Bombay High Court
Umesh Udhavrao Tawar vs The Chief Executive Officer Zilla ... on 24 January, 2025
Author: Mangesh S. Patil
Bench: Mangesh S. Patil
2025:BHC-AUG:2371-DB
1 WP / 1321 / 2019
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 1321 OF 2019
Umesh S/o Udhavrao Tawar,
Age 22 years, Occu. Unemployed
R/o Bhavaninagar, Paithan,
Tq. Paithan, Dist. Aurangabad .. Petitioner
Versus
1] The Chief Executive Officer,
Zilla Parishad, Aurangabad
2] The Block Education Officer,
Panchayat Samiti, Paithan,
Tq. Paithan, Dist. Aurangabad
3] The State of Maharashtra,
Through Secretary,
General Administration Department,
Mantralaya, Mumbai - 32 .. Respondents
...
Advocate for the petitioner : Mr. D.R. Irale Patil
Advocate for respondent no. 1 : Mr. Rahul A. Tambe
AGP for the respondents no. 3 : Mr. R.K. Ingole
...
CORAM : MANGESH S. PATIL &
PRAFULLA S. KHUBALKAR, JJ.
DATE : 24 JANUARY 2025
JUDGMENT (MANGESH S. PATIL, J.) :
Heard. Rule. It is made returnable forthwith. Mr. Tambe
waives service for respondent no. 1 and Mr. Ingole, learned AGP
waives service for respondent no. 3.
2. The petitioner is seeking appointment with respondent
no. 1 on compassionate ground on account of demise of his father on
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31-08-2004 while being in the employment of respondent no. 1 - Zilla
Parishad as a primary school teacher in Zilla Parishad primary school,
Paithan. His date of birth is 15-09-1995. After attaining majority, he
submitted an application under the extant scheme seeking appointment
on compassionate ground on 10-02-2014. It was forwarded by the
headmaster to respondent no. 2 - Block Education Officer on the very
day. In spite of being eligible, the proposal was rejected by respondent
no. 1, on the ground that it was not submitted within the stipulated
period of one year, as is expected under the scheme pronounced by
government resolution dated 11-12-1996. It was ignored that the
application was filed within a year of his reaching the age of majority.
Hence, this petition challenges the impugned communication / order
dated 14-09-2016, refusing appointment on compassionate ground and
seeking a direction to include the name in the wait list in accordance
with the original proposal.
3. By way of amendment dated 12-12-2019, the petitioner
further averred that the government resolution dated 22-08-2005 to the
extent of paragraph no. 2(3), is unconstitutional on the ground that it is
arbitrary and contrary to the aims and objects of the scheme of
appointment on compassionate ground by rest of the heirs which are
still minors.
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4. Petition is contested by respondent no. 1 by filing affidavit
in reply. It is inter alia averred that petitioner's elder brother - Sachin
reached majority on 22-07-2010, having been born on 22-07-1992. As
per government resolution dated 22-08-2005, the period of filing
application for compassionate appointment was reduced from 5 years
to 1 year and Sachin having not applied within one year of reaching
majority, and the petitioner's application being late by 3 years 11
months and 26 days, of Sachin reaching the majority, was not within
the time available under the scheme to seek appointment on
compassionate ground. It is also contended that as per the
government resolution dated 11-09-1996, it was specifically laid down
that the application should be filed within a year of one of the heirs of
the deceased employee reaching majority. The petitioner and his
family could have intimated the office of respondent no. 1 within one
year of Sachin reaching majority that it was the petitioner who was
interested in applying on the ground of compassionate appointment.
There was no illegality in rejecting the petitioner's application.
5. The petitioner has also filed a rejoinder and inter alia
reference is made to the government resolution dated 21-09-2017
making it permissible for a minor of the deceased to make an
application within one year of his attaining the age of 18 years. The
petitioner's mother had pre-deceased his father in the year 2003. He
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was barely 9 yeas of age and his brother Sachin was 13 years of age
on the date of death of the father on 31-08-2004. Sachin had filed
affidavit on 06-02-2014, giving up his claim and had proposed the
petitioner to be appointed. It was intimated to respondent no. 1 and,
thereafter, no immediate decision was taken and abruptly, the order
was passed refusing the appointment to the petitioner.
6. We have heard both the sides and perused the record.
7. Learned advocates made submissions in consonance with
their stand in the respective pleadings.
8. There is no dispute about the fact that the petitioner's
father was in the employment of the Zilla Parishad as a primary teacher
and died in harness on 31-08-2004. The averment in the rejoinder
about his mother having predeceased the father in the year 2003, has
not been disputed. There is also no dispute about the fact that the date
of birth of the petitioner's brother - Sachin is 22-07-1992 and that of the
petitioner is 15-09-1995. There is also no dispute about the fact that
the petitioner had submitted application seeking appointment on
compassionate ground on 10-02-2014, apparently within one year of
reaching the age of majority.
9. The impugned order, the stand in the affidavit in reply and
the submissions of Mr. Tambe revolve around the fact that it is an
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appointment on compassionate ground and the scheme is floated to
provide immediate succor to the family of the deceased in distress. The
thrust of the argument of Mr. Tambe is on the point that petitioner's
father having died way back in the year 2004 and the petition having
been filed in the year 2019, after a lapse of almost 14-½ years, by
passage of time would obliterate the exigencies to be met for which the
scheme is floated and has received recognition. Even it is his
submission that for whatever reason, if such an enormous time is lost
from the date of death, allowing such appointment on compassionate
ground, would be like treating such a claim as an inherent and
indefeasible right. This would be inconsistent with the policy.
10. He would further submit that even the right of the petitioner
will have to be decided in accordance with the policy and the scheme,
as was obtaining on the date of death of his father. He would,
therefore, submit that reliance of the petitioner in the subsequent
government resolution dated 21-09-2017, is misplaced.
11. At the first blush, the submission of the learned advocate
Mr. Tambe seems convincing. However, simultaneously, it overlooks
the plight of a minor who, for his inability, is unable to make the
application seeking compassionate appointment. It is in order to meet
such a contingency, the government resolution dated 11-09-1996
provided for supplementing the government resolution dated
6 WP / 1321 / 2019
26-10-1994 adding therein a stipulation that in respect of the deceased
employee, the application should be filed within a year of reaching the
age of 18 years by one of the several minor heirs.
12. Though it is contemplated that it would be only 'first minor
child or heir reaching the age of majority' as the cut-off date for making
an application, in our considered view, this government resolutions
dated 22-08-2005 even without there being any challenge, in the
peculiar circumstances need to be read down to mean 'any minor child
making an application within a year of attaining the majority'. As it has
happened in the present matter, the petitioner's elder brother - Sachin,
according to this government resolution dated 22-08-2005, was
supposed to make application seeking compassionate appointment,
within one year of reaching majority. However, it seems that he was
not interested and did not make any application. It would be arbitrary
and capricious to expect the petitioner who was still a minor to have
made an application seeking appointment on compassionate ground
for himself within one year of Sachin reaching majority. This could not
have been in the contemplation of the state while adding the proviso to
clause 5 of the government resolution dated 26-10-1994.
13. It is in this light of the factual scenario that it would be
apposite to mention that even in the subsequent government
resolution dated 22-08-2005, it was provided that the period which was
7 WP / 1321 / 2019
till then 5 years, was reduced to one year for an eligible member in the
family of the deceased employee. The government resolution dated
22-08-2005 was issued after the demise of petitioner's father, when
admittedly, the petitioner and even his elder brother - Sachin were
minors on the date this government resolution had seen the light of the
day. It would be too harsh to apply this clause reducing the time limit of
5 years to 1 year and would be arbitrary and discriminatory if it is to be
applied to even them when there was no immediate adult blood relative
in the family.
14. Similarly, even if the subsequent policy under the
government resolution dated 21-09-2017 is assumed to be not
applicable to the petitioner's claim, being a policy of the subsequent
period, it was issued superseding all the earlier policies including the
initial government resolutions dated 26-10-1994 and 11-09-1996 and
including the government resolution dated 22-08-2005. It lays down
that a person seeking appointment on compassionate ground can file
an application if he is a minor heir, within one year of attaining the
majority, extendable up to 3 years at the discretion of the concerned
department of the state government. The change in the policy is
indicative of the relaxation by the state having realized the arbitrariness
and hardship resulting in earlier policies restricting this time to one year
from the first of the minor heirs attaining the majority, ignoring his
8 WP / 1321 / 2019
unwillingness and inability of other minors to make such an
application.
15. It is in the light of such changed policy, we are of the firm
view that the stipulation in the extant policy as was applicable to the
petitioner mandating him to make an application within 1 year of his
elder brother - Sachin attaining the majority and further reducing the
initial period of 5 years to 1 year by government resolution dated
22-08-2005, is clearly arbitrary and would not be applicable to the
petitioner. It is liable to be read down to mean 1 year after reaching the
majority when the application for appointment is filed by a minor
dependent of the deceased, irrespective of any other dependent heir
reaching the age of majority. It is only in this manner, in our considered
view, the peculiar situation in the matter in hand can be legally met.
16. The writ petition is allowed.
17. The impugned order dated 14-09-2016 is quashed and set
aside.
18. Respondent no.1 is directed to consider the petitioner's
application dated 10-02-2014 on its own merits and in accordance with
law and the observations made herein-above, as expeditiously as
possible and in any case within 8 weeks under intimation to him.
9 WP / 1321 / 2019
19. Rule is made absolute in the above terms.
[ PRAFULLA S. KHUBALKAR ] [ MANGESH S. PATIL ]
JUDGE JUDGE
arp/
