Bombay High Court
Vandana Wd/O Shankar Nikure vs The State Of Maharashtra, Through ... on 24 August, 2021
Bench: S.B. Shukre, Anil S. Kilor
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 3251 OF 2020
1. Smt. Vandana Wd/o. Shankar Nikure,
Aged about 47 Yrs., Occu. Labour,
2. Ashish S/o. Shankar Nikure,
Aged about 24 Yrs., Occu. Labour,
1 and 2 R/o. Shripur, Tal. Wani,
District Yavatmal. .... PETITIONERS
// VERSUS //
1. The State of Maharashtra,
Through Principle Secretary,
Rural Development Department,
PDW Bhavan, 25, Marzaban Road,
Fort Mumbai -400 001.
2. Chief Officer,
Zilla Parishad, Yavatmal,
District Yavatmal.
3. Deputy Chief Officer,
(General Administrative Department),
Zilla Parishad Yavatmal,
District Yavatmal. .... RESPONDENTS
Mr. M.L. Chauhan, Advocate for the petitioners
Mr. A.A. Madiwale, AGP for respondent No.1
Mr. R.D. Bhuibhar, Advocate for respondent Nos.2 and 3.
________________________________________________________________
CORAM : SUNIL B. SHUKRE AND
ANIL S. KILOR, JJ.
DATE : 24.08.2021.
ORAL JUDGMENT: [PER SUNIL B. SHUKRE, J.]
Heard.
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2. Rule. Rule is made returnable forthwith. Heard finally by
consent of the parties.
3. The petitioner No.1 after having applied for grant of
appointment on compassionate basis to her, made a representation
on 03.07.2014 for deleting her name from the waiting list and
substituting her name by the name of petitioner No.2- Ashish, son of
petitioner No.1, as by that time, Ashish had attained majority. This
representation of the petitioner was, however, not decided by
respondent Nos.2 and 3 and and respondent Nos.2 and 3 took
about more than three and half years to inform the petitioners of
their decision in respect of the said representation. It was by the
communication dated 27.04.2018 that respondent Nos.2 and 3
informed the petitioner No.1 that as she had completed 45 years of
age, her name was being removed from the waiting list of the
aspirants for compassionate appointment.
4. It is contended by the respondents that it has never been
the policy of the State to allow substitution of names of the persons
included in the waiting list by the names of other legal heirs.
According to the respondents, this policy of the State is consistently
in existence since 1994 and therefore, the impugned
communication cannot be said to be illegal.
5. Though the respondents have been submitting that the
31wp3251.2021(j).odt
policy of the State regarding prohibition on substitution of names of
the persons in the waiting list made for giving compassionate
appointments by the names of other legal heirs is in existence since
the year 1994, learned counsel for the respondent Nos.2 and 3
could not point out to us any specific provision made in this regard
in any of the Government Resolutions (GR), except for the GR dated
20.05.2015. It is this submission that since it is not mentioned in
these GRs that such substitution is permissible, it has to be taken
that the substitution is impermissible.
6. The argument cannot be accepted as what is not
specifically and expressly prohibited cannot be said to be
impermissible in law. When the policy of the State is silent in
respect of a particular aspect, a decision in regard to that aspect
would have to be taken by the Competent Authority by taking into
consideration the facts and circumstances of each case. The reason
being that it is only the express bar, which takes away the discretion
inherently available to the authority by virtue of nature of function
that the authority has to discharge and so absence of the bar would
leave the discretion unaffected. That being the position of law, the
argument that the earlier GRs also could not be understood as
allowing the substitution of name of one legal heir by the name of
another legal heir cannot be accepted and is rejected.
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7. Then, in the case of Smt. Pushpabai Wd/o. Rajesh Bisne
and another Vs. State of Maharashtra and others , Writ Petition
No.5944 of 2018, the Division Bench of this Court has taken a view
that this GR cannot be applied to a case where the change of name
was sought much earlier than coming into force of the GR dated
20.05.2015. The facts of this case being similar to the facts of the
said case of Pushpabai (supra), we are of the view that the dispute
involved in this case is squarely covered by the view so taken by this
Court.
8. Apart from what is stated above, another Bench of this
Court at Aurangabad in the case of Dnyaneshwar s/o Ramkishan
Musane Vs. State of Maharashtra and others, 2020(5) Mh.L.J. 381,
has found that part of the said GR dated 20.05.2015 is arbitrary and
unreasonable and therefore, it has quashed the GR to the extent
that it does not permit the change of name in the waiting list of the
persons desirous of seeking compassionate appointment. So, even
otherwise, we are of the view that no reliance could be placed by
respondent Nos.2 and 3 on the said clause of GR dated 20.05.2015.
9. Accordingly, we are of the opinion that this petition
deserves to be allowed.
10. The petition is allowed.
11. The impugned communication is hereby quashed and set
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aside.
12. The respondent Nos.2 and 3 are directed to consider and
decide the representation dated 03.07.2014 filed by the petitioner
No.1, in a reasonable manner, by taking into account the
observations of this Court made in the of Writ Petition No.5944 of
2018 and also Writ Petition No.3284 of 2020, within a period of six
weeks from the date of this order.
13. Rule accordingly. No costs.
JUDGE JUDGE
nd.thawre
