Bombay High Court

State Of Maharashtra Through Addl ... vs Rehana Akbar Shaikh on 3 February, 2023

Bench: Sandeep V. Marne

         Digitally
         signed by
VINA     VINA ARVIND
         KHADPE
ARVIND   Date:
KHADPE   2023.02.04
         12:36:13
         +0530         Vina Khadpe
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                                                                           (37) wp 9197.2022.doc


                               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                      CIVIL APPELLATE JURISDICTION


                                           WRIT PETITION NO.9197 OF 2022

                         1. The State of Maharashtra            ... Petitioners
                            through Addl. Chief Secretary,      (Orig. Respondents)
                            Home Dept., Mantralaya,
                            Mumbai - 32
                        2. The Superintendent of Police,
                           Pune Rural, Chavan Nagar
                           Pune 411 001
                                     vs.
                         1. Smt. Rehana Akbar Shaikh            ... Respondents
                            Age - 49 years, Occ.; Nil
                            R/at Flat No.102, Razia Manzil,
                            Opp. To New Court Building,
                            At & Post: Dound, Dist. Pune
                        2. Shri Anis Akbar Shaikh
                           Age: 22 Yrs. Occu. Nil
                           R/o. Flat No.102, Razia Manzil

                       Mr. M. M. Pabale, AGP for Petitioner.

                       Mr. Rajesh M. Kolge for Respondent Nos.1 and 2.


                                               CORAM : S.V. GANGAPURWALA, ACJ. &
                                                        SANDEEP V. MARNE, J.

                                     RESERVED ON : 31 JANUARY, 2023
                                PRONOUNCED ON : 03 FEBRUARY, 2023



                       JUDGMENT ( Per SANDEEP V. MARNE, J.) :

1. Rule. Rule made returnable forthwith. With consent of

both the sides, the petition is taken up for fnal hearing. Vina Khadpe 2 / 11 (37) wp 9197.2022.doc

2. The State of Maharashtra has fled the present Petition

challenging judgment and order dated 9th May 2019 passed by

the Maharashtra Administrative Tribunal, Mumbai

("Tribunal") partly allowing Original Application No.1091 of

2017 fled by Respondents seeking compassionate

appointment. The Tribunal has directed consideration of

Respondents' case for compassionate appointment.

3. Brief facts leading to fling of present Petition are that the

husband of Respondent No.1 and father of Respondent No.2,

Akbar Shaikh was working as Police Constable who died in

harness on 5th July 2000. On 24th December 2004, an

application was made for grant of compassionate appointment

in favour of Smt. Sherifa, the eldest daughter of late Akbar

Shaikh. Letter dated 8th November 2010 was issued to Sherifa

calling her upon to remain present with original documents as

few posts of junior clerks were proposed to be flled. Smt.

Sherifa, however, did not act on the requisition and instead the

mother made an application dated 6th December 2010

informing Petitioner that Smt. Sherifa was already married

and the mother is dependent on her minor son Anis aged 15

years. The mother therefore requested to place the name of

Anis on waiting list till he attained the age of 18 years. Anis Vina Khadpe 3 / 11 (37) wp 9197.2022.doc

made an application for compassionate appointment on 2nd

March 2015 and by letter/order dated 10th March 2017, the

application came to be rejected on the ground that it was not

permissible to substitute the name in the waiting list. The said

letter/order dated 10th March 2017 became the subject matter

of challenge before the Tribunal. Aggrieved by the rejection,

Respondents instituted Original Application No.1091 of 2017

before the Tribunal seeking compassionate appointment in

favour of Anis by substituting his name in the place of Smt.

Sherifa. By the judgment and order dated 9 th May 2019, the

Tribunal has proceeded to dismiss the Original Application.

4. Appearing for Petitioners, Mr. Pabale the learned AGP

would submit that compassionate appointment offered to Smt.

Sherifa by letter dated 8th November 2010, she failed to accept

the same. He would submit that Respondents cannot treat

compassionate appointment as a matter of right by

substituting the name of legal heirs of deceased. Relying on the

Government Resolution dated 20th May 2015, Mr. Pabale

would contend that substitution of name of legal heirs in the

waiting list is prohibited except for the reason of death of legal Vina Khadpe 4 / 11 (37) wp 9197.2022.doc

heir. Mr. Pabale relies on Apex Court judgment in N.C. Santosh

Versus State of Karnataka and ors 1

5. Per contra, Mr. Kolge, the learned counsel for

Respondents would oppose the Petition and support the order

passed by the Tribunal. He would submit that the case of

Respondents cannot be governed by the provisions of

Government Resolution dated 20th May 2015. He would rely on

provisions of Government Resolution dated 26th October 1994

which did not contain any prohibition on substitution of name

of legal heirs. Mr. Kolge would submit that letter dated 8th

November 2010 did not amount to an offer for compassionate

appointment. He would submit that letter merely called upon

Smt. Sharifa to produce documents. He would rely on the

following judgments;

(i) Smt. Pushpabai Wd/o Rajesh Bisne Versus State of Maharashtra and ors. 2

(ii) Malaya Nanda Sethy Versus State of Orissa and others 3

(iii) State of Maharashtra and ors Versus Smt. Anusaya V.

More and anr. 4

1 (2020) 7 SCC 716 2 WP No.5944 of 2018 Judgment of this Court (bench at Nagpur) decided on 22nd July 2019.

3 2022 LiveLaw (SC) 522 4 WP No.13932 of 2017 judgment of this Court decided on 18th July, 2018. Vina Khadpe 5 / 11 (37) wp 9197.2022.doc

(iv) Dhulaji Shrimant Kharat Versus State of Maharashtra and ors. 5

Mr. Kolge has also relied on some of the judgments passed by

the Tribunal.

6. We have heard the learned counsels for the parties. The

short issue involved in the present Petition is whether the

substitution of name of ward/legal heir of deceased employee in

the waiting list of compassionate appointment in the present

case is permissible. We must, at the outset, refer to

Government Resolution dated 20th May 2015 by which a

specifc prohibition is imposed on substitution of name of legal

heirs in the waiting list of compassionate appointment except

in the event of death of a legal heir. This Court in Smt.

Pushpabai Wd/o Rajesh Bisne (supra) has held that the

provisions of Government Resolution dated 20 th May 2015

cannot be applied retrospectively to a case where substitution

was sought before issuance of Government Resolution.

Furthermore, this Court in Dnyaneshwar Ramkishan Musane

has directed

deletion of condition banning substitution of name of legal

5 WP No.8771 of 2015 Judgment of this Court decided on 12 th December 2018.

6 WP No.6267 of 2018 Judgment of this Court (Bench at Aurangabad) decided on 11 March 2020.

Vina Khadpe 6 / 11 (37) wp 9197.2022.doc

heirs from Government Resolution dated 20th May 2015

holding the same as unjustifed.

7. Thus, the position that stands as of today is that the

condition banning substitution of name of ward in waiting list

in Government Resolution dated 20th May 2015 stands set

aside. Would this mean that in every case such substitution

must be allowed as a matter of course? A division Bench of this

Court (to which one of us was a member) had an occasion to

decide this issue in Akshaykumar Balaji Kesgire Versus State

of Maharahstra & Ors 7. In that case, father of petitioner

therein was working as an Assistant Teacher in Zillha

Parishad Primary School who expired on 28.11.2007 while in

service. Mother made an application for compassionate

appointment and by communications dated 17.10.2012 and

14.12.2012, mother was called upon to submit necessary

documents for further processing of compassionate

appointment. However mother failed to comply with the

requisition, on account of which though the employer was

willing to appoint mother, she could not be appointed. After

attaining age of majority, son made application on 18.01.2016

7 Writ Petition No. 11821 of 2019 decided by Bench at Aurangabad on 28 th

July 2022.

Vina Khadpe 7 / 11 (37) wp 9197.2022.doc

for compassionate appointment, which was rejected relying on

GR dated 20.05.2015. In the background of these facts, this

Court held as under:

8. The objective of grant of compassionate appointment is to enable the family to tide over the situation on account of sudden loss of income. In the present case the petitioner's father had expired on 28.11.2007 and by the time the case of the mother was being considered for grant of compassionate appointment, a period of fve years had already passed. If indeed, the family was in need of immediate fnancial assistance in the form of compassionate appointment, the mother would have acted upon the communications issued by the respondent No. 2 and cooperated for consideration of her case for grant of compassionate appointment. Instead of doing so, the mother expressed inability to take up the job without assigning any particular reason. In these circumstances, we are of the opinion that the judgment in the case of Dnyaneshwar (supra) is clearly distinguishable.

(emphasis & underlying supplied)

This Court has thus distinguished the judgment in

Dnyaneshwar Ramkishan Musane (supra) in a case where

offered appointment is refused and then substitution of name

of a ward is sought.

8. Facts of the present case are somewhat similar to

Akshaykumar Balaji Kesgire (supra). Smt. Sherifa was offered

compassionate appointment by letter dated 8th November

2010. If Smt. Sherifa was to comply with the requisition made

in the letter dated 8th November 2010, she could have been

possibly appointed on compassionate ground. However, the

mother changed her mind and by citing the pretext of Smt. Vina Khadpe 8 / 11 (37) wp 9197.2022.doc

Sherifa's marriage, she thought of getting her minor son

appointed on compassionate ground. She accordingly made

application dated 6th December 2010. Anis, at that point of

time, was only 15 years old. Rather than accepting the

appointment offered to Smt. Sherifa, the mother thought it

appropriate to keep the case pending for three more years till

Anis attained the age of majority. This is thus not a simple case

of substitution of name of legal heirs and therefore the

judgment in Dnyaneshwar Ramkishan Musane (supra) will

have no application to the present case. For the same reasons,

the judgment in case of Smt. Pushpabai Wd/o Rajesh Bisne

(supra) cannot be made applicable to the unique facts of the

present case where compassionate appointment offered to

Smt. Sherifa was voluntarily given up for creating a claim in

favour of Anis who was minor in the year 2010.

9. It is also required to borne in mind that death of

employee occurred on 5th July 2000 and a period of more than

22 years has passed by now. It would be proftable to make a

reference to the recent judgment of the Apex Court in Central

Coal Field limited vs. Parden Oraon 8, in which the Apex Court

has made the following observations ;

8 Civil Appeal No. 897 of 2021 decided on 9th April 2021. Vina Khadpe 9 / 11 (37) wp 9197.2022.doc

8. The whole object of granting compassionate appointment is to enable the family to tide over the sudden crisis which arises due to the death of the sole breadwinner. The mere death of an employee in harness does not entitle his family to such source of livelihood. The authority concerned has to examine the fnancial condition of the family of the deceased, and it is only if it is satisfed that but for the provision of employment, the family will not be able to meet the crisis that the job is offered to the eligible member of the family1. It was further asseverated in the said judgment that compassionate employment cannot be granted after a lapse of reasonable period as the consideration of such employment is not a vested right which can be exercised at any time in the future. It was further held that the object of compassionate appointment is to enable the family to get over the fnancial crisis that it faces at the time of the death of sole breadwinner, compassionate appointment cannot be claimed or offered after a signfcant lapse of time and after the crisis is over.

10. In our view therefore, the Tribunal has committed an

error in permitting substitution of name of Smt. Sherifa with

that of Anis thereby keeping the case of compassionate

appointment alive for 22 long years.

11. What remains now is to deal with various judgments

relied upon by Mr. Kolge:

(i) The judgment of this Court in Smt. Pushpabai Wd/o Rajesh Bisne (supra) is distinguishable for the reasons recorded above.

(ii) The judgment of the Apex Court in Malaya Nanda Sethy (supra) reiterates well settled law that application for compassionate appointment must be decided as per the policy prevailing. This submission is referable to the contention of Mr. Kolge that the provisions of Government Resolution dated 20th May 2015 cannot be made Vina Khadpe 10 / 11 (37) wp 9197.2022.doc

application to the present case which relates to year 2000. Even if the case of the Respondents is to be dealt with in accordance with provisions of earlier GR of 1994, the same cannot be granted on account of uniq situation of one of the wards not taking up the appointment thereby indicating non- existence of destitute situation for family of the deceased.

(iii) The judgment of this Court in Smt. Anusaya V.

More (supra) was delivered on account of concession made by the State Government for inclusion of names of Respondent No.2 therein in the waiting list. The judgment therefore cannot be relied upon in support of the proposition that in every case such as substitution must permitted.

(iv) In the judgment of this Court in Dhulaji Shrimant Kharat (supra), the issue was about failure to fle application for compassionate appointment within one year. The judgment has therefore no application to the facts of the present case.

12. In our view, therefore, the Tribunal has committed an

error in partly allowing the Original Application of

Respondents. Respondents apparently labour under a

misconception that grant of compassionate appointment is a

matter of right, capable of being passed from one dependant to

another as per their choice. If the family was indeed destitute

and in need of any fnancial assistance, it could have Vina Khadpe 11 / 11 (37) wp 9197.2022.doc

immediately accepted the appointment offered to Smt. Sherifa

in the year 2010. The mother however was in a position to

wait for three more years till Anis attained the age of majority.

Anis himself did not make application for compassionate

appointment immediately in the year 2013 after he attained