Bombay High Court
Sau. Priyanka Sachin Wagh vs The State Of Maharashtra Through ... on 13 January, 2021
Bench: K.K. Tated, R. I. Chagla
10.11526.19-wp.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Basavraj CIVIL APPELLATE SIDE JURISDICTION
G. Patil
Digitally signed by WRIT PETITION NO.11526/2019
Basavraj G. Patil
Date: 2021.01.15
10:42:46 +0530
Priyanka Sachin Wagh ..... Petitioner
Vs.
The State of Maharashtra & Ors. ..... Respondents
Mr. Sujeet R. Bugade for the Petitioner
Mrs. P. J. Gavhane, AGP for the State
CORAM: K.K.TATED &
RIYAZ I. CHAGLA, JJ.
DATED : JANUARY 13, 2021
P.C.
1 Heard. The learned counsel for the Petitioner
submits that in the present proceedings, the Petitioner's
father was working with the Respondent-State and he
expired on 01.08.2016. Hence, initially, the petitioner's
sister Vishaka Dilip Patil had made an Application for
appointment on compassionate ground. During pendency of
the said Application, the Petitioner's family had decided that
instead of the Petitioner's sister, the Petitioner would make
an Application for appointment on compassionate ground.
Hence, the Petitioner had made an Application to that effect
with the Respondent along with No-Objection from the legal
heirs of the deceased Dilip Tukaram Patil.
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2 The learned counsel for the Petitioner submits that
the said Application was rejected by the Respondent by
letter dated 09.01.2019 on the ground that there is no
provision for substituting the name of another legal heir in
case of appointment on compassionate ground.
3 The learned counsel for the Petitioner submits that a
similar issue was before Aurangabad Bench of this Court in
the matter of Dnyaneshwar Ramkrishan Musane Vs.
State of Maharashtra AIROnline 2020 Bom 208. He
submits that this court has specifically held that the
Government should consider the application of another legal
heir, if No-Objection is given by the person whose name was
added in the waiting list. In support of his contention, he
relies on para 5 and 6 of the said judgment which reads
thus:
"5. After hearing learned advocates for the parties
and going through the Government Resolution dated
20.05.2015, we are of the view that the prohibition
imposed by the Government Resolution dated
20.05.2015 that name of any legal representative of
deceased employee would not be substituted by any
other legal representative seeking appointment on
compassionate ground, is arbitrary, irrational and
unreasonable and violates the fundamental rights
guaranteed by Article 14 of the Constitution of India.
As per the policy of the State Government, one legal
representative of deceased employee is entitled to be
considered for appointment on compassionate ground.
The prohibition imposed by the Government
Resolution dated 20.05.2015 that if one legal
representative of deceased employee stakes claim for
appointment on compassionate ground, then name of
another legal representative of that deceased
employee cannot be substituted in the list in place of
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the other legal representative who had submitted
his/her application earlier, does not further the object
of the policy of the State Government regarding
appointments on compassionate grounds. On the
contrary, such prohibition frustrates the object for
which the policy to give appointments on
compassionate grounds is formulated. It is not the
case of respondent no.2 that petitioner's mother was
given appointment on compassionate ground and then
she resigned and proposed that petitioner should be
given appointment. The name of petitioner's mother
was in waiting list when she gave up her claim and
proposed that the petitioner should be Considered for
appointment on compassionate ground.
6. In this view of the matter, we find that the
restriction imposed by the Government Resolution
dated 20.05.2015 that name of legal representative of
deceased employee cannot be considered in place of
another legal representative of that deceased
employee whose name happens to be in the waiting list
for giving appointment on compassionate ground, is
unjustified."
4 The learned counsel for the Petitioner submits that
similar view was taken even by the Madras High Court in
the matter of R. Visoliya Vs. State of Tamil Nadu in Writ
Petition No.186/2015 and M.P.No.1, 2 and 4 of 2015 in
order dated 02.03.2017. Paragraph No.6 of the said order
reads thus:
"6. Similarly, even if an application is made seeking
employment in favour of one particular member of the
family, before any such appointment is made, the
application can be allowed to be substituted with that
of any other family member as well. It is for the family
of the deceased Government servant to choose and a
rigid approach not to allow any substitution to take
place is not an appropriate measure of providing
succour and help to the family of the deceased
Government servant, which is the very objective and
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rationale behind the scheme. There can be
imponderable factors as to why an earlier application
may not be pursued. Hence we are of the opinion that
the rejection of the proposal by the State Government
to regularise the service of the writ petitioner only on
the ground that the earlier application is not pursued
but substitute application is considered, may not be
most appropriate and is also not justified. If the
application submitted by one of the family members
has already resulted in an order of appointment in
favour of such an applicant, at that stage, perhaps
substitution may not be warranted or entertained but
like in the instant case, where the application made by
one member of the family seeking appointment on
compassionate basis is still pending consideration, any
such subsequent application in place of the former one
duly obtained with the consent of the earlier/former
applicant is liable to be treated as one of substitution
but not be treated as a subsequent application or a
fresh application or a case of the family making
multiple applications."
5 On the basis of these facts, the learned counsel for the
Petitioner submits that the Respondent be directed to
substitute the Petitioner's name in the waiting list for
appointment on compassionate ground in place of Vishakha
Dilip Patil, the Petitioner's sister.
6 The learned AGP submits that in the case in hand, they
have passed the order dated 09.01.2019 on the basis of
Government Resolution dated 21.09.2017, whereas, the
Petitioner is relying on the judgment of this court in the
matter of Dnyaneshwar Ramkishan Musane (supra) in
which the Court has considered the Government Resolution
dated 20.05.2015. Hence, she seeks some time to take
instructions and to file Affidavit in Reply.
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7 Hence, the following order is passed:
a. The Respondent to file Affidavit in Reply on or
before 05.02.2021, with copy to other side.
b. Rejoinder, if any, shall be filed on or before
10.02.2021, with copy to other side.
c. S.O. to 15.02.2021.
(RIYAZ I. CHAGLA, J.) (K.K.TATED, J.)
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