Bombay High Court
The State Of Maharashtra vs Asha Sandesh Gaikwad on 10 August, 2022
Bench: Mangesh S. Patil, Sandeep V. Marne
1 wp 7918.22
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 7918 OF 2022
The State of Maharashtra and others .. Petitioners
Versus
Asha Sandesh Gaikwad .. Respondent
Shri S. B. Yawalkar, Addl.G.P. for the Petitioners.
CORAM : MANGESH S. PATIL AND
SANDEEP V. MARNE, JJ.
DATE : 10.08.2022.
FINAL ORDER (Per Sandeep V. Marne, J.) :-
. By the present petition, the petitioners challenge
judgment and order dated 27.11.2021 passed by the
Maharashtra Administrative Tribunal, Mumbai, Bench at
Aurangabad (for short 'Tribunal') in Original Application No.
44 of 2020. The original application was instituted by the
respondent herein seeking appointment on compassionate
ground on the post of clerk. By the impugned judgment and
order, the Tribunal allowed the original application and set
aside communication dated 20.05.2020 and directed
consideration of the claim of the respondent for appointment on
compassionate ground on the vacant post or by even creating
supernumerary post by taking into consideration the seniority
of the respondent in the waiting list.
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2. Mr. Siddhartha Yawalkar, learned Additional
Government Pleader appearing for the petitioners has raised
three principal objections to the impugned judgment and order
of the Tribunal. Firstly, he contends that the respondent had
crossed age of 45 years on passing of order dated 20.05.2020
rejecting the case for compassionate appointment. He relies
upon the provisions of the Government Resolution dated
06.10.2010 and submits that, the Tribunal ought not to have
directed consideration of the case of the respondent after
crossing age of 45 years more particularly when the said
Government Resolution dated 06.10.2010 was not under
challenge before the Tribunal. Secondly, Mr. Yawalkar takes
exception to the order passed by the Tribunal on the ground
that despite non existence of vacancy within 10% or 20% quota
meant for compassionate appointment, the Tribunal ought not
to have directed consideration of case of the respondent.
Thirdly, Mr. Yawalkar, has a serious objection about the
direction issued by the Tribunal for creation of supernumerary
post for the purpose of accommodating the respondent. He
seeks to distinguish the judgment of the Apex Court in the case
of Sushma Gosain and others Vs. Union of India and others
reported in AIR 1989 SC 1976.
3. In the light of the order that we propose to pass, we did
not deem it necessary to issue notice to or to hear the
respondent.
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4. The first objection raised by Mr. Yawalkar is that the
respondent had crossed age of 45 years on 20.05.2020 when her
case was rejected. The Tribunal has taken into consideration
circumstance of Covid-19 pandemic for the purpose of taking
out the respondent from the clutches of bar of attaining age of
45 years. The respondent attended the age of 45 years on
10.05.2020. She had filed application for compassionate
appointment on 25/26.08.2010, which remained pending with
the petitioners for 10 long years. The rejection was done only
after nation wide lock down was imposed on account of Covid -
19 pandemic. We do not find that there is any jurisdictional
error committed by the Tribunal in extending the benefit of non
applicability of the age bar imposed by the G. R. dated
06.10.2010. There is another aspect which is linked to the
second ground of challenge of non availability of posts, which
has connection to the first ground of challenge of crossing age
of 45 years. While we propose to deal with second objection
separately, suffice it to state that as per G. R. dated 11.09.2019
the petitioners ought to have arrived at a conclusion that there
was one post for compassionate appointment and ought to have
considered the case of the respondent immediately after
issuance of G. R. dated 11.09.2019. Therefore, even on this
count the rejection of the case of the respondent on the ground
of she crossing age of 45 years appears to be clearly erroneous.
5. Now coming to the second ground of challenge of non
availability of posts raised by Mr. Yawalkar. We find that the
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Tribunal has conducted the exercise of calling for information
with regard to the vacancy position for various years. The
Tribunal has arrived at a finding that applying the quota of
10% or 20% as contemplated in G. R. dated 02.05.2014 and
11.09.2019 respectively, atleast one post was available for
compassionate appointment applying decimal factor of 0.2, 0.4,
0.6 or 0.8 for various years. We do not find that any error is
committed by the Tribunal while arriving at a conclusion that
one post was available for consideration of the case of the
respondent for grant of compassionate appointment.
6. Also Mr Yawalkar, in usual fairness, has invited our
attention to a provision in the G R. dated 11.09.2019, which
does not seem to have been taken into consideration by the
Tribunal. By the said Government Resolution, while
prescribing a quota of 20% for determining the posts for
compassionate appointment, the State Government has
directed that if the decimal factor is less than 0.5% atleast one
post should be allotted for compassionate appointment. This
leaves no matter of doubt that on the basis of decimal factors
determined by the Tribunal, one post was most certainly
available for consideration of the case of the respondent for
compassionate appointment.
7. However, the third ground of challenge raised by Mr.
Yawalkar with regard to direction of the Tribunal for
creation of supernumerary post, in our opinion deserves to be
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upheld. For issuing said direction the Tribunal has relied upon
the judgment of the Apex Court in the case of Sushma Gosain
and others (supra). The direction to create supernumerary
post has been issued by the Apex Court in the case of Sushma
Gosain and others (supra) on account of peculiar circumstances
when a ban on appointment of ladies was imposed in the year
1985, whereas application for appointment on compassionate
ground was made by the appellant therein in November 1982.
The appellant therein had already passed the trade test and
interview, but her case was kept waiting till 1985 after which
ban came to be imposed on appointment of ladies. We,
therefore, are in agreement with the contention of Mr.
Yawalkar that the judgment in the case of Sushma Gosain and
others (supra) could not have been relied upon by the Tribunal
for issuance of direction for creation of supernumerary post for
accommodation of the respondent.
8. However, since we have arrived at a conclusion that
atleast one post was available for consideration of case of the
respondent, the issue of correctness of direction of the Tribunal
for creation of supernumerary post has, in that sense, become
academic.
9. In the result, we do not find any infirmity in the order
passed by the Tribunal, except to the extent indicated
hereinabove. We, therefore, propose to pass the following
order.
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ORDER
A. The judgment and order dated 27.11.2021 passed by the
Maharashtra Administrative Tribunal, Mumbai, Bench
at Aurangabad in Original Application No. 44 of 2020 is
upheld. The same is however modified to a limited extent
that there is no need to create a supernumerary post and
the case of the respondent be considered against the
available vacant post. The same cannot be rejected on
the ground of non availability of vacant post.
B. The petitioners are directed to consider the case of the
respondent for compassionate appointment within a
period of two (02) months from today.
C. The writ petition is accordingly disposed of without any
order as to costs.
[SANDEEP V. MARNE, J.] [MANGESH S. PATIL, J.]
bsb/Aug. 22
