Bombay High Court
Popat Sudhakar Gangawane vs The State Of Maharashtra And ... on 21 January, 2021
Bench: S.P. Deshmukh, Abhay Ahuja
{1} wp2935-19
drp
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.2935 OF 2019
Popat s/o Sudhakar Gangawane PETITIONER
Age - 21 years, Occ - Service,
At present working as "Peon"
Shri Vinayak Secondary and Higher
Secondary Vidyalaya,
Chandai Eko, Taluka - Bhokardan,
District - Jalna
VERSUS
1. The State of Maharashtra RESPONDENTS
Through its Sectary,
Education & Sports Department,
Mantralaya, Mumbai - 32
2. The Director of Education,
Maharashtra State, Pune
3. The Deputy Director of Education,
Aurangabad Region, Aurangabad
4. The Education Officer (Secondary)
Zilla Parishad, Jalna
5. Kholeshwar Shikshan Sanstha
Chandai Eko, Taluka - Bhokardan
District - Jalna
Through its President
6. Shri Vinayak Secondary and Higher
Secondary Vidyalaya, Chandai Eko,
Taluka - Bhokardan, District - Jalna
Through its Head Master
.......
Mr. Ramesh I. Wakode h/f Mr. V. B. Patil, Advocate for petitioner
Mr. S. P. Sonpawale, AGP for respondents No. 1 to 4
Mr. R. S. Patil, Advocate for respondents No. 5 and 6
.......
{2} wp2935-19
[CORAM : SUNIL P. DESHMUKH AND
ABHAY AHUJA, JJ.]
DATE : 21st JANUARY, 2021
ORAL JUDGMENT (PER SUNIL P. DESHMUKH, J.) :
1. Rule. Rule made returnable forthwith and heard learned
advocates for the parties finally, by consent.
2. The petitioner is before us aggrieved by communication
dated 30th January, 2019, whereunder proposal for approval to
his appointment as a 'peon' has been declined, for, there is no
sanction to staffing pattern and that recruitment, pursuant to
government resolution dated 6th February, 2004, had been
banned.
3. There is no dispute on factual aspect that petitioner's
father had been employed as a 'peon' with effect from 1 st June,
1992 on a permanent and approved post in respondent No. 6
school. He died on 18 th November, 2013 while he was in service.
The school, where father of the petitioner had been working, has
been receiving grant in aid.
4. On attaining majority, the petitioner had requested for
appointment on compassionate ground. The management had
resolved to appoint him in the place of his father and had issued
{3} wp2935-19
appointment order accordingly. The petitioner had also joined
duty on 11th January, 2019. Management had submitted a
proposal for approval to said appointment of the petitioner on
17th January, 2019 to the education officer and on 30 th January,
2019, impugned communication has been issued.
5. Mr. Wakode, learned advocate submits that the reasons
given under the impugned communication are untenable, as it
would not be the case that ban would hold appointments on
compassion and that the objection in respect of non sanction to
staffing pattern is also untenable, since the post, on which father
of the petitioner had been working, had been a sanctioned post.
He refers to a decision of division bench of this court (Nagpur) in
civil writ petition No. 6187 of 2019 dated 7th September, 2020
(Buldana Education Society, Buldana and another V/s State of
Maharashtra and others) wherein it has been observed, thus,
" 3. The petitioner seeks to challenge the order dated 20.03.2018,
passed by the respondent No. 3, whereby the approval to the
appointment of the respondent No. 4, has been refused on the ground
that there was ban of recruitment and the staffing pattern was not
sanctioned. Insofar as the issue of non sanctioning of staffing pattern
is concerned, it has already been held in the case of Suraj Uttam
Kamble Vs. State of Maharashtra and Ors. 2019 (4) Mh.L.J., P.332,
that in the case of compassionate appointment, as the post occupied
by the employee, who expired, was already sanctioned, the question
of sanction approving of the same again by way of approval of the
{4} wp2935-19
staffing pattern does not arise. The staffing pattern deals with
working posts. Insofar as the issue of ban in recruitment is
concerned, the same applied to creating of new post and not
otherwise.
4. In that light of the matter, the impugned order, therefore,
cannot be sustained and the same is quashed and set aside. The
respondent No. 2 is directed to grant approval to the appointment of
respondent No. 4 on the post of peon on compassionate ground from
the date of his appointment. "
6. He along side refers to another order dated 11 th February,
2020 in writ petition No. 3095 of 2019 (Mohd. Ashraf Shaikh Aslam
V/s State of Maharashtra and Others) , wherein it has been observed,
thus,
" 2. The claim of the petitioner for employment on compassionate
ground has been rejected on the ground that there is ban imposed
upon the recruitment by Government Resolution dated 12.02.2015.
The Division Bench decision of this Court in the case of Suraj Uttam
Kamble Vs. State of Maharashtra, reported in 2019 (4) Mh.L.J. 332,
it is been held that ban on recruitment does not apply to the
appointment on compassionate ground made in terms of
Government Circular dated 31.12.2002.
3. The petitioner is not being appointed on fresh post but, on the
post vacant due to death of his father, which was in employment and
hence the ban under the Government Resolution dated 12.02.2015
does not apply.
4. In view of above, Writ Petition is allowed.
5. The respondents have taken a stand due to which decision on
{5} wp2935-19
the question of grant of approval to the appointment of the petitioner
is pending and therefore, the same shall be considered ignoring the
ban on recruitment imposed by Government Resolution dated
12.02.2015. We direct the respondents to take decision in the matter,
in accordance with law. "
7. In the circumstances, we deem it appropriate to set aside
impugned communication dated 30 th January, 2019 passed by
respondent No. 4 - Education Officer (Secondary), Jalna and
direct the Education Officer (Secondary), Jalna to decide on the
proposal in respect of approval to appointment of the petitioner
as a 'peon' in respondent No. 6 school, in right earnest,
preferably within a period of two months from the date of receipt
of writ of this order and shall not decline approval for the very
reasons under the impugned order.
8. Writ petition is disposed of. Rule is made absolute in
aforesaid terms.
[ABHAY AHUJA] [SUNIL P. DESHMUKH]
JUDGE JUDGE
drp/wp2935-19
