Sangita Wd/O. Gajanan ... vs State Of Maha. Thr. Secretary, ...
2021 Latest Caselaw 16474 Bom

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                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                        NAGPUR BENCH, NAGPUR.


                             WRIT PETITION NO. 2244                    OF 2021


          PETITIONERS :                  1) Sangita Wd/o Gajanan Uplanchiwar,
                                            Aged about 51 yrs., Occ. Housewife, R/o
                                            Gondpipri,   Tah.    Gondpipri,   Distt.
                                            Chandrapur.

                                         2) Dhruv S/o Gajanan Uplanchwar, Aged
                                            about 22 yrs., Occ. Student, Both r/o
                                            Ward No.2, Indira Nagar, Gondpipri, Th.
                                            Gondpipri, Dist. Chandrapur.

                                               ...VERSUS...

          RESPONDENTS :                  1) State of Maharashtra,                   through its
                                            Secretary,  Department                   of   Village
                                            Development & Water                     Conservation
                                            Mantralaya, Mumbai-32.

                                         2) State of Maharashtra, through its
                                            Secretary, Department of General
                                            Administration, Mantralaya, Mumbai-32.

                                         3) Zilla Parishad, Chandrapur, through its
                                            C.E.O. Chandrapur, Tah. & Distt.
                                            Chandrapur.

          -------------------------------------------------------------------------------------------
                        Mr.A.K.Waghmare, counsel for the petitioners.
                Mr.D. P. Thakre, Addl.G.P. for the respondent Nos.1 and 2.
                         Mr. A.P.Thakre, counsel for respondent No.3.
           -------------------------------------------------------------------------------------------



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                                           CORAM : SUNIL B. SHUKRE &
                                                   ANIL L. PANSARE, JJ.

                                           DATE    : 29.11.2021


          ORAL          J U D G M E N T (Per : Sunil B. Shukre, J.)


                           Heard.

2. Coming to the merits of the matter, we find that this

petition now would require final hearing. Hence, Rule. Rule made

returnable forthwith. Heard finally by consent of the learned

counsel appearing for the parties.

3. As per the order passed on 11th August, 2021,

respondent No.3-Chief Executive Officer, Zilla Parishad,

Chandrapur was required to remain personally present before the

Court. Her personal presence was to take effect on 30 th November,

2021 but, by seeking circulation of this matter, learned counsel for

respondent No.3-Chief Executive Officer, Zilla Parishad,

Chandrapur got the hearing preponed to this day, the 29 th day of

November, 2021. If the preponement of the date of hearing was

obtained, it only meant that the personal presence of Chief

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Executive Officer, Zila Parishad, Chandrapur was also prepared

and it would take effect on 29th November, 2021. However, Chief

Executive Officer, Zilla Parishad, Chandrapur is absent. But,

learned counsel for the respondent No.3-Zilla Parishad

Chandrapur is present. There is thus non-compliance with the

order passed on 16th November, 2021.

4. On 15th November, 2021, an important development

was brought to the notice of this Court by Shri Waghmare, learned

counsel for the petitioners. He informed the Court that during

pendency of this petition, on 29th June, 2021, Aditya Gajanan

Uplanchiwar was appointed with a direction to join on duty within

30 days of the order. This order dated 29 th June, 2021 was issued

by respondent No.3 knowing it fully well that Aditya Gajanan

Uplanchiwar was severely suffering from the consequences arising

from damage to both of his kidneys and thus was not able to

accept the appointment and join on duty and that respondent

No.3 also knew it fully well that application of petitioner No.2 for

substituting name of Aditya Gajanan Uplanchiwar for the purpose

of compassionate appointment was already made by him on

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14th September, 2014 and that his name had also been referred to

in the remark column of the waiting list published by Zilla

Parishad, Chandrapur on 1st February, 2019. Respondent No.3

knew that in the waiting list dated 1 st February, 2019, in the

remark column, cognizance of the application of the petitioner

No.2 dated 16th September, 2014 was already taken. Thus,

respondent No.3 also knew that by this petition, the petitioner

No.2, relying upon the view taken by this Court in the judgment

dated 7th October, 2020 in Writ Petition No.2014 of 2019, had

prayed for substitution of his name for the name of Aditya

Uplanchiwar on the ground that the prohibition contained in the

GR dated 20th May, 2015 did not apply to him. In spite of the

respondent No.3 having possessed the knowledge as stated above,

issued appointment order to a person, who was physically

incapacitated to accept the appointment and join on duty. It was

in this background that a contention was raised on behalf of the

petitioners that the appointment order dated 29th June, 2021 was

issued in order to frustrate the effort of the petitioners to secure

appointment for petitioner No.2 on compassionate ground. This

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Court, therefore, noting a summary of these facts in the order

dated 15th September, 2021 directed the respondent No.3 to

explain action of Zilla Parishad taken as per the letter dated 29 th

June, 2021. But, no explanation, however, has been filed by the

respondent No.3 so far. Thus, there is also non-compliance with

the direction issued by this Court on 15th September, 2021.

5. The discussion thus far made would show that

respondent No.3 has not complied with the directions issued by

this Court on two occasions, firstly on 15 th September, 2021 and

secondly, on 16th November, 2021. It is quite clear that this matter

has not been conducted by respondent No.3 with reasonable care

and dispatch which is expected of an officer occupying a

supervisory position such as of Chief Executive Officer of Zilla

Parishad, Chandrapur. We hope that in future, respondent No.3

would exercise due diligence and due care in attending to such

matters and would not do anything which could be called as

interference with the administration of justice. In fact, by issuance

of the appointment order dated 30 th June, 2021, prima facie, such

interference has already occurred. But, this is the first occasion

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that we have come across such an instance in the present case,

and so we would not like to take any further action in the matter.

But, as expressed by us already, the respondent No.3 would be

careful in future.

6. Civil Application (w) No.1865 of 2021 dated 23 rd

November, 2021 has been filed on behalf of respondent No.3 and

today it is fixed for hearing and necessary direction. The

application seeks to explain the absence of learned counsel for

respondent No.3 on the last date and it is attributed to sudden

illness of the mother of learned counsel for respondent No.3. The

explanation given in the application, considering the medical

emergency stated therein, has to be accepted and we accept the

same. But, we do not appreciate the manner in which this

application has been signed and solemnly affirmed. This

application has been signed not by respondent No.3, but by

learned counsel for respondent No.3. The application, however,

has been solemnly affirmed by the Chief Executive Officer, Zilla

Parishad, Chandrapur. The solemn affirmation states, "that the

contents of paras 1 to 5 above are drafted as per the official record

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available with the office of Zilla Parishad and read over to me in

vernacular; and information received by counsel which I believe to

be true and correct to the best of my personal knowledge and

belief". This solemn affirmation, in our view, is no affirmation in

law. The affirmation has been done on two counts, firstly, on the

basis of official record available with the office of Zilla Parishad,

and secondly, on the basis of information received by counsel

which is believed to be true and correct by the deponent making a

solemn affirmation. When the medical emergency of the mother

of learned counsel for respondent No.3 had occurred, it is obvious

that it could not have been a part of the official record of the Zilla

Parishad and that it could also not have been something which

could be said to be an information received by the learned

counsel. It was nothing but the knowledge personally possessed

by the learned counsel and therefore, the solemn affirmation

ought to have been made in a proper manner. In fact, the

application itself should have been signed by respondent No.3

after making due enquiry as to what happened on the last date of

hearing which was 16th November, 2021, but that did not happen.

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So, here also we find that respondent No.3 has not exercised

appropriate care which was expected of a supervisory officer like

the Chief Executive Officer, Zilla Parishad, Chandrapur.

7. Although, we have brought on record the manner in

which this matter has been conducted by and for respondent No.3,

we do not propose to proceed further on this aspect of the matter

as we have already said that in future respondent No.3 would

have to be careful in such matters.

8. Coming to the merits of the matter, we find that the

issue involved in this petition is squarely covered by the view

taken by this Court in Writ Petition No.5944 of 2018, decided on

22nd July, 2019. The application of petitioner No.2 was much

before the GR dated 20th May, 2015 and that the respondent No.3

had also taken a note of the application in the waiting list dated 1 st

February, 2019. Such being the facts of the case, now the name of

the petitioner No.2 would have to be taken in the waiting list with

effect from the date on which he attains majority, which would be

14th of September, 2017, which has arrived at after the GR dated

20th May, 2015 has come into force.

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          9.               In view of above, we direct that the name of

petitioner No.2 be taken on the waiting list and assigned

appropriate seniority from the date on which petitioner No.2 has

attained majority. We also direct that the appointment order

dated 30th June, 2021, as per the condition No.1 stated therein,

shall be treated as cancelled.

10. Rule is made absolute in the above terms. No costs.

                       (ANIL L. PANSARE, J)                 (SUNIL B. SHUKRE, J)




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