Sanjay Ramdas Dhote And Another vs The State Of Maharashtra, Thr. ...
2022 Latest Caselaw 12856 Bom

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

                        WRIT PETITION NO.1903/2022

1. Shri Sanjay Ramdas Dhote,
   aged about 37 years, Occ. Agricultural
   Labour and Marginal Farmer,
   r/o Purad (Punwat), Tq. Wani,
   Dist. Yeotmal.

2. Smt. Satyabhama w/o Ramdas Dhote,
   aged 57 years, Occ. Household,
   r/o Purad (Punwat), Tq. Wani,
   Dist. Yeotmal.                                               ...PETITIONERS


                              ...V E R S U S...


1. The State of Maharashtra, through
   its Principal Secretary, Rural Development
   Department, PWD Bhavan, 25, Marzaban
   Road, Fort, Mumbai - 400 001.

2. State of Maharashtra through its
   Principal Secretary, Department of
   General Administration, Mantralaya,
   Mumbai - 32.

3. Zilla Parishad Chandrapur through
   Chief Executive Officer, Chandrapur,
   Dist. Chandrapur.

4. Deputy Chief Executive Officer,
   (General Administrative Department)
   Zilla Parishad, Chandrapur,
   Dist. Chandrapur.                                         ...RESPONDENTS

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Mr. M. L. Chouhan, Advocate for petitioners.
Mr. A. S. Fulzele, Addl. G. P. for respondent nos. 1 and 2.
Mr. S. R. Agrawal, Advocate for respondent nos. 3 and 4.
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CORAM:- A. S. CHANDURKAR & ANIL L. PANSARE, JJ.
DATE :- 12.12.2022

JUDGMENT (Per: Anil L. Pansare, J.)

At the outset, learned counsel for the petitioners seeks

leave to amend the petition and the prayer clause to challenge the

appointment order dated 22.04.2022 issued by the respondent

no.3 in favour of younger brother of petitioner no.1.

Leave is granted as prayed for. Amendment be carried

out forthwith.

2. Rule. Rule is made returnable forthwith. Heard finally

by consent of learned counsel for the parties.

3. The petitioners are aggrieved by rejection of their

representation seeking to replace name of petitioner no.1 in place

of his younger brother in the wait list for compassionate

appointment and further on account of appointment order dated

22.04.2022 issued by the respondent no.3 in favour of the younger

brother of the petitioner no.1.

4. One Ramdas Dhote was working as Higher Grade Head

Master in Zilla Parishad Primary School, Paramdoli (Wani). He

expired in harness on 23.11.2010. The petitioner no.1 is elder son

of deceased Ramdas and petitioner no.2 is his wife. On 3 wp1903.22.odt

04.02.2011, Swapnil - younger brother of the petitioner no.1

applied for his appointment on compassionate ground. He has

allegedly on 17.12.2013 made a representation to the respondent

no.3, stating therein that the name of his elder brother i.e.

petitioner no.1 be substituted in place of his name in the wait-list

maintained by respondent nos. 3 and 4 for appointment on

compassionate ground.

5. The second representation was made on 11.01.2019,

again for substitution of name of petitioner no.1 in place of his

younger brother - Swapnil. Respondent no.3, did not take

cognizance of the said representations.

6. On 29.07.2020, the petitioner no.1 then thought it

proper to make representation with the same request viz. to

substitute his name in place of his brother - Swapnil. Again, there

was no response from respondent nos.3. The petitioner no.1,

therefore, made another representation dated 04.11.2020 with

similar request. On 07.12.2020, respondent no.4 issued a

communication to the petitioner no.1 mentioning therein that his

request for substitution of name cannot be acceded to in view of

the Government Resolution dated 20.05.2015. Later on, pending

petition, the respondent no.3 has issued an appointment order 4 wp1903.22.odt

dated 22.04.2022 in favour of the younger brother of the

petitioner no.1. According to the petitioners, both the acts are

contrary to the law and, therefore, not sustainable.

7. The respondent no.3 has disputed that on 17.12.2013,

Swapnil - younger brother of petitioner, has made a request to

substitute name of the petitioner no.1 in his place in the wait list.

According to the respondent no.3, Swapnil made an application on

04.02.2011. His second representation dated 11.01.2019 was

after a period of about eight years. The respondent no.3 does not

dispute the receipt of the second representation dated 11.01.2019

made by the petitioner no.1, but has disputed receipt of

representation dated 17.12.2013. The respondent nos. 3 and 4

further submit that the representation dated 11.01.2019 was

rejected by respondent no.4 vide communication dated

07.12.2020. The substitution was rejected in view of Government

Resolution dated 20.05.2015. It is then submitted that on

22.04.2022, the appointment order has been issued in favour of

Swapnil. The respondent nos. 3 and 4, accordingly submitted that

they have discharged their duty. Accordingly, they prayed for

dismissal of the petition.

8. We have given thoughtful consideration to the

submissions made by both the sides. Mr. M. L. Chouhan, learned 5 wp1903.22.odt

counsel for petitioners has urged that the respondent nos. 3 and 4

be directed to act upon the representation dated 17.12.2013. A

categorical prayer has been made to that effect. Mr. Agrawal,

learned counsel for respondent nos. 3 and 4, however contends

that the said representation was either not sent at all and if it was

sent, the same has not been received in the office of respondent

no.3. Thus, respondent nos.3 has disputed the issuance of

representation dated 17.12.2013. We have therefore inquired

with Mr. Chouhan, learned counsel for the petitioners, as to

whether the petitioners have obtained acknowledgment. He

answered in the negative. In that sense, there is nothing on record

that younger brother of petitioner no.1 has made such a

representation and in absence thereof, we are not inclined to

consider the prayer made by the petitioners to direct the

respondents to act upon the representation dated 17.12.2013.

9. So far as the communication dated 07.12.2020 is

concerned, the respondent no.4 has declined to substitute the

name of petitioner no.1 in view of the Government Resolution

dated 20.05.2015. We find that the reliance placed by respondent

no.4 on the Government Resolution dated 20.05.2015 to reject the

request of the petitioner is against the law laid down by the

coordinate bench of this Court in the case of Dnyaneshwar 6 wp1903.22.odt

Ramkishan Musane Vs. State of Maharashtra and Ors. 1 wherein

Government Resolution dated 20.05.2015 to the extent of

prohibiting the substitution of name, has been quashed. The

petitioners have also relied upon judgment in the case of Jayesh

s/o Jivan Dange Vs. The State of Maharashtra, through its

Secretary Rural Development Department, Mantralaya, Mumbai

and Ors.2 wherein the coordinate bench of this Court, of which one

of us (A. S. Chandurkar, J.) was a member, by referring to the

judgment of Dnyaneshwar's case supra observed that the

substitution of name of the petitioner therein could not have been

rejected by placing reliance upon Government Resolution dated

20.05.2015.

10. The impugned communication dated 07.12.2020

therefore is contrary to the law laid down by this Court. We are

therefore inclined to quash and set aside the said communication

and direct respondent no.3 to substitute name of petitioner no.1 in

place of his younger brother. Once the name of the petitioner no.1

is substituted, he would be entitled for consideration for

appointment on compassionate ground, if he is otherwise eligible.

The substitution of name of petitioner no.1 in the wait list will

further have impact on the appointment order dated 22.04.2022,

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issued by respondent no.3 in favour of younger brother of

petitioner no.1 because the name of petitioner no.1's brother

would stand deleted. Therefore, he cannot be appointed. Even

otherwise, pending petition, the respondent no.3 ought not to

have made such an appointment. The appointment order is,

thereore, liable to be quashed.

11. The question however remains as to whether the

appointment order could be quashed without giving an

opportunity of hearing to the beneficiary of the order i.e. the

younger brother of petitioner no.1. As such, the younger brother

has already communicated his desire to substitute name of

petitioner no.1 in his place and therefore he may not fall in the

category of an aggrieved person, if the appointment order is

quashed. However, by way of an abundant precaution, we deem it

proper to direct respondent no.3 to seek consent of the younger

brother of the petitioner no.1 for substituting petitioner no.1's

name in the wait list and upon consent so given, to recall the order

of appointment. Accordingly, we proceed to pass the following

order.

12. The prayer made by the petitioners to direct the

respondent nos.3 and 4 to act upon the representation dated

17.12.2013 is rejected.

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The impugned communication dated 07.12.2020 issued

by respondent no.4 in favour of petitioner no.1 is quashed and set

aside.

Respondent no.3 is directed to substitute name of

petitioner no.1 in place of his younger brother in the wait list

prepared for granting appointment on the compassionate ground.

The respondent no.3 shall call upon younger brother of

the petitioner no.1 and seek his consent prior to recalling the

impugned order dated 22.04.2022 and upon receiving such

consent, the impugned order shall stand recalled. Thereupon, the

claim of the petitioner no.1 for compassionate appointment shall

be considered by respondent no.3, in accordance with law.

Rule accordingly. No order as to costs.

(Anil L. Pansare, J.) (A. S. Chandurkar, J.)

kahale

Digitally signed byYOGESH ARVIND KAHALE Signing Date:12.12.2022 16:09