Anita Balasaheb Gaikwad And ... vs The State Of Maharashtra And ...
2021 Latest Caselaw 9409 Bom

                                                                901-wp-12734-2016.odt
                                          (1)

            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       BENCH AT AURANGABAD

                     901 WRIT PETITION NO.12734 OF 2016
                     WITH CA/10175/2017 IN WP/12734/2016

                   ANITA BALASAHEB GAIKWAD AND OTHERS
                                       VERSUS
                  THE STATE OF MAHARASHTRA AND OTHERS
                                          ...

Advocate for Petitioners : Mr. Kamble Dinkar G. AGP for Respondent No.1 : Mr. S.B. Pulkundwar Advocate for Respondent No.2 : Mr. S.S. Bora ...

CORAM : RAVINDRA V. GHUGE & S.G. MEHARE, J.J.

DATED : 17th JULY, 2021

PER COURT:-

1. By this petition, these petitioners pray for compassionate

appointment. This petition was fled on 01.08.2016. These petitioners

have put-forth prayer clause (B) as under:

"B. The respondent No.2 may kindly be directed to appoint the petitioners on the post of Sweeper/Peon in Class-IV cadre within two months or as directed by this Hon'ble Court."

2. We have considered the strenuous submissions of the

learned advocate for the petitioners and respondent no.2-Corporation and

the learned AGP for respondent no.1, Urban Development Department,

State of Maharashtra. With their assistance, we have gone through the

petition paper book.

3. Considering the details tendered by the petitioners, it

appears that petitioner no.1 is 40 years of age today. Petitioner no.2 is 33

years of age. Petitioner no.3 is 63 years old. Petitioner no.4 is 34 years

old. Petitioner no.5 is 40 years old and Petitioner no.6 is 65 years old.

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4. It is conceded that some of these petitioners are now

married and well settled in life having children. The details about the

deaths of the husbands/fathers of the petitioners supplied in a separate

chart, which we have marked as 'X' for identifcation, are as under:

Sr. No. Name of the Date of Date of Relation Date of petitioners Appointment death Application 1 Anita W/o 31/08/01 11/01/11 Husband 17/01/11 Balasaheb Gaikwad 2 Rachappa S/o 31/01/01 15/03/07 Father 30/03/07 Ashok Birjdar 3 Sushila W/o 31/08/01 08/04/08 Husband 12/05/08 Ankush Kure, 4 Ratan S/o Ashok 31/08/01 18/02/15 Father 22/10/15 Tambe 5 Ashok S/o 31/08/01 25/12/11 Father 11/01/12 Kondiba Kharat, 6 Kamlabai W/o 31/08/01 10/03/06 Husband 05/06/06 Bhimrao Ughede,

5. The learned advocate for the corporation has drawn our

attention to it's afdavit in reply. It is informed that 252 daily wagers were

regularized as a onetime measure by the corporation on 31.08.2001. The

Urban Development Department had put a condition on the corporation

that as this is a onetime measure, after the posts occupied by these 252

daily wagers would fall vacant, the posts shall be abolished and there

shall be no further recruitment on the said posts as they are being created

as super numerary posts.

6. It is further informed that considering the request made by

these petitioners and similarly situated persons, the corporation had

earlier sought guidance from the State. The Deputy Director Municipal

Administration, by it's communication dated 17.03.2006, cautioned the

authorities that compassionate appointment should not be made in a high

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handed manner without obtaining the permission of the municipal

administration.

7. One person namely Rahul Devidas Kamble had approached

the Labour Court in complaint ULP No.22 of 2017 and by judgment dated

17.11.2018, the Labour Court partly allowed the complaint directing

reinstatement of Rahul, who was earlier taken in employment and then

disengaged as the State did not accord it's approval for such

appointment.

8. In another matter, where the Labour Court had granted

reinstatement to Saheb Yadavrao Rakshe, the Municipal Corporation

Parbhani had approached this Court in Writ Petition No.4907 of 2019. By

order dated 25.06.2019, this Court had recorded the submissions of the

litigating parties in paragraph nos.3 to 8 as under:

"3. The learned Advocate for the petitioner/Corporation points out that the proposal of the respondent was forwarded for seeking regularization as he was working on daily wages as a "safai kamgar" from 04/10/1993. The proposal forwarded by the petitioner dated 28/03/2018 also indicates that it was mentioned that the respondent/workman was relieved from employment as he had completed 55 years as a daily wager. The dispute as to whether a daily wager would work till the age of 55 as against a regular class IV employee, whose retirement age is 60 years, is a subject matter of WP No.4424/2017, which is pending before this Court.

4. Learned Advocate for the petitioner further points out the communication dated 26/09/2018, which is a reminder to the department of Urban Development, Mantralaya that those 96 workers, who had worked as daily wagers as safai kamgar in between 11/03/1993 till 27/03/2000, can be granted regularization. He further indicates from an earlier

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communication dated 01/06/2016 vide which a reminder was forwarded to the Urban Development Department to regularize such daily wagers who have been working in between 11/03/1993 to 27/03/2000. In the list of safai kamgars working on daily wages, the name of the respondent is at Sr.No.15. He, therefore, submits that the Municipal Corporation has no bias or prejudice against the respondent. There can be no allegation that the petitioner is indulging in "pick and choose" policy. The petitioner cannot act on its own and is guided by the dictates of the Urban Development Department, State of Maharashtra.

5. He then points out the communication dated 15/12/2018 received from the Desk Ofcer, Urban Development Department, Mantralaya addressed to the Commissioner of the petitioner, that those daily wagers who are working on and after 10/03/1993 and who are still in employment, can be granted regularization. He submits that, as a consequence of the said communication, the petitioner has been restrained by the State Government from considering the case of the respondent/workman.

6. I fnd from the record that the Corporation has completely mis-handled the case of this respondent/workman. The Director of Municipal Administration, State of Maharashtra, issued a letter to all the Chief Ofcers of various Municipal Councils on 22/08/2006 directing that those daily wagers, who have completed 55 years of service, should be removed from employment. The petitioner, then a Municipal Council, got converted into a Municipal Corporation subsequently. It is in this backdrop that some of the workers were terminated and they approached the Labour Court through reference cases. Several of such daily wagers have secured protective orders from the Labour Court and some, as like the respondent herein, have succeeded before the Labour Court as a distinction cannot be made between daily wagers and permanent employees concerning the age of retirement. The petitioner/Corporation has reinstated several such workmen, who have been protected by the Labour Court/Industrial Court,

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as the case may be.

7. I fnd from a communication addressed by the petitioner/Corporation dated 28/03/2018 to the Principal Secretary, Urban Development Department, Mantralaya that there were 355 positions of safai kamgar in the Class IV category. 239 have to be flled in by direct recruitment and there are 116 positions vacant.

8. Considering the above, it is quite clear that the respondent was working from 04/10/1993 till 30/09/2016. He, therefore, falls in the service band of 11/03/1993 to 27/03/2000, who were declared to be eligible for regularization by the Urban Development Department. A recent GR dated 05/02/2019 would also indicate that these workmen would be eligible for regularization."

9. It is obvious from the order of this Court reproduced above,

that the issue was with regard to whether the retirement age of such daily

wagers could be 55 years or 58 years and as the issue was pending with

the government, this Court had partly allowed the petition and had allowed

Saheb Yadavrao Rakshe to continue in employment in view of the

statement made by the corporation.

10. It is undisputed, in the light of the crystalised position in law

that compassionate appointment is granted only to provide immediate

succour to the unfortunate family which lost a sole bread earner while in

employment. In catena of judgements, the Hon'ble Apex Court has

concluded that with passage of time and if the candidates are settled in

life, the purpose of granting compassionate appointment is lost, (Umesh

Kumar Nagpal V/s. State of Haryana, (1994) 4 SCC 138 and Local

Administration Department and another V/s. M. Selvanayagam @

Kumaravelu, (2011) 13 SCC 42). In the instant case, the husband of

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petitioner no.1 has passed away more than 10 years ago. The father of

petitioner no.2 has passed away more than 14 years ago. The husband of

petitioner no.3 passed away more than 13 years ago. The father of

petitioner no.4 passed away more than 6 years ago. The father of

petitioner no.5 has passed away about 10 years ago and the husband of

petitioner no.6 has passed away more than 15 years ago.

11. The learned advocate for the petitioners submits that the

names of these petitioners have already been listed in the wait-list of

applicants seeking compassionate appointment. We do not wish to

comment on the said statement for the reason that if there is no legal

impediment and the corporation is willing to grant employment to these

petitioners, despite the passage of time as noted above, we have no

reason to express any opinion.

12. However, considering the factual matrix before us and the

crytalised position of law, we do not fnd that we can exercise our extra

ordinary jurisdiction under Article 226 of the Constitution of India to direct

the corporation to grant compassionate appointment to these petitioners.

13. In view of the above, this petition is disposed of. Pending

civil application would not survive and stands disposed of.

    (S.G. MEHARE. J)                          (RAVINDRA V. GHUGE, J)




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