Ravi S/O Suresh Waatkar vs State Of Maharashtra, Thr. Its ...
2022 Latest Caselaw 7627 Bom

J.23.WP.7602.2018.odt                                   1


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

                WRIT PETITION NO.7602 OF 2018

      Ravi s/o Suresh Waatkar,
      Aged about 24 years,
      Occupation - Labour,
      R/o. Old Mortuary,
      Near Netaji Ward,
      Tah. Warora, Dist. Chandrapur
                                             ...PETITIONER

                            VERSUS

1.    State of Maharashtra,
      through its Secretary,
      Municipal Administration,
      Mantralaya, Mumbai

2.    Commissioner/Director,
      Municipal Administration,
      Directorate, Worli, Mumbai

3.    The Collector,
      Collectorate, Chandrapur,
      Dist. Chandrapur

4.    Municipal Council,
      Warora, through its Chief Officer,
      Warora, Dist. Chandrapur

5.    Municipal Council,
      Warora, through its
      President Aeytesham Ali,
      Municipal Council, Warora,
      Dist. Chandrapur
                                           ...RESPONDENTS
 J.23.WP.7602.2018.odt                                             2


_______________________________________________________

      Ms. Naziya Pathan, Advocate for the petitioner.
      Shri N.R. Patil, Assistant Government Pleader for
      respondent Nos.1 to 3/State.
      Shri S.A. Sahu, Advocate for the respondent No.4.
_______________________________________________________

            CORAM       :   A.S. CHANDURKAR AND
                            URMILA JOSHI-PHALKE, JJ.
            DATED       :   AUGUST 4th , 2022.


JUDGMENT (Per Urmila Joshi-Phalke, J.)

Heard learned counsel for the parties.

2. RULE. Rule made returnable forthwith.

3. The father of the petitioner was working as a 'Peon' in

the Municipal Council, Warora having been appointed on

09/11/1979. He died when he was in employment on

18/05/2000. After the death of father of the petitioner namely

Suresh, mother of the petitioner namely Tara wd/o Suresh Waatkar

had applied for appointment on compassionate ground on

24/06/2000. Said application was considered by respondent Nos.4

and 5 - Municipal Coucil, Warora by passing Resolution on

24/11/2000. Her name was entered in the waiting list as per

Resolution dated 24/11/2000. At the time filing application, she

was 39 years old.

4. It is the contention of the petitioner that from the year

2000 to 2012, respondents-authorities had not taken any steps for

considering the appointment of mother of the petitioner on

compassionate ground, therefore, she had made a representation to

the respondents-authorities stating that instead of her, name of her

son i.e. the petitioner - Ravi s/o Suresh Waatkar be substituted in

the waiting list. The respondents-authorities communicated vide

letter dated 31/12/2013 to the petitioner's mother that her name

had been excluded from the waiting list because she had crossed

the age of 45 years and now she is not eligible for the appointment.

Again petitioner's mother had sent representation to respondent

No.4 to consider the name of the petitioner for appointment on

compassionate ground. Respondent No.4 sought guidance from the

State of Maharashtra by communication vide letter dated

18/03/2014 and respondent No.2 had given authority to

respondent No.4 to decide the said representation as per rule.

Subsequently, the petitioner had also given the representation

dated 16/02/2016 to respondent No.4 for considering his name for

appointment on compassionate ground. It is the contention of the

petitioner that though there are clear directions of State of

Maharashtra to respondent No.4 but they had not taken any

cognizance about the proposal of the petitioner's appointment on

compassionate ground, due to which he is suffering from hardships.

Therefore, he filed present petition for seeking appropriate

directions to the respondents-authorities to consider his application

for appointment on compassionate ground.

5. In the reply, respondent No.4 took a stand that as per

the policy of the Government, the mother of the petitioner was not

entitled for compassionate appointment as she had crossed the age

of 45 years. Due to this reason, by communication dated

31/12/2013, the name of the mother of the petitioner was removed

from the waiting list of the candidates to be considered for

appointment on compassionate ground. The said decision has been

taken by respondent No.4 as per the policy of the Government i.e.

Government Resolution dated 06/12/2010. The said order and

action of removal of the name of the mother of the petitioner is not

challenged either by the petitioner or his mother. It is further

submitted by respondent No.4 that vide communication dated

18/03/2014, there was not a single post of Class-3 or Class-4

category to accommodate the petitioner. In fact, the father of the

petitioner expired in the year 2000 and thereafter the petitioner

and his family survives for 18 years without any recruitment,

therefore, granting relief to compassionate appointment no more

survives and writ petition deserves to be dismissed.

6. Heard Ms. Naziya Pathan, learned counsel for the

petitioner. She submitted that after the death of father of the

petitioner, his mother namely Tara wd/o Suresh Waatkar had

applied for the appointment on compassionate ground within

limitation period i.e. on 24/06/2000. Respondent No.4 in it's

meeting held on 24/11/2000 passed Resolution by considering the

application and resolved to enter the name of the mother of the

petitioner in the waiting list of the candidates who are to be

considered for appointment on compassionate basis. Accordingly,

the name of the mother of the petitioner was entered in the waiting

list which was published in the year 2003. She submitted that as

the appointment was not provided, the mother of the petitioner

followed up her requests but nothing happened regarding her

appointment, therefore, she again submitted her representation on

20/07/2009 and made a request that the name of her son i.e. the

petitioner-Ravi to be considered for the appointment on

compassionate ground. Her communication was replied by

respondent No.4 on 31/10/2009 by assigning reason that the

vacancy for Class-4 is not available. However, the application of

the mother of the petitioner had forwarded to the Collector,

Chandrapur for consideration. Again the mother of the petitioner

made representation on 27/12/2012 mentioning that her son Ravi

i.e. the petitioner had attained the age of majority and, therefore,

his name to be considered for the appointment on compassionate

ground by substituting his name in the waiting list. However, on

31/12/2013, respondent No.4 communicated that as the mother of

the petitioner had crossed age of 45 years and, therefore, her name

was deleted from the waiting list. Subsequent to the said

communication, again his mother filed representation for

considering the name of the petitioner for appointment on

compassionate ground. Subsequently, the present petitioner had

also made representation on 16/02/2016 for considering his name

for the appointment on compassionate ground. She submitted that

due to inaction on the part of respondent No.4, the petitioner was

not considered for the appointment on compassionate ground and,

therefore, the directions to be issued to respondent No.4 to

consider the requests of the petitioner for appointment on

compassionate ground.

7. Shri N.R. Patil, learned Assistant Government Pleader

for respondent Nos.1 to 3 and Shri S.A. Sahu, learned Counsel for

respondent No.4 have submitted that as per the policy of the

Government, the mother of the petitioner was not entitled for

compassionate appointment after the age of 45 years. It is also

submitted that initially the name of the mother of the petitioner

was taken in the waiting list but as she had crossed the age of 45

years her name was deleted. Learned Assistant Government

Pleader and learned Counsel for respondent No.4 invited our

attention towards the Government Resolutions dated 06/12/2010

and 21/09/2017 submitted that prior to 2010, the eligibility

criteria for making application for considering the name on

compassionate ground, the age limit was 40 years, it was extended

as per Government Resolution dated 06/12/2010 up to 45 years.

At the time of application in the year 2000, the mother of the

petitioner was 39 years old, therefore, initially her name was taken

in the waiting list. It is submitted by learned Assistant Government

Pleader that the Government Resolutions and Regulations which

were prevalent at the relevant time are to be considered and as per

the said rules since the mother of the petitioner has crossed age of

40 years, she became ineligible for consideration for appointment

on compassionate ground. Subsequent Government Resolutions

are not applicable for her and, therefore, rightly her name was

removed from the waiting list. He also invited our attention

towards the Government Resolution dated 21/09/2017 Clause 11

(AA) which says that the appointment would be available for the

legal representatives of the deceased employee till the age of 45

years. If the members whose names are entered in the waiting list

could not get the appointment till the age of 45 years, the names of

the said persons are to be deleted from the said waiting list. He

submitted in the light of the said condition, the name of the mother

of the petitioner was deleted from the said waiting list.

8. Ms. Naziya Pathan, learned Counsel for the petitioner

placed her reliance on the order passed in Writ Petition

Nos.3344/2021 (Anjali d/o Dashrath Chauhan Vs. The State of

Mah. and ors.) decided on 14/03/2022 and in Writ Petition

No.5944/2018 (Smt. Pushpabai wd/o Rajesh Bisne & anr. Vs. State

of Mah. & ors.) decided on 22/07/2019.

9. On the other hand, learned Assistant Government

Pleader invited out attention towards the order passed in Writ

Petition No.8042/2019 (Smt. Vibha Prabhakar Bhute & anr. Vs.

State of Mah. & ors.) decided on 10/08/2021 wherein it is held by

this Court that the object of compassionate appointment is to

provide immediate financial relief and support to the family which

has lost its bread winner and to enable such family to lead an

honourable life. But, when it is seen that the family is not in need

of any such support, compassionate appointment, which is an

exception to the general rule of making of public appointment by

following due process of law, cannot be given. He also relied upon

Malaya Nanda Sethy Vs. State of Orissa and ors. in Civil Appeal

No.4103/2022 wherein Hon'ble Apex Court has observed that the

claim should be considered as per the amended Rules that were

prevalent at the time of consideration of the application and not the

Rules that were prevalent on the death of the government servant.

10. He submitted that admittedly the name of the mother of

the petitioner was deleted from the waiting list on 31/12/2013 at

the relevant time, the petitioner had already attained the age of

majority. Neither the petitioner nor his mother had challenged the

said order and after five years, this petition is filed. There is no

explanation for the delay by the petitioner.

11. Heard both the sides and perused the record. It is an

admitted position that the father of the petitioner was working on

the post of 'Peon' with answering respondent and it is also not in

dispute that he died on 18/05/2000. It is also not in dispute that

the mother of the petitioner had filed an application for considering

her name for compassionate appointment on 24/06/2000. It is

also not disputed that respondent No.4 had considered the said

application and passed Resolution to take her name in the waiting

list on 24/11/2000. It is further an admitted position that said

proposal was forwarded by respondent No.4 to the Collector on

20/03/2001 for approval. The name of the mother of the

petitioner reflected in the waiting list till 2003. As per the waiting

list published by the respondent No.4 and as per the reply filed by

respondent No.4, for the first time the name of the mother of the

petitioner was removed on 31/12/2013 from the said waiting list.

It is a part of record that the mother of the petitioner and the

petitioner had made several representations to the respondents for

considering their names for appointment on compassionate ground.

It is apparent from the record that on 31/10/2009, respondent

No.4 communicated to the mother of the petitioner that due to

unavailability of vacancy of Class-4 they are unable to consider her

application for the appointment on compassionate ground but her

application is forwarded to the Collector for consideration.

Subsequent to the said communication, the mother of the petitioner

had made representation on 27/12/2012 and the petitioner had

made representation on 16/02/2016. The communication of

respondent No.4-Chief Officer, Municipal Council, Warora shows

that vide letter dated 31/12/2013 it had communicated to the

petitioner that the name of the mother of the petitioner was

removed from the waiting list.

12. The respondents have placed reliance on the

Government Resolution dated 06/12/2010 which shows that from

the date of issuance of said Government Resolution, the age limit

for submitting an application for the appointment on

compassionate ground is increased from 40 to 45 years. Said

Government Resolution made applicable from 06/10/2010. Thus it

shows that prior to 06/10/2010, the age limit provided for the said

appointment was 40 years. Subsequent Government Resolution

issued on 21/09/2017 further discloses that the maximum age limit

provided for submitting the application is 45 years. It is further

clarified that such provisions can be considered for appointment till

the age of 45 years, if the persons whose names are entered in the

waiting list could not get an appointment till the age of 45 years

their names are to be removed from the said waiting list.

Admittedly, said Government Resolution is not challenged by the

petitioner in the said petition. Even neither the petitioner nor the

mother of the petitioner had challenged the communication dated

31/12/2013 removing the name of the mother of the petitioner

from the waiting list. Subsequently in the year 2018, present

petition is filed by the petitioner.

13. It is well settled that the appointment of compassionate

ground has to be made in terms of the scheme and not otherwise.

The whole object of granting compassionate employment by an

employer being intended to enable the family members of a

deceased to come over the sudden financial crisis, appointment on

compassionate ground should be made immediately to redeem the

family in distress. It is also well settled that no one can claim

compassionate appointment by way of inheritance. Compassionate

appointment is a concession and not a right. It is held by the

Hon'ble Apex Court in the case of SAIL Vs. Madhusudan Das

(2008) 15 SCC 560 that compassionate appointment is a

concession and not a right and the criteria laid down in the Rules

must be satisfied by all aspirants and in the case of Kendriya

Vidyalaya Sangathan Vs. Dharmendra Sharma (2007) 8 SCC 148

further held that the employer cannot be compelled to make an

appointment on compassionate ground contrary to its policy. In the

case of Sanjay Kumar Vs. State of Bihar (2000) 7 SCC 192 it is held

by the Hon'ble Apex Court that there cannot be reservation of a

vacancy till such time as the applicant becomes a major after a

number of years, unless there are some specific provisions. It is

further held by the Hon'ble Apex Court in the case of The State of

Madhya Pradesh Vs. Ashish Awasthi in Civil Appeal No.6903 of

2021 decided on 18/11/2021 that as per the settled proposition of

law laid down by this Court for appointment on compassionate

ground, the policy relevant at the time of death of the deceased

employee only is required to be considered and not the subsequent

policy.

14. Thus in the catena of decisions, it is held that

compassionate appointment is a need-based concept which permits

a side-door entry in service; therefore, the policy behind it has to be

given strict interpretation. Full Bench of this Court in Writ Petition

No.3907 of 2021 (Smt. Nilima Raju Khapekar Vs. The Executive

Directo, Bank of Baroda, Baroda and ors.) decided on 22/02/2022

held that while answering the reference that the compassionate

appointment is a need-based concept which permits a side-door

entry in service; therefore, the policy behind it has to be given strict

interpretation. Being an exception to the normal rule for

recruitment in public service, including the guarantees of equality

flowing from Articles 14 and 16 of the Constitution, no such

appointment can be made dehors the scheme for compassionate

appointment which the employer has put in place for regulation of

the procedure for appointment.

15. As observed by this Court in Writ Petition

No.8042/2019 (Smt. Vibha Prabhakar Bhute & anr. Vs. State and

ors.) decided on 10/08/2021 that the object of compassionate

appointment is to provide immediate financial relief and support to

the family which has lost its bread winner and to enable such

family to lead an honorable life. But, when it is seen that the

family is not in need of any such support, compassionate

appointment, which is an exception to the general rule of making

of public appointment by following due process of law, cannot be

given.

16. In the present case also even after attaining the age of

majority on 03/10/2012, the petitioner had not taken any effective

steps for his appointment on compassionate ground. He neither had

challenged the order of removing the claim of his mother from

waiting list nor he claimed the consideration for appointment on

the compassionate ground by following due process of law. As per

the prevalent Rules and Regulations, the name of the mother of the

petitioner was removed from the waiting list as she had cross the

maximum age limit. Therefore, the action taken by respondent

No.4 appears to be legal and proper one. No interference is called

for. Hence the writ petition deserves to be dismissed.

17. We, therefore, proceed to pass the following order:

(a) The writ petition is dismissed with no order as to costs.

18. Rule stands discharged.

(URMILA JOSHI-PHALKE, J.) (A.S. CHANDURKAR, J.)

*Divya

DIVYA SONU BALDWA

04.08.2022 18:47