that she should be

appointed on compassionate basis, but because there are 801 posts

of Class "C" and "D" employees, which are lying vacant on the

establishments of different Municipal Corporations and Municipal

Councils in the State of Maharashtra.

6) The aforesaid submission indicates that now the petitioner is

also giving up her ground of appointing her on compassionate basis

by ignoring the claims of other candidates, who stand above her in

the waiting list. Even otherwise, this ground holds no water as

admittedly there is no policy framed by the respondent no.2 to

consider making of appointments of such candidates, who are

completing age of 45 years on a certain date. Unless and until there

is a policy prescribed in this regard, no candidate can raise such a

ground and seek a direction to an employer for giving him or her

such appointment. Therefore, on this ground, this petition cannot be

allowed.

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7)     As regards the claim of the petitioner that because there are

801 vacancies existing, she must be accommodated on any of those

vacancies before she completes 45 years of age, we must say that

even this ground is not tenable in law for the reason that ultimately

it is for the employer to decide in his discretion and wisdom as to

when and in what number the vacant posts should be filled up by

him. If the employer has not taken any decision in this regard,

there is no law existing, which would compel an employer to hastily

decide the issue. The employer is required to take into account

several factors, which are relevant for making administration of the

Office effective. We are thus of the view that even for the reason of

existence of certain number of vacancies, direction cannot be issued

to the respondent no.2 for absorbing the petitioner on

compassionate basis.

8) In the circumstances, this petition is devoid of any merit and it

deserves to be dismissed. The petition stands dismissed. Rule is

discharged. No costs.

            JUDGE                                                      JUDGE

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