High Court
Legal Reasoning
1 WP / 1321 / 2019IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABADWRIT PETITION NO. 1321 OF 2019Umesh S/o Udhavrao Tawar,Age 22 years, Occu. UnemployedR/o Bhavaninagar, Paithan,Tq. Paithan, Dist. Aurangabad.. Petitioner Versus1] The Chief Executive Officer, Zilla Parishad, Aurangabad2] The Block Education Officer, Panchayat Samiti, Paithan, Tq. Paithan, Dist. Aurangabad3] The State of Maharashtra, Through Secretary, General Administration Department, Mantralaya, Mumbai – 32 .. Respondents...Advocate for the petitioner : Mr. D.R. Irale PatilAdvocate for respondent no. 1 : Mr. Rahul A. TambeAGP for the respondents no. 3 : Mr. R.K. Ingole... CORAM : MANGESH S. PATIL & PRAFULLA S. KHUBALKAR, JJ.DATE : 24 JANUARY 2025JUDGMENT (MANGESH S. PATIL, J.) :Heard. Rule. It is made returnable forthwith. Mr. Tambewaives service for respondent no. 1 and Mr. Ingole, learned AGPwaives service for respondent no. 3. 2. The petitioner is seeking appointment with respondentno. 1 on compassionate ground on account of demise of his father on 2 WP / 1321 / 201931-08-2004 while being in the employment of respondent no. 1 - ZillaParishad as a primary school teacher in Zilla Parishad primary school,Paithan. His date of birth is 15-09-1995. After attaining majority, hesubmitted an application under the extant scheme seeking appointmenton compassionate ground on 10-02-2014. It was forwarded by theheadmaster to respondent no. 2 - Block Education Officer on the veryday. In spite of being eligible, the proposal was rejected by respondentno. 1, on the ground that it was not submitted within the stipulatedperiod of one year, as is expected under the scheme pronounced bygovernment resolution dated 11-12-1996. It was ignored that theapplication was filed within a year of his reaching the age of majority. Hence, this petition challenges the impugned communication / orderdated 14-09-2016, refusing appointment on compassionate ground andseeking a direction to include the name in the wait list in accordancewith the original proposal. 3. By way of amendment dated 12-12-2019, the petitionerfurther averred that the government resolution dated 22-08-2005 to theextent of paragraph no. 2(3), is unconstitutional on the ground that it isarbitrary and contrary to the aims and objects of the scheme ofappointment on compassionate ground by rest of the heirs which arestill minors. 3 WP / 1321 / 20194. Petition is contested by respondent no. 1 by filing affidavitin reply. It is inter alia averred that petitioner’s elder brother - Sachinreached majority on 22-07-2010, having been born on 22-07-1992. Asper government resolution dated 22-08-2005, the period of filingapplication for compassionate appointment was reduced from 5 yearsto 1 year and Sachin having not applied within one year of reachingmajority, and the petitioner’s application being late by 3 years 11months and 26 days, of Sachin reaching the majority, was not withinthe time available under the scheme to seek appointment oncompassionate ground. It is also contended that as per thegovernment resolution dated 11-09-1996, it was specifically laid downthat the application should be filed within a year of one of the heirs ofthe deceased employee reaching majority. The petitioner and hisfamily could have intimated the office of respondent no. 1 within oneyear of Sachin reaching majority that it was the petitioner who wasinterested 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 aliareference is made to the government resolution dated 21-09-2017making it permissible for a minor of the deceased to make anapplication within one year of his attaining the age of 18 years. Thepetitioner's mother had pre-deceased his father in the year 2003. He
Legal Reasoning
4 WP / 1321 / 2019was barely 9 yeas of age and his brother Sachin was 13 years of ageon the date of death of the father on 31-08-2004. Sachin had filedaffidavit on 06-02-2014, giving up his claim and had proposed thepetitioner to be appointed. It was intimated to respondent no. 1 and,thereafter, no immediate decision was taken and abruptly, the orderwas 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 withtheir stand in the respective pleadings.8. There is no dispute about the fact that the petitioner’sfather was in the employment of the Zilla Parishad as a primary teacherand died in harness on 31-08-2004. The averment in the rejoinderabout his mother having predeceased the father in the year 2003, hasnot been disputed. There is also no dispute about the fact that the dateof birth of the petitioner’s brother - Sachin is 22-07-1992 and that of thepetitioner is 15-09-1995. There is also no dispute about the fact thatthe petitioner had submitted application seeking appointment oncompassionate ground on 10-02-2014, apparently within one year ofreaching the age of majority. 9. The impugned order, the stand in the affidavit in reply andthe submissions of Mr. Tambe revolve around the fact that it is an 5 WP / 1321 / 2019appointment on compassionate ground and the scheme is floated toprovide immediate succor to the family of the deceased in distress. Thethrust of the argument of Mr. Tambe is on the point that petitioner’sfather having died way back in the year 2004 and the petition havingbeen filed in the year 2019, after a lapse of almost 14-½ years, bypassage of time would obliterate the exigencies to be met for which thescheme is floated and has received recognition. Even it is hissubmission that for whatever reason, if such an enormous time is lostfrom the date of death, allowing such appointment on compassionateground, would be like treating such a claim as an inherent andindefeasible right. This would be inconsistent with the policy. 10. He would further submit that even the right of the petitionerwill 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 subsequentgovernment resolution dated 21-09-2017, is misplaced. 11. At the first blush, the submission of the learned advocateMr. Tambe seems convincing. However, simultaneously, it overlooksthe plight of a minor who, for his inability, is unable to make theapplication seeking compassionate appointment. It is in order to meetsuch a contingency, the government resolution dated 11-09-1996provided for supplementing the government resolution dated 6 WP / 1321 / 201926-10-1994 adding therein a stipulation that in respect of the deceasedemployee, the application should be filed within a year of reaching theage of 18 years by one of the several minor heirs. 12. Though it is contemplated that it would be only ‘first minorchild or heir reaching the age of majority’ as the cut-off date for makingan application, in our considered view, this government resolutionsdated 22-08-2005 even without there being any challenge, in thepeculiar circumstances need to be read down to mean ‘any minor childmaking an application within a year of attaining the majority’. As it hashappened in the present matter, the petitioner’s elder brother - Sachin,according to this government resolution dated 22-08-2005, wassupposed to make application seeking compassionate appointment,within one year of reaching majority. However, it seems that he wasnot interested and did not make any application. It would be arbitraryand capricious to expect the petitioner who was still a minor to havemade an application seeking appointment on compassionate groundfor himself within one year of Sachin reaching majority. This could nothave been in the contemplation of the state while adding the proviso toclause 5 of the government resolution dated 26-10-1994. 13.It is in this light of the factual scenario that it would beapposite to mention that even in the subsequent governmentresolution dated 22-08-2005, it was provided that the period which was 7 WP / 1321 / 2019till then 5 years, was reduced to one year for an eligible member in thefamily of the deceased employee. The government resolution dated22-08-2005 was issued after the demise of petitioner’s father, whenadmittedly, the petitioner and even his elder brother - Sachin wereminors on the date this government resolution had seen the light of theday. It would be too harsh to apply this clause reducing the time limit of5 years to 1 year and would be arbitrary and discriminatory if it is to beapplied to even them when there was no immediate adult blood relativein the family. 14.Similarly, even if the subsequent policy under thegovernment resolution dated 21-09-2017 is assumed to be notapplicable to the petitioner’s claim, being a policy of the subsequentperiod, it was issued superseding all the earlier policies including theinitial government resolutions dated 26-10-1994 and 11-09-1996 andincluding the government resolution dated 22-08-2005. It lays downthat a person seeking appointment on compassionate ground can filean application if he is a minor heir, within one year of attaining themajority, extendable up to 3 years at the discretion of the concerneddepartment of the state government. The change in the policy isindicative of the relaxation by the state having realized the arbitrarinessand hardship resulting in earlier policies restricting this time to one yearfrom the first of the minor heirs attaining the majority, ignoring his 8 WP / 1321 / 2019unwillingness and inability of other minors to make such anapplication. 15.It is in the light of such changed policy, we are of the firmview that the stipulation in the extant policy as was applicable to thepetitioner mandating him to make an application within 1 year of hiselder brother - Sachin attaining the majority and further reducing theinitial period of 5 years to 1 year by government resolution dated22-08-2005, is clearly arbitrary and would not be applicable to thepetitioner. It is liable to be read down to mean 1 year after reaching themajority when the application for appointment is filed by a minordependent of the deceased, irrespective of any other dependent heirreaching the age of majority. It is only in this manner, in our consideredview, 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 setaside. 18. Respondent no.1 is directed to consider the petitioner’sapplication dated 10-02-2014 on its own merits and in accordance withlaw and the observations made herein-above, as expeditiously aspossible and in any case within 8 weeks under intimation to him. 9 WP / 1321 / 201919. Rule is made absolute in the above terms. [ PRAFULLA S. KHUBALKAR ] [ MANGESH S. PATIL ] JUDGE JUDGEarp/