Payal D/O. Puran Patle vs The State Of Maharashtra, Thr. Its ...
2022 Latest Caselaw 8371 Bom

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


                               WRIT PETITION No.382 OF 2022


        Payal d/o. Puran Patle,
        Age : 26 years,
        Occupation : Nil,
        R/o. Kudava, Tal. Gondia,
        Distt. Gondia.                                              :     PETITIONER

                                    ...VERSUS...

        1.    The State of Maharashtra,
              Through its Secretary,
              Rural Development Department,
              Mantralaya,
              Mumbai-32.

        2.    The State of Maharashtra,
              Through the Secretary of
              General Administration Department,
              Mantralaya,
              Mumbai.

        3.    The Zilla Parishad,
              Chandrapur,
              Through its Chief Executive Officer.             :        RESPONDENTS

        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
        Shri P.S. Kshirsagar, Advocate for Petitioner.
        Smt. S.S. Jachak, Assistant Government Pleader for Respondent Nos.1
        and 2.
        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=

        CORAM            :     A.S.Chandurkar & Urmila Joshi-Phalke, JJ.

        Arguments heard on               :   22nd August, 2022.
        Judgment delivered on            :   25th August, 2022.





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        ORAL JUDGMENT : (Per : Urmila Joshi-Phalke, J.)


        1.                Rule. Rule made returnable forthwith.

2. Heard Shri P.S. Kshirsagar, learned counsel for the

petitioner and Smt. S.S. Jachak, learned Assistant Government Pleader

for respondent Nos.1 and 2.

3. Father of the petitioner, namely, Shri Puran Mohanlal Patle

was appointed as a Live Stock Supervisor in the Zilla Parishad,

Chandrapur. He died on 17.7.2013 while in service. Mother of the

petitioner, namely, Smt. Devita Puran Patle had filed an application for

compassionate appointment on 5.8.2013. Her name was included in the

waiting list but due to health problem mother of the petitioner requested

to substitute the name of petitioner Payal Puran Patle. The Block

Development Officer, Panchayat Samiti, Bramhapuri forwarded the said

proposal to the respondent No.3 to substitute the name of petitioner in

the waiting list on 7.3.2014. Accordingly, name of the petitioner was

included in the waiting list published on 28.2.2015 at Serial No.157. The

name of the petitioner was continued in waiting list published on

1.11.2017. In view of the Government Resolution dated 20.5.2015 the

name of the petitioner was deleted from waiting list published in June

2018. Before deleting the name of the petitioner on 9.4.2018

respondent No.1 issued letter to the Chief Executive Officer, Zilla

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Parishad i.e. respondent No.3 informing that in view of Government

Resolution dated 20.5.2015 there is no provision to substitute the name

of other legal heirs. The name of other legal heirs could be included

only in case of death of the concerned applicant. In the light of the

above communication respondent No.3 issued a letter dated 5.7.2018 to

the petitioner informing that in view of above Government Resolution

her name could not be continued and name of her mother is to be

included. Said communication was replied by the petitioner by

informing that her name was included prior to said Government

Resolution, therefore her name could not be removed. However,

respondents included the name of her mother and removed her name.

Said action of the respondents is challenged by the petitioner in the

present petition. It is the contention of the petitioner that the action of

the respondent is illegal, arbitrary and liable to be set aside.

4. In response to the notice the respondents opposed the

petition on the ground that in the light of the Government Resolution

dated 20.5.2015 in Clause 1(c) "after the death of any employee the

name of the eligible candidate of the family once taken in waiting list of

compassionate appointment, then his/her name could not be substituted

by any other another eligible successor of the family." Thus, the

provision of substitution of name of candidate in the waiting list does not

exists in current policy. It is the contention of the respondent that if the

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death of a candidate of the waiting list is occurred then name of another

eligible candidate could be substituted on the place of original candidate.

Therefore, action of the respondent is justified and writ petition deserves

to be dismissed.

5. Heard learned counsel Shri P.S. Kshirsagar, for the

petitioner. He reiterated the contentions as per the petition and

submitted that said Government Resolution could not be applied

retrospectively. Prior to the said Government Resolution name of the

petitioner was included in the waiting list. Therefore, the action of the

respondents is illegal and liable to be set aside. In support of his

contention he relied upon the decision of this Court in Writ Petition

No.2014/2019, wherein it is held that such refusal of including the name

cannot be sustained in the eye of law. He also relied upon Dnyaneshwar

Ramkishan Musane Vs. State of Maharashtra and others, Writ Petition

No.6267/2018, decided on 11.3.2020, wherein this Court has held that

prohibition imposed by the Government Resolution dated 20.5.2015 that

name of any legal representative of the deceased employee would not be

substituted by any other legal representative seeking appointment on

compassionate ground is arbitrary, irrational and unreasonable and

violates the fundamental rights guaranteed by Article 14 of the

Constitution of India. It is further observed by this Court that as per the

policy of the State Government one legal representative of deceased

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employee is entitled to be considered for appointment on compassionate

ground. The prohibition imposed by the Government Resolution dated

20.5.2015 that if one legal representative of deceased employee stakes

claim for appointment on compassionate ground, then name of another

legal representative of that deceased employee cannot be substituted in

the list in place of other legal representative who had submitted her/his

application earlier does not further the object of the policy of the State

Government regarding appointments on compassionate grounds. Such

prohibition frustrates the object for which the policy to give appointment

on compassionate ground is formulated. He submitted that thus the

Government Resolution dated 20.5.2015 itself is held by this Court to be

illegal. He submitted that in fact the said Government Resolution is not

applicable in the present case as the name of the petitioner was included

prior to issuance of said Government Resolution, said Government

Resolution could not be applied retrospectively.

6. On the other hand learned Assistant Government Pleader

Smt. S.S. Jachak, for the respondent Nos.1 and 2 supported the stand of

the respondents and submitted that in view of the Government

Resolution the action of the respondents is justified one.

7. Heard both sides. Perused the record. It is not disputed

that petitioner's father namely Puran Mohanlal Patle was appointed as a

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Live Stock Supervisor in Zilla Parishad, Chandrapur. He died on

17.7.2013. His death certificate is on record. It is also not disputed that

the mother of the petitioner had filed an application for compassionate

appointment on 5.8.2013. The name of her mother was included in the

waiting list but on her request the name of the petitioner was substituted

in the waiting list on 28.2.2015. The waiting list published on 28.2.2015

shows the name of the petitioner at Serial No.157. The name of the

petitioner was further continued in the waiting list published on

1.11.2017. Subsequently, the petitioner had received a communication

from the respondent No.3 informing that her name is to be removed from

the list in accordance with the Government Resolution dated 20.5.2015.

She replied the said communication mentioning that her name was

included prior to said Government Resolution and therefore it could not

be removed. However, the respondent No.3 included the name of

mother of the petitioner in the waiting list. The communication dated

4.8.2018 by the original applicant mother of the petitioner also shows

that the name of the petitioner was included as per her consent, now she

has crossed the age of 44 and therefore the communication dated

5.7.2018 be set aside and name of the petitioner be continued in the

waiting list.

8. It is well settled that the appointment on compassionate

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

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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. The 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. In the present case after the death of the employee

immediately application was made on 5.8.2013 itself. In accordance

with the existing policy the name of the mother of the petitioner was

included in the waiting list. On her request the name of the petitioner

was included in a waiting list published on 28.2.2015. The Government

Resolution referred by the respondents was issued on 20.5.2015 i.e.

subsequent to the waiting list published by the respondents. Said

Government Resolution nowhere states that the Rule (c) would be

applicable to the earlier application, the clause (c) of the said

Government Resolution shows that there is no provision to substitute the

name of other legal heirs. It could be substituted only in case of death of

the original applicant. This Government Resolution is already held

contrary to the Article 14 of the Constitution of India. This Court in Writ

Petition No.6267/2018 in Dnyaneshwar Musane vs. State of Maharashtra

decided on 11th March, 2020 held that the Government Resolution dated

20.5.2015 is arbitrary, irrational and unreasonable and violates the

fundamental rights guaranteed by Article 14 of the Constitution. This

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Court further in the said decision held that as per the policy of the State

Government one legal representative of deceased employee is entitled to

be considered for appointment on compassionate ground. The

prohibition imposed by the Government Resolution dated 20.5.2015 that

if one legal representative of deceased employee stakes claim for

appointment on compassionate ground then name of other another legal

representative of that deceased employee cannot be substituted in the list

in a place of other legal representative does not further the object of the

policy of the State Government regarding appointments on

compassionate ground. Admittedly, such prohibition frustrates the object

for which the policy to give appointments on compassionate grounds is

formulated. Here in the present case the name of the petitioner was

already substituted prior to issuance of the said Government Resolution

dated 20.5.2015. The name of the petitioner was substituted on

28.2.2015 i.e. prior to issuance of said Government Resolution.

Therefore, said Government Resolution can not be applied in the case of

petitioner retrospectively. This Court in Writ Petition No.3492/2020

Santosh s/o. Sukhdeo Metkar vs. Sub-Divisional Engineer, Zilla Parishad,

Dharni, decided on 27.6.2022 has already held that once the name of the

petitioner was included in the waiting list after considering the record,

the action of the respondents without giving an opportunity to resist the

said ground is illegal and arbitrary. Here in the present case the

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communication by the respondents is already replied by the petitioner by

bringing the said fact to the notice of the respondents that her name was

included prior to the said notification but the respondents had ignored

the said fact and deleted her name. It was further brought to the notice

of the respondents that the original applicant is on the verge of

completing the age of 45 years. This fact is also ignored by the

respondents. As it is already observed that the said Government

Resolution could not be applied retrospectively, the action of the

respondents is illegal and unconstitutional.

9. In that view of the matter we find that the action of the

respondents is illegal, arbitrary and against the basic object of the policy

of giving appointment on compassionate ground. Hence, writ petition

succeeds. In the result, we proceed to pass following order :

ORDER

(i) The Writ Petition is allowed.

(ii) The order passed by the respondent No.3-Chief

Executive Officer, Zilla Parishad, Chandrapur dated 5.7.2018 is hereby

set aside.

(iii) It is directed that the petitioner's name shall be

restored in the waiting list issued by the respondents seeking

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appointment on compassionate basis that was published on 28.2.2015.

10. Rule is accordingly made absolute in the aforesaid terms.

There shall be no order as to cost.

                          (Urmila Joshi-Phalke, J.)                (A.S.Chandurkar, J.)




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