Bombay High Court
Shubhangi Vitthal Kamodkar vs The State Of Maharashtra And Ors on 2 May, 2023
Bench: R.D. Dhanuka, Gauri Godse
2023:BHC-AS:13239-DB
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Iresh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 4061 OF 2021
Shubhangi Vitthal Kamodkar
Bhagwa Chowk, Opp. Gajanan Baug,
Shivaji Nagar, Jail Rd., Nashik Rd.,
Nashik ....Petitioner
V/s.
1. The State of Maharashtra
Urban Development Department,
Through its Addl. Chief Secretary,
Mantralaya, Mumbai 32.
2. The Commissioner
Nashik Municipal Corporation,
Nashik.
3. The Dy. Commissioner
Public Service Department,
Nashik Municipal Corporation,
Nashik. ....Respondents
Mr. Yashodeep Deshmukh along with Ms. Vaidehi Deshmukh, Ms.
Aditi Athavale i/b Mr. Vinod P. Sangvikar for the Petitioner
Mr. Dinesh Kadam for Respondent Nos. 2 & 3.
Mr. V. S. Gokhale, 'B' Panel counsel for Respondent No. 1
CORAM: R. D. DHANUKA &
GAURI GODSE, JJ.
RESERVED ON: 17th APRIL, 2023.
PRONOUNCED ON: 2nd MAY, 2023.
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JUDGMENT: (PER: GAURI GODSE, J.)
1. This Petition is filed for quashing and setting aside the letter
dated 22nd June 2021 issued by the Deputy Commissioner, Public
Service Department of Nashik Municipal Corporation. The Petitioner
has also prayed for issuing directions for substituting the name of
the Petitioner in place of her brother's name mentioned at serial no.
22 in the waitlist maintained by Nashik Municipal Corporation for
appointment on compassionate ground.
2. It is the case of the Petitioner that the Petitioner's father was
employed by Nashik Municipal Corporation as a senior clerk, and he
worked in that post till his death. The Petitioner's father expired on
27th April 2014 while discharging his duties. After the demise of
Petitioner's father, her brother Gouresh Kamodkar who was then
eligible from the family for appointment on compassionate ground
filed an application on 17th May 2014. The Petitioner's case is that
she completed her graduation in the year 2018. Considering her
qualification, she became eligible to seek an appointment on
compassionate ground. Hence, by letter dated 5th June 2021, she
requested the Nashik Municipal Corporation to consider her
appointment on compassionate ground and substitute her name in
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place of her brother, who was already listed on the waitlist. The
Petitioner's brother submitted no objection to such substitution of
the name in the waitlist.
3. The Deputy Commissioner, Public Service Department of
Nashik Municipal Corporation, by letter dated 22nd June 2021,
informed her brother Gouresh Kamodkar to submit the documents
pursuant to his application for the purpose of confirmation of his
candidature in the waitlist for appointment on compassionate
ground. It is the case of the Petitioner that though the Petitioner's
application dated 5th June 2021 for substituting her name in place of
her brother was pending, a requisition for compliance was issued to
her brother. The Petitioner, therefore, contended that the letter of
requisition for submitting the documents issued to the Petitioner's
brother amounts to a rejection of the Petitioner's request to
substitute her name in place of her brother. Hence, the Petitioner
filed the present Petition seeking necessary directions for setting
aside the letter dated 22nd June 2021 as well as for the issuance of
directions to substitute the name of the Petitioner in place of her
brother for the purpose of appointment on compassionate ground.
4. There is an Affidavit-in-Reply filed on behalf of Respondent
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Nos. 2 and 3. In the Affidavit-in-Reply, it is contended that after one
year from the date of death of Petitioner's father, her brother had
approached the Corporation for appointment on compassionate
ground. The brother of the Petitioner had executed an Affidavit of
undertaking, thereby agreeing to take care of his family members
after his compassionate appointment. It is further stated that other
family members of Petitioner's brother, including the Petitioner
herself, had executed a consent letter dated 15 th May 2014, thereby
submitting no objection to appointing her brother on compassionate
ground. By letter dated 20th April 2021, the Employee's Selection
Committee of the Corporation, after following due process of law as
well as the guidelines issued by the Urban Development
Department, prepared a list of 202 candidates based on the
applications submitted by the family members of the deceased
employees of the Corporation seeking appointment on
compassionate ground.
5. It is thus stated that as per the Committee meeting dated 20th
April 2021, the name of the Petitioner's brother is notified at serial
no. 22 of the waitlist. It is contended on behalf of Respondent Nos. 2
and 3 that as per the Government Resolution dated 21 st September
2017, a comprehensive policy decision has been taken for making
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appointments on compassionate ground. It is further stated that as
per Clause 21 of the Government Resolution dated 21st September
2017, there is no provision with respect to the substitution of the
name of the candidate on the waitlist. The said Government
Resolution provides for only one exception for substitution of the
name, in the event of the death of the candidate notified in the
waitlist. It is thus submitted that the request of the Petitioner to
substitute her name in place of her brother is not permissible in view
of the Government Resolution dated 21st September 2017.
6. Learned counsel appearing for the Petitioner submitted that in
similarly situated facts, the Aurangabad Bench of this Court has
taken a decision in the case of The State of Maharashtra and others
Vs Mohd Zakiyoddin Mohd Anisoddin1 . Learned counsel appearing
for the Petitioner submitted that Government Resolution dated 20th
May 2015 was under consideration in the facts of the said case. In
the facts of the said case of Mohd Zakiyoddin, Petition was filed in
this Court to challenge the decision dated 24 th March 2015 passed
by the Maharashtra Administrative Tribunal. Before the Tribunal,
there was a challenge to the communication issued, thereby
refusing to substitute the name of the Applicant before the Tribunal
1 Writ Petition No. 1384 of 2016 dated 27th February 2017
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in place of his sister for the purpose of appointment on
compassionate ground. The Tribunal had set aside the decision by
holding that Applicant before the Tribunal was the son of the
deceased employee, and thus it was possible to give an
appointment on compassionate ground. Thus, the State
Government had challenged the decision of the Tribunal in this
Court.
7. In the said case of Mohd Zakiyoddin, the submission of the
State Government was that for the first time by Government
Resolution dated 20th May 2015, the Government had permitted to
bring on record other dependents of the deceased when in the past
some other dependent was taken on the list for the purpose of
appointment on compassionate ground. It was, thus, the case of the
State Government that the condition for such substitution was only
in the event of the death of the candidate who was notified on the
waitlist.
8. In the said decision in the case of Mohd Zakiyoddin, this
Court has taken a view that the State Government had a policy to
give appointment on compassionate ground to the dependent of the
deceased employee. The policy, thus, cannot be that rigid that it
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makes it impossible to implement the policy. In the said case, the
decision of the Aurangabad Bench of this Court in the case of The
State of Maharashtra and others Vs. Smt. Anjali w/o. Vijay
Naikwade and another2 was relied upon. This Court thus held that
even when there was no Government Resolution to allow to change
the name of the candidate, such substitution is possible if there was
a policy to give appointment on compassionate ground. This Court
had taken the view that there could not have been restrictions which
would come in the way of the implementation of the policy of the
Government. Thus, in the case of Mohd Zakiyoddin, this Court held
that the Tribunal was right in setting aside the decision refusing to
substitute the name of the Applicant before the Tribunal in place of
another family member on the waitlist for appointment on
compassionate ground.
9. Thus, learned counsel appearing for the Petitioner submitted
that the decision of this Court in the case of Mohd Zakiyoddin
squarely applies to the facts of this Case. He submitted that once
there was a policy of the State Government to appoint the member
of the deceased employee on compassionate ground, not allowing
another family member to substitute the name of the original
2 Writ Petition No. 5073 of 2007 dated 17th December 2008
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member would amount to defeating the very purpose of the
Government policy for appointment on compassionate ground.
10. Learned counsel for the Petitioner thus submitted that though
the name of the Petitioner's brother was added to the waitlist for
appointment on compassionate ground, there was never any
appointment order issued in the name of Petitioner's brother. Hence,
the Petitioner's brother had accepted a job, and he had submitted
no objection to the appointment of the Petitioner on compassionate
ground in view of the death of their father. Learned counsel further
submitted that Petitioner's mother was living with the Petitioner, and
she is taking care of the old mother. Learned counsel further
submitted that Petitioner's brother had already submitted a consent
affidavit giving no objection to substituting the name of the Petitioner
in place of her brother for the purpose of appointment on
compassionate ground. Copy of the consent affidavit of Petitioner's
brother is placed on record of the writ petition.
11. Learned counsel, therefore, submitted that the action of
Respondent Nos. 2 and 3 of not substituting the name of the
Petitioner in place of her brother on the waitlist is high-handed and
an arbitrary action and thus necessary directions be issued for
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substituting the name of the Petitioner in the waitlist in place of her
brother.
12. Learned counsel appearing for Respondent Nos. 2 and 3
submitted that since Government Resolution specifically provides
for substitution of the name only in the event of death of the
candidate named in the waitlist, the request of the Petitioner to
substitute her name is not permissible. It was submitted that
Government Resolution dated 21st September 2017 provides
guidelines regarding the appointment on compassionate ground. He
submitted that the said Government Resolution specifically states
that there is no Government policy which permits the change of the
name of the candidate in the waitlist for appointment on
compassionate ground. However, the only exception to this
restriction is in the event of the death of the candidate listed in the
waitlist. It was thus submitted that in such circumstances, the
request of the Petitioner to substitute her name in place of her
brother on the waitlist is not permissible.
13. We have heard the parties. We have gone through the record
of the Writ Petition. A perusal of the Government Resolution dated
21st September 2017 provides for the guidelines for appointment on
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compassionate ground. Clause 21 of the said Resolution specifically
states that there is no Government Policy permitting the change of
name of the candidate in the waitlist for appointment on
compassionate ground. As per Clause 21 of the said Resolution, the
only exception provided for the substitution of the name is in the
event of the death of the candidate on the waitlist.
14. We have gone through the decision of this Court in the case
of Mohd Zakiyoddin. This Court was dealing with a similar
Government Resolution of the year 2015, which also restricted the
substitution of the name of the candidate on the waitlist of
candidates for appointment on compassionate ground. This Court,
in the case of Mohd Zakiyoddin, held that the State Government had
a specific policy to give appointment on compassionate ground to
the dependent of the deceased employee. After going through the
relevant portion of the Government Resolution of the year 2015, this
Court held that the policy of the Government cannot be that rigid
that it makes it impossible to implement the policy. This Court thus
confirmed the decision of the Tribunal, thereby setting aside the
decision refusing to substitute the name of the Applicant in the
waitlist.
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15. In the present case father of the Petitioner expired on 27 th
April 2014. The name of the Petitioner's brother was included in the
waitlist for appointment on compassionate ground as per his
application dated 17th May 2014. It is not disputed that the
application of the Petitioner's brother was not decided, and the
same is pending. It is the case of the Petitioner that since her
brother was not given any appointment, he had already accepted
the job at some other place. Since the Petitioner completed her
education and her mother was dependent on her, she made an
application to substitute her name in place of her brother. It is also
not disputed by Respondent Nos. 2 and 3 that Petitioner's brother
had given consent for such substitution. The Petitioner made an
application to substitute her name on 5 th June 2021. Instead of
deciding her application for substituting her name, Respondent Nos.
2 and 3 issued a letter dated 22nd June 2021 directing Petitioner's
brother to comply with certain requisitions. Though the application
filed by Petitioner's brother was pending since 17th May 2014, it was
only after Petitioner's application for substituting her name was
submitted on 5th June 2021 a letter of requisition was issued on 22 nd
June 2021 calling upon the Petitioner's brother to comply with
certain conditions. Thus the action of Respondent Nos. 2 and 3
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amounts to refusal to substitute the Petitioner's name in place of her
brother for compassionate appointment. Respondent Nos. 2 and 3
have refused to substitute the name of the Petitioner only on the
basis of restrictions imposed by the Government Resolution dated
21st September 2017.
16. In the case of Mohd Zakiyoddin, a similar Government
Resolution of the year 2015, was relied upon. This Court, in the said
case, has taken the view that such restriction amounts to making it
impossible to implement the policy of the Government permitting the
appointment on compassionate ground. The principles laid down by
this Court in the case of Mohd Zakiyoddin, squarely applies to the
facts of the present case. We do not see any valid reason for
refusing to substitute the name of the Petitioner in place of her
brother in the waitlist of Respondent No.2 for appointment on
compassionate ground. Thus, for the reasons stated above, we
pass the following order:
I. Writ Petition is allowed in terms of prayer clauses (a)
and (b) which read thus:
"(a) That this Hon'ble Court may be pleased to issue a
Writ in the nature of mandamus or any other
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appropriate Writ, order or direction of like nature and
quash and set aside the impugned letter dated
22/06/2021 (ExhibitA) issued by the Dy. Commissioner,
Public Service Department, Municipal Corporation
Nashik.
(b) This Hon'ble Court may be kind enough to give
directions to substitute the name of the petitioner in
place of her brother maintaining the position of Sr. No.
22 in the waitlist for appointment on compassionate
ground."
II. Necessary compliance shall be made by Respondent
Nos. 2 and 3 within a period of 4 weeks from today.
III. Writ Petition is disposed of. Rule is made absolute in
the above terms.
IV. All parties to act on authenticated copy of this order.
(GAURI GODSE, J.) (R. D. DHANUKA, J.)
