Gopal Dayanand Ghate vs The State Of Maharashtra And ...
2021 Latest Caselaw 15071 Bom

                                                                2-wp-439-2020 judg.odt



         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    BENCH AT AURANGABAD

                        WRIT PETITION NO.439 OF 2020

Gopal s/o Dayanand Ghate,
Age- 20 years, Occ. Nil,
R/o Ghate Niwas, Narayan Colony,
Kakde Plot, Osmanabad.                                      ...Petitioner

                 Versus

1.       State of Maharashtra
         Department of General Administration,
         Mantralaya, Mumbai,
         Through its Secretary.

2.       The Chief Executive Ofcer,
         Zilla Parishad, Osmanabad.                         ...Respondents

                                  ...

Mr. V.U. Jadhav, Advocate for the Petitioner. Mr. P.S. Patil, AGP for Respondent No.1/State. Mr. R.D. Raut, Advocate for Respondent No.2.

...

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

DATED : 20th OCTOBER, 2021

ORAL JUDGMENT (PER RAVINDRA V. GHUGE, J) :-

1. Rule. Rule made returnable forthwith and heard fnally by

the consent of the parties.

2. The petitioner has preferred prayer clause (B) and (C) as

under:

"B. To quash and set aside the impugned letter dated 4.7.2015 issued by the Respondent No.2 (Exhibit-F) rejecting application of the Petitioner dated 26.6.2015 for appointment on compassionate ground (Exhibit-E), by issuing appropriate writ, orders, or directions as the case may be.

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C. To direct the Respondent No.2 to consider application of the Petitioner dated 26.6.2015 for appointment on compassionate ground (Exhibit-E) and issue him the suitable appointment order by considering educational qualifcations, by issuing appropriate writ, orders, or directions as the case may be;"

3. Having considered the strenuous submissions of the

learned advocates for the respective sides on 13.10.2021 and today,

we have gone through the petition paper book with their assistance.

4. The following factors are relevant :

(i) The petitioner's father Dayanand Govindrao Ghate was a junior

engineer with the Zilla Parishad, Osmanabad in the Minor Irrigation

Department, having joined employment on 09.12.1985.

(ii) On 28.03.1997, the petitioner, (the male child in the family) was

born. He had two elder sisters by name Hemangini and Shubhangini.

(iii) On 19.05.2006, the petitioner's mother Savita Dyanand Ghate

died.

(iv) Within two months, the petitioner's father Dyanand Govindrao

Ghate died on 20.07.2006.

(v) These three children were rendered orphans. Hemangini was 15

years old, Shubhangini was 13 years old and the petitioner was 9 years

old.

(vi) On 03.05.2007, the Zilla Parishad granted pensionary benefts to

the legal heirs of Dayanand.

(vii) The aged grandfather of the petitioner, got both the daughters

(his grand daughters) married the moment they attained the age of 18

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years.

(viii) The petitioner joined the diploma in civil engineering course in

the Government Polytechnic College, at Miraj, District Sangli.

(ix) On 28.03.2015, the petitioner became 18 years of age.

(x) In June 2015, the petitioner qualifed in the diploma in civil

engineering.

(xi) On 26.06.2015, i.e. within three months of becoming 18 years of

age and in the same month in which he acquired the qualifcation of

diploma in civil engineering, the petitioner applied for compassionate

appointment.

(xii) Ever since the fling of his application, the petitioner has been

made to run from pillar to post and fnally had to approach this Court on

22.12.2017 for seeking redressal.

(xiii) Government Resolution dated 21.09.2017 provides vide clause

7A of Annexure A to the government resolution, that after an employee

(ofcer) working in the Zilla Parishad dies in harness, it shall be the

responsibility of the establishment ofcer to intimate the bereaved

family, after 15 days of the death, the eligibility of any member of the

family for compassionate appointment and details of the rights of the

family members.

(xiv) Admittedly, the Zilla Parishad has not taken the eforts to convey

such information to the grandfather of the petitioner, much less,

intimating any of the minor children.

(xv) Clause 10A under annexure A to the government resolution

mandates that the eligible member shall apply within one year, for

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seeking compassionate appointment.

(xvi) Clause 10AA indicates that if there are more than one legal heirs

of the deceased employee, all of whom are minors, one shall apply for

compassionate appointment within one year of attaining majority which

is 18 years of age.

5. The learned advocate for the Zilla Parishad has relied

upon a brief afdavit in reply dated 27.09.2021 fled by the Junior

Administrative Ofcer. The said afdavit contains 4 paragraphs. The

frst paragraph is inconsequential. The learned advocate relies on

paragraph 2 to submit that this Court has delivered a judgment on

03.04.2018 in Writ Petition No.7648 of 2015 which is confrmed by the

Hon'ble Apex Court in SLP No.19252 of 2018, vide order dated

06.09.2021. No further details are set out in the paragraph.

6. The learned advocate for the Zilla Parishad, therefore,

relies upon the judgment dated 03.04.2018 delivered in Writ Petition

No.7648 of 2015. In the said case, an application for compassionate

appointment had to be made within three months from the date of

death. There was no embargo as regards the monthly income or the

wealth of the bereaved family. In the said case, the petitioner Seema

Kausar d/o Mohammad Nasiruddin applied when she was 24 years of

age. She had one elder sister and one younger sister, both of whom

were married. Besides, she had two brothers who were 18 years and

12 years of age. Relying upon the judgment delivered by the Hon'ble

Apex Court in State of Haryana Vs. Rani Devi, (1996) 5 SCC 308

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laying down the law that compassionate appointment is aimed at tiding

over sudden crisis in the family and such appointment has to be

granted to a family who has no means of livelihood (Umesh Kumar

Nagpal Vs. State of Haryana, (1994) 4 SCC 138), this Court held

that delay in making the application and passage of many years, would

not entitle a candidate from seeking compassionate appointment.

7. We have no doubt of any nature whatsoever in view of the

settled law that an application belatedly fled and after decades of the

death of the bread earner, should not be entertained. The facts

emerging in Seema Kausar (supra) are quite diferent than the facts in

this case reproduced herein-above. The mother of the petitioner died

two months prior to death of the father. The three children comprising

of two daughters, all of whom were minors, were rendered orphans as

they lost both the parents in a span of 60 days. The aged grandfather

ensured that the daughters got married as soon as they become 18

years of age.

8. One cannot expect an aged grandfather to take care of the

petitioner. In fact, it should be exactly the other way round. It is the

grandson who has to earn and take care of his grandfather who was

their savior when these three siblings were rendered orphans when

they were minors. So also, the petitioner has not been sitting idle or

enjoying life at the cost of his grandfather. He studied well and

acquired diploma in civil engineering qualifcation. He received his

diploma qualifcation when he was 18 years and 3 months old and on

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the basis of such qualifcation, he applied within 3 months after

becoming 18 years of age, when the rule prescribes an application to

be fled by an eligible person who becomes 18 years of age, within one

year of attaining majority.

9. It is painful that the Zilla Parishad, which should behave

like a model employer, has been negating the right of the petitioner

though the application was made on 26.06.2015. His valuable six

years have been wasted only by the Zilla Parishad. Nobody else can

be blamed for the denial in granting compassionate appointment to the

petitioner. No litigant can take advantage of his own wrong, much less

an undue advantage. Zilla Parishad, Osmanbad has done exactly this

by refusing employment to the petitioner for six long years. What

surprises us is that the Zilla Parishad expects the grandfather of the

petitioner to continue to support his livelihood. This is an inhumane

approach.

10. This Court, at the Nagpur Bench, has delivered a

judgment in the matter of Roshan Vitthal Kale and Ors Vs. The

State of Maharashtra and Ors, 2020 (3) Mh.L.J. 470, which deals

with a similar case, as like clause 7A of the annexure to the

Government Resolution dated 21.09.2017, which, as per the Zilla

Parishad, is squarely applicable to the petitioner. The said clause

mandates the establishment ofcer of the Zilla Parishad to apprise the

family of their right to have one eligible adult person to seek

compassionate appointment. Clause 7A further requires that

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necessary papers will also have to be got flled in by the establishment

ofcer from the family member who is eligible to be appointed. This has

not been done by the Zilla Parishad.

11. As such, in the peculiar facts of this case, we do not fnd

that the passage of time from the death of the father of the petitioner,

the bereaved family was able to generate earnings and sustain itself.

The facts of this case, as reproduced above, are glaring. The

petitioner had approached us when he was 20 years of age and is

about 24 years of age today. Considering his educational

qualifcations, he can be appointed by the Zilla Parishad as a Junior

Engineer.

12. In view of the above, this petition is allowed. The

impugned letter dated 04.07.2015 issued by the Zilla Parishad denying

the application of the petitioner dated 26.06.2015, is quashed and set

aside.

13. We direct respondent no.2 to enlist the petitioner in the list

of eligible candidates for compassionate appointment and his seniority

for being appointed as a Junior Engineer whenever the post is vacant,

shall depend on the date of his fling of application which is 26.06.2015

and he shall be enlisted in such list based on the said date and not from

the date of this order.

14. Rule is made absolute in the above terms.

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