Kavita Deepak Hiwrale And Another vs The State Of Maharashtra And ...
2021 Latest Caselaw 8324 Bom

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         IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                     BENCH AT AURANGABAD

                       WRIT PETITION NO. 1918 OF 2020

Smt. Kavita wd/o Deepak Hiwrale & another                          Petitioners

        Versus

The State of Maharashtra & another                                 Respondents

Mr. A.S. Deshmukh, Advocate for the petitioners.
Mr. S.G. Karlekar, AGP for both the respondents.

                                       CORAM : S. V. GANGAPURWALA &
                                               M.G. SEWLIKAR, JJ.

DATE : 23rd June, 2021.

PER COURT : ( Per M.G. Sewlikar, J.)

1. By this petition under Articles 226 and 227 of the

Constitution of India, petitioners are assailing the judgment and

order passed by the Maharashtra Administrative Tribunal,

Aurangabad, dated 28th November, 2019 in Original Application No.

928/2019 whereby the application of the petitioners came to be

dismissed.

2. Facts giving rise to this petition are that deceased

Deepak Hiwrale was the husband of petitioner No. 1 and father of

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petitioner No. 2. he died in harness as Police Head Constable on

16th September, 2004. Thereafter, petitioner No. 1 made an

application to respondent No. 2 for employment on compassionate

ground in Class IV/Group D category. The name of petitioner No. 1

was included in the waiting list of the eligible candidates to be

appointed on compassionate ground. However, she was not offered

any job as according to respondent No. 2, petitioner No. 1 has passed

7th standard, on account of which, she did not fulfll the

qualifcations for the appointment on Class III/Group C post.

3. Petitioners further contend that petitioner No. 2 was born

on 10th May, 1992 and passed 10th standard examination in March

2010. His date of birth was wrongly entered as 10 th May, 1995 in his

Secondary School Certifcate issued by the Maharashtra State Board

of Secondary and Higher Secondary Education, Pune. He had made

correspondence with the Education Offcer for the correction of his

date of birth but the Education Offcer did not consider his

application favourably. Therefore, he had to fle Writ Petition No.

532/2013. In view of the directions of this Court in Writ Petition No.

532/2013, the date of birth of petitioner No. 2 was corrected as 10 th

May, 1992. According to petitioners, thereafter petitioner No. 2 made

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an application to respondent No. 2 for giving employment to him

instead of petitioner No. 1. This application was made on 16 th

January, 2015. It is the contention of petitioners that petitioners

sought replacement of name of petitioner No. 2 against petitioner No.

1. This request was turned down by respondent No. 2 by

communication dated 27th September, 2018. This communication

was assailed before the learned Tribunal by preferring Original

Application No. 928/2018. By the order dated 28 th November, 2019,

the learned Tribunal rejected the application on the ground that

change of name is not permissible. This order is impugned in this

writ petition.

4. We have heard Shri A.S. Deshmukh, learned counsel for

the petitioners and Shri Karlekar, learned AGP for both the

respondents.

5. Learned counsel Shri Deshmukh submitted with

vehemence that at the time of death of deceased Deepak Hiwrale,

petitioner No. 1 was 30 years old and petitioner No. 2 was 12 years of

age. Since petitioner No. 2 was minor, petitioner No. 1 had made an

application to respondent No. 2 to include her name for the

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appointment on compassionate ground. He further submitted that

petitioner No. 2 had to get his date of birth corrected as 10 th May,

1992 from 10th May, 1995 by preferring aforesaid writ petition. His

date of birth was corrected vide order of this Court dated

19th September, 2013 and thereafter, petitioner No. 2 made

application for change of name. He submitted that the Honourable

Supreme Court and this Court also time and again have held that

change of name is permissible. Despite this, the Tribunal rejected

the application of petitioners. He placed reliance on cases in the

matter of State of Himachal Pradesh and another Vs. Shashi Kumar

reported in 2019(3) SCC 653, Local Administration Department and

another Vs. M. Selvanayagam @ Kumaravelu reported in 2011(13)

SCC 42 and State of Jammu and Kashmir and another Vs. Sajad

Ahmed Mir reported in 2006(5) SCC 766.

6. Learned AGP opposed the application.

7. It is not in dispute that deceased Deepak Hiwrale was the

husband of petitioner No. 1 and father of petitioner No. 2. Deceased

Deepak died in harness on 16th September, 2004. At the time of

death of Deepak, petitioner No. 2 was 12 years old. Petitioner No. 2

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made application for correction of his date of birth which was

rejected by the Education Offcer. Petitioner No. 2 had to fle Writ

Petition No. 532/2013 which was allowed on 19 th September, 2013.

He then made application to the Board of Secondary School

Certifcate and the Board informed him on 17th January, 2014, about

correction of date of birth. Respondent No. 2 rejected the application

of petitioner No. 2 on the ground that change of name is not

permissible.

7. In the case of MGB Gramin Bank Vs. Chakrawarti Singh

reported in AIR 2013 SC 3356, it has been held that the claim for

appointment on compassionate ground is based on the premise that

the applicant was dependent on the deceased employee. Strictly,

such a claim cannot be upheld on the touchstone of Article 14 or 16

of the Constitution of India. However, such claim is considered as

reasonable and permissible on the basis of sudden crisis occurring in

the family of such employee who has served the State and dies while

in service. Appointment on compassionate ground cannot be claimed

as a matter of right. As a rule, public service appointment should be

made strictly on the basis of open invitation of applications and

merit. The appointment on compassionate ground is not another

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source of recruitment but merely an exception to the aforesaid

requirement taking into consideration the fact of the death of the

employee while in service leaving his family without any means of

livelihood. In such cases, the object is to enable the family to get over

sudden fnancial crisis and not to confer a status on the family.

8. It is, thus, trite that appointment on compassionate

ground is not a absolute/unfattered right of dependents/heirs of the

deceased employee who died while in service. Normally, every

appointment of the offce is to be made strictly adhering to the

mandatory requirements of Articles 14 and 16 of the Constitution of

India. An exception of providing employment on compassionate

ground has been carved out in order to remove the fnancial

constraints on the bereaved family which has lost its bread earner.

9. It is true that position at the time of making application

for compassionate appointment is to be considered and subsequent

resolutions do not apply. It is also true that the Honourable

Supreme Court has allowed change of name of an heir of the

deceased employee with another heir. The aspect on which

compassionate appointments are to be made is fnancial condition of

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the family of the deceased employee and if, the competent authority

satisfes that without providing employment the family would not be

able to meet the crisis, then a job is to be offered to the eligible

member of the family. Moreso, the person claiming such

appointment must possess required eligibility for the post [MGB

Gramin Bank (supra)]. In the case of Umesh Kumar Nagpal vs. State

of Haryana and others reported in (1994) 4 SCC 138, the Honourable

Supreme Court has held thus :-

"The whole object of granting compassionate employment is, thus, to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post much less a post for post held by the deceased. What is further, mere death of an employee in harness does not entitle his family to such source of livelihood.

The Government or the public authority concerned has to examine the fnancial condition of the family of the deceased, and it is only if it is satisfed, that but for the provision of employment, the family will not be able to meet the crisis that a job is to be offered to the eligible member of the family. The posts in Classes III and IV are the lowest posts in non-manual and manual categories and hence they alone can be offered on compassionate grounds, the object

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being to relieve the family, of the fnancial destitution and to help it get over the emergency. The provision of employment in such lowest posts by making an exception to the rule is justifable and valid since it is not discriminatory. The favourable treatment given to such dependant of the deceased employee in such posts has a rational nexus with the object sought to be achieved, viz., relief against destitution. No other posts are expected or required to be given by the public authorities for the purpose. It must be remembered in this connection that as against the destitute famly of the deceased there are millions of other families which are equally, if not more destitute. The exception to the rule made in favour of the family of the deceased employee is in consideration of the services rendered by him and the legitimate expectations, and the change in the status and affairs of the family engendered by the erstwhile employment which are suddenly upturned.

It is further held in paragraph No. 6 that the

consideration for such employment is not a vested right which can be

exercised at any time in future.

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10. Another aspect which needs consideration is whether the

heirs of the employee were able to tide over the impact of death. In

the case of Local Administration Department and another vs. M.

Selvanayagam @ Kumaravelu (supra) it has been observed thus :-

9. In this case the respondent was only 11 years old at the time of the death of his father. The frst application for his appointment was made on July 2, 1993, even while he was a minor. Another application was made on his behalf on attaining majority after 7 years and 6 months of his fathers death. In such a case, the appointment cannot be said to sub-serve the basic object and purpose of the scheme. It would rather appear that on attaining majority he staked his claim on the basis that his father was an employee of the Municipality and he had died while in service. In the facts of the case, the municipal authorities were clearly right in holding that whit whatever diffculty, the family of Meenakshisundaram had been able to tide over the frst impact of his death. That being the position, the case of the respondent did not come under the scheme of compassionate appointments.

11. Keeping these principles in mind, it will have to be

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ascertained whether petitioner No. 2 is entitled to the employment on

compassionate ground. In the case at hand, admittedly, Deepak

Hiwrale passed away on 16th September, 2004. Petitioner No. 1 was

informed in the year 2019 that her name was struck off from the

waiting list as she had attained the age of 45 years. This

communication was made to her on 12th June, 2019. Original

Application No. 928/2018 was preferred to the Tribunal. This

application was made in the year 2018. Thus, the family survived for

a period of 15 years after the death of deceased Deepak Hiwrale. In

the case of Local Administration Department (supra), the facts were

almost similar. In that case, at the time of death of the employee,

his son was 11 years old and on attaining majority he staked his

claim for compassionate appointment. The Honourable Supreme

Court has held thus :-

9. In this case the respondent was only 11 years old at the time of the death of his father. The frst application for his appointment was made on July 2, 1993, even while he was a minor. Another application was made on his behalf on attaining majority after 7 years and 6 months of his fathers death. In such a case, the appointment cannot be said to sub-serve the basic object and purpose of the scheme. It would

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rather appear that on attaining majority he staked his claim on the basis that his father was an employee of the Municipality and he had died while in service. In the facts of the case, the municipal authorities were clearly right holding that with whatever diffculty, the family of Meenakshisundaram had been able to tide over the frst impact of his death. That being the position, the case of the respondent did not come under the scheme of compassionate appointments.

12. When this legal position is applied to the facts of the

present case, what emerges is that after death of Deepak Hiwrale, the

family survived for 14 years and then application was made to the

Tribunal as change of name was not favourably considered by

respondent No. 2. This clearly shows that the family could survive

the impact of death. In such a case, appointment on compassionate

ground is not a necessity. The learned Tribunal was right in

dismissing the application. Hence, we do not see any reason to

interfere with the order of the learned Tribunal. In the case of State

of Maharashtra and others vs. Pravin in Civil Appeal No. 1385/2017

decided on 3rd February, 2017, it has been held that application for

appointment on compassionate ground cannot be kept pending for

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indefnite period and if no vacancy is available within a reasonable

time, the claim cannot be thereafter entertained. In the case at hand

also, vacancy was not available for a considerable period. For this

reason also, we do not deem it appropriate to interfere with the order

passed by the learned Tribunal. Petition is, therefore, devoid of any

substance. Hence it is dismissed.

( M. G. SEWLIKAR )                           ( S. V. GANGAPURWALA )
       Judge                                           Judge

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