Shri. Vivek Shankar Kore vs The State Of Maharashtra Through ...
2021 Latest Caselaw 13250 Bom

 Tauseef                                                  14-WP.2350.2020.doc

           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                   CIVIL APPELLATE JURISDICTION

                    WRIT PETITION NO.2350 OF 2020


Shri. Vivek Shankar Kore                          ...Petitioner
             V/s.
The State of Maharashtra & Ors.                   ...Respondents


Mr. Prashant Bhavake, Advocate for Petitioners.
Mr. Umesh H. Pawar, Advocate for Respondent Nos.6 and 7.
Mr. V. M. Mali, AGP for Respondent Nos.1 to 5.


                         CORAM       : R. D. DHANUKA, AND
                                       ABHAY AHUJA, JJ.

                         DATE        : 16th SEPTEMBER, 2021.

P.C. :

1. Rule. Mr. Mali, learned AGP for Respondent Nos.1 to 5 and Mr.

Pawar, learned counsel for the Respondent Nos.6 and 7 waives service.

2. By this petition filed under Article 226 of the Constitution of

India, the Petitioner is challenging the impugned Order dated 1 st February

2018, passed by the Respondent No.5-Education Officer rejecting the

proposal for grant of approval to the appointment of the Petitioner made

by the Respondent Nos.6 and 7 in the post of Peon on compassionate

basis. Father of the Petitioner was working on fully aided post of Peon in

Respondent No.7-Secondary School from the academic year 1991-92, till

his death on 4th May 2017 due to illness. The Petitioner was thereafter

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appointed on the said post on compassionate ground. The School

Committee issued appointment Order dated 26 th June 2017 in favour of

the Petitioner. The management applied for approval to the said post of

Peon at Respondent No.7-Secondary School with effect from 15 th June

2017. The said proposal is rejected by the Education Officer on the

ground by referring the Government Resolution dated 12 th February 2015

and the Government Resolution dated 23rd October 2013.

3. Mr. Bhavake, learned counsel for the Petitioner invited our

attention to the Judgment delivered by Divisional Bench of this Court

(Coram : R. D. Dhanuka & R. I. Chagla, JJ.) dated 30 th July 2021 in the

case of Sunil Gundu Desai V/s. State of Maharashtra and Others in Writ

Petition No.4673 of 2019 and would submit that after adverting to the

Judgment delivered by another Division Bench of this Court (Coram : S. C.

Dharmadhikari & Smt. Bharati H. Dangre, JJ.) on 11 th December 2018 in

case of Smt. Samita Sameer Desai and Another V/s. State of Maharashtra

and Another in Writ Petition No.7507 of 2016, this Court has held that the

appointment on compassionate basis is kept outside the purview of

general recruitment by Government Resolution dated 2 nd May 2012. The

said Judgment clearly applies to the facts of this case. We are bound by

the said Judgment.

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  Tauseef                                                     14-WP.2350.2020.doc

4. Insofar as the reference to the Government Resolution dated 23 rd

October 2013 in the impugned Order dated 1 st February 2018 is

concerned, the said Government Resolution also would not apply to the

Petitioner on the compassionate ground. Even otherwise, the said

Government Resolution does not apply with retrospective effect and

would not have any bearing on the appointment of Petitioner made in the

Respondent No.7-Secondary School earlier.

5. Mr. Mali, learned AGP for Respondent Nos.1 to 5 invited our

attention to the additional grounds raised in paragraph No.7 of the

Affidavit-in-reply filed by the Additional Government Pleader on 20 th June

2020. Learned AGP could not distinguish the Judgment of this Court

delivered on 30th July 2021 in case of Sunil Gundu Desai V/s. State of

Maharashtra and Others (supra). The Additional reasons recorded in the

Affidavit-in-reply in the first time cannot be read in to the impugned

Order. Reasons cannot be supplied for the first time in the Affidavit-in-

reply. We are not inclined to consider the additional reasons recorded in

the first title in the Affidavit-in-reply and thus those reasons are discarded.

6. We accordingly pass the following Order:

(a). Writ Petition is allowed in terms of prayer clause (b).

(b). It is, however, made clear that the individual approval shall

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be granted not within a period of two weeks but shall be

granted within four weeks from today. The Education

Officer shall release the requisite grant-in-aid on the said

appointment of the Petitioner in the post of Peon in the

Respondent No.7-School from the date of initial date of

appointment within four weeks from the date of granting

approval.

(c). Rule is made absolute. There shall be no order as to costs.

(d). Parties to act on the authenticated copy of this Order.

                       (ABHAY AHUJA, J.)                                  (R. D. DHANUKA, J.)




         Digitally
         signed by
         TAUSEEF
TAUSEEF LAIQUEE
LAIQUEE FAROOQUI
FAROOQUI Date:
         2021.09.20
         18:42:04
         +0530




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