Smt. Rekha Wd/O Gajanan Nandanwar ... vs The State Of Maharashtra, Thr. Its ...
2022 Latest Caselaw 10480 Bom

                                                             WP.5078.18.j
                                      1


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

WRIT PETITION NO. 5078 /2018

1) Smt. Rekha wd/o Gajanan Nandanwar Aged about 46 years, occu: Nil

2) Ku. Manisha d/o Gajanan Nandanwar Aged about 23 years, occu: student

Both R/o Rangarhattipura, Balapur Post and Taluka : Balapur, Dist. Akola. ..PETITIONERS

versus

1. The State of Maharashtra Through its Secretary Municipal Administration Department Mantralaya, Mumbai-400 032.

2)     The Commissioner and Director of
Municipal Administration

Office of Directorate of Municipal Administration Government Building, 2nd floor, Sir Pochkhanwala Marg, Warli, Mumbai-400 032.

3)    Commissioner and Regional Director
Municipal Administration,
Near Divisional Commissioner Office
Camp Road, Amravati, Dist. Amravati.

4)    The Collector, Akola.
Collector compound, Akola Dist. Akola.

5)   Chief Officer
Nagar Parishad, Balapur,Dist.Akola.                 ..   RESPONDENTS
                                                                                               WP.5078.18.j

..................................................................................................................

Mr A. P. Sadavarte, Advocate for petitioners Ms. N.P. Mehta AGP for respondent nos. 1 to 4 Respondent no.5 served.

................................................................................................

CORAM: SUNIL B. SHUKRE & ANIL L. PANSARE, JJ DATED : 11th October, 2022.

ORAL JUDGMENT: (PER SUNIL B.SHUKRE, J.)

1. Heard learned counsel for the petitioners and the learned

AGP for respondent nos.1 to 4.

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

with consent.

3. The petitioner no.2 is seeking an appointment on

compassionate basis on the ground that her father-Gajanan died in

harness way back in the year 2010.

4. Mr. Sadavarte, learned counsel for the petitioners submits

that initially petitioner no.1-mother of petitioner no.2, had applied for

such an appointment, but appointment was not offered to her before

she turned over-age. He further submits that she withdrew her

application and now it is her daughter, being the other legal heir who is

entitled to be granted compassionate appointment.

5. Ms.Mehta, learned AGP for the respondents 1 to 4

submits that law on the question is well settled. According to her, now WP.5078.18.j

petitioner no.2 cannot be granted compassionate appointment as a

considerable time has elapsed after the death of sole earning family

member of the petitioners. She further submits that even otherwise, the

compassionate appointment is an exception to the normal method of

recruitment, and it is provided for compassionate reasons upon the

death of employee who dies in harness without any kind of security

whatsoever. She further submits that compassionate appointment after a

lapse of about 12 years since the death of the employee would be

contrary to law and would also be violative of Article 14 of the

Constitution of India. She has placed reliance upon the law laid down

by the Hon'ble Apex Court, in the case of Ahmednagar Mahanagar

Palika v. Ahmednagar Mahanagar Palika Kamgar Union in Civil

Appeal No. 5944/2022 and also the full Bench judgment of this Court,

in the case of Om Bhagwanrao Anjanwad v. State of Maharashtra,

reported in 2022 (4) Mh.L.J. 723.

6. The learned counsel for the petitioners submits that while

there is no dispute about the general principles of law as propounded in

the case of Ahmednagar Mahanagar Palika ( supra), this case stands

on a foundation of different facts and, therefore, this case would be

governed by the view taken by the coordinate Bench of this court at

Nagpur in Writ Petition No. 6281/2017 (Roshan Kale vs. State) WP.5078.18.j

decided on 05.02.2020. He submits that in the case Roshan Kale

(supra), the Division Bench found that one associate professor had

failed to perform his duty of informing one of petitioners therein the

fact that the petitioner was eligible for compassionate appointment.

According to the learned counsel for the petitioners, in the present case

also, the respondent no.5 has failed to provide the compassionate

appointment within time and, therefore, now the right of the petitioner

no.2 to seek compassionate appointment cannot be denied to her and

this way the view taken in Roshan Kale's case is applicable to the facts

of the instant case.

7. Unfortunately, inspite of due service of notice on the Chief

Officer, Nagar Panchayat, Balapur, nobody has remained present for

respondent no.5. The absence of Chief Officer, Nagar Panchyat, Balapur

before this court, of course, has not come as a surprise to this Court, the

reason being that this Court has noted in plethora of cases where the

local authorities, such as Nagar Parishads, Municipal Councils, Nagar

Panchayats and Zilla Parishads are arrayed as party respondents that

they have formed almost a habit of remaining absent despite due service

of notice. This Court has also noticed that these local authorities do not

take proper care to file reply well in time. These observations, we may

make it clear that are subject to certain just exceptions wherein WP.5078.18.j

appropriate replies have been filed and proper representation was

ensured by and on behalf of the local authorities. Such cases are rare.

In fact, in one of the cases before us, we have directed the Chief

Secretary, State of Maharashtra to take appropriate action against the

erring Chief Executive officer. Compliance report in this regard would

of course be filed by the Chief Secretary in due time, but if we go by

the newspaper reports published in this regard, no action has been

taken by the Chief Secretary against the erring Chief Executive officer

and only office circular has been issued by him, highlighting the

importance of filing prompt response and ensuring proper

representation by these authorities before the court. Be that as it may,

we would presume that respondent no.5 is not interested in filing any

reply and admits the contents made in this petition.

8. Inspite of acceptance of the claim of petitioner no.2 by

respondent no.5 , we must say that the law settled by the Apex Court on

the question does not favour the petitioner no.2 in any manner. In the

case of Om Anjanwad (supra), concurring with the majority opinion, the

Hon'ble the Chief Justice writing his separate judgment, has observed

that no public office is heritable and that general rule of appointment to

public service is through open invitation and on merits and that

compassionate appointment is an exception to such general rule.

WP.5078.18.j

9. In the case of Director of Education (Secondary) and

another vs. Pushpendra Kumar and others : (1998) 5 SCC 192, the

Hon'ble Supreme Court has held that after passage of several years

after the death of the employee in harness, the application for making of

appointment on compassionate basis need not be considered and this is

also the view taken by the Supreme Court in another case i.e. Chief

Commissioner, Central Excise and Customs Lucknow and others vs.

Prabhat Singh : (2012 ) 13 SCC 412. Both these cases have been duly

considered by the coordinate Bench of this Court in Roshan Kale's case

(supra), as could be seen from the observations made in paragraph no.9

of the judgment but, upon consideration of the law so laid down by the

Apex Court, the Division Bench also took into account certain factors

which, in the opinion of the Division Bench, were peculiar to the case of

Roshan Kale's case. These factors are noted as factors (a) to (g) in

paragraph 10 of the judgment. Most of these factors, we must say, are

not present in this case. One of the factors which is conspicuously

absent in the present case is the desertion of petitioner no.2 by her

mother. In Roshan Kale's case, the mother of four minor children ( one

brother and two sisters), had deserted the children and her

whereabouts were not known and the Division Bench further noted that

four minor children were orphaned. All these factors particularly the WP.5078.18.j

factor of orphanage of the children who by the time the petition was

filed, had turned major, weighed with the Division Bench and, therefore,

the Division Bench found that the case of the petitioners therein was

quite distinct and unique, thereby making an exception to the general

rule of appointment to public service by open invitation and by

following the principle of equality for equally situated candidates. Such

are not the facts of the case in hand and, on the contrary, after having

withdrawn her claim seeking compassionate appointment by the mother

of petitioner no.2, the petitioner no.2 has shown her interest in seeking

appointment on compassionate basis. By this time, long period of

about 12 years has gone by, thereby extinguishing the dire need of

appointment in public service by making an exception to the general

rule of appointment by open invitation.

10. Even in the case of Ahmednagar Mahanagar Palika (supra)

the general principle of law to the effect that compassionate

appointment is always treated as an exception to the normal method

of recruitment, has been reiterated and, therefore, it has been held that

the appointment on compassionate ground cannot be extended to the

heir/s of the employee who stood retired on superannuation.

WP.5078.18.j

11. In view of the above, we find no merit in the petition. The

writ petition stands dismissed. Rule discharged.

                 JUDGE                             JUDGE

sahare




                                                           Digitally Signed ByNARENDRA
                                                           BHAGWANTRAO SAHARE
                                                           Location:
                                                           Signing Date:12.10.2022 19:00