High Court
Facts
{1} 922-wp-6073-2018 IN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABAD922 WRIT PETITION NO. 6073 OF 2018Muktabai Bhaskar Temkar And AnotherVERSUSAhmednagar Municipal Corporation Through Commissioner…..Mr. Parag Barde, Advocate for the PetitionersMr. V.S. Bedre, Advocate for the respondent....... CORAM : MANJUSHA DESHPANDE, J. DATE : 6th MARCH, 2025ORDER :1.Petitioners are challenging the judgment and orderdated 20.01.2018 passed by learned Member, Industrial Court,Ahmednagar in Complaint (ULP) No. 77/2012, to the extent ofrejection of claim of Petitioner No. 2.2.Petitioner No. 1 is the wife of Bhaskar Temkar andPetitioner No. 2 is the son of Bhaskar Temkar. Father ofPetitioner No. 2 expired during his employment with therespondent.3.It is the contention of petitioner that on 16.07.2012,petitioner No. 1 applied to the respondent for compassionateBhagyawant Punde {2} 922-wp-6073-2018appointment, however, it was not attended by the respondent,therefore, She filed Complaint (ULP) No. 77/2012 with a prayerto appoint her on compassionate ground. On 29.11.2014,Petitioner No. 2 also joined complaint claiming compassionateappointment in place of his father. Industrial Court, Ahmendagarwas pleased to allow the complaint on 16.04.2015 grantingcompassionate appointment to Petitioner No. 2. Order passed byIndustrial Court was challenged by the respondent before thisCourt in Writ Petition No. 11012/2015. Writ petition filed byrespondent was allowed by this Court vide judgment and orderdated 25.11.2016 and the matter was remanded back to theIndustrial Court for fresh decision. While remanding the matterback, this Court has certain conditions, which are reproducedhere under:“(a) The litigating sides shall appear before the IndustrialCourt on 09.12.2016.(b) Both the litigating sides are at liberty to place onrecord the relevant documentary material and lead oralevidence in order to prove the documents on which theyplace reliance.(c) If Respondent No.2 (Virkam) has not filed anapplication for seeking appointment on compassionatebasis with the Petitioner within the limitation period, hisclaim for compassionate appointment shall not beconsidered by the Industrial Court.(d) Needless to state, the Industrial Court shall be obligedto consider the factors listed in the foregoing paragraphsBhagyawant Punde {3} 922-wp-6073-2018of this judgment, while deciding the complaint afresh.(e) Since the issue of compassionate appointment isinvolved, the Industrial Court shall endeavour to decidethe said complaint as expeditiously as possible, with thedue cooperation of the litigating sides.”4.Amongst the aforesaid conditions, in clause (c) it isobserved that, if the respondent No. 2 (Vikram) has not filed anapplication for seeking appointment on compassionate basis withthe Petitioner within the limitation period, his claim forcompassionate appointment shall not be considered by theIndustrial Court.5.The Industrial Court while deciding the complaintafter remand has directed that respondent shall appointcomplainant No. 1 Smt. Muktabai Bhaskar Temkar oncompassionate ground. So far as claim of Petitioner No. 2-Vikram is concerned, Industrial Court has observed that thecomplainant No. 2 though fit to perform the job, attainedmajority on 15.02.2015. The complainant No. 2 applied forappointment by letter dated 5.12.2016, which was not withinone year. The Hon’ble High Court in the order dated 25.11.2016in Writ Petition No. 11012 of 2015 has made it clear that, theclaim of complainant No. 2 shall not be considered by this CourtBhagyawant Punde {4} 922-wp-6073-2018if he has not filed application for appointment on compassionatebasis within the limitation. The limitation prescribed is one year,and application of the complainant No. 2 was filed after theperiod of one year, therefore, the complainant No. 2 cannot beappointed.6.Learned advocate for the petitioner submits that infact complainant No. 2 has filed application in the IndustrialCourt on 28.07.2014, itself and he has joined as complainant inthe complaint along with his mother. Therefore, it cannot be saidthat he has not filed application within limitation. The applicationbefore the Industrial Court to add him as complainant in thecomplaint seeking appointment on compassionate ground has tobe treated as application within prescribed period of limitation. Apart from that learned advocate for the petitionersubmits that though order came to be passed in favour ofPetitioner No. 1 she was not given appointment oncompassionate ground. Since she has attained the age of 45years, her name is required to be removed from the list ofeligible persons claiming compassionate appointment. Therefore,though the order has been passed by the Industrial Court infavour of Petitioner No. 1 is of no consequence. It is his furtherBhagyawant Punde
Legal Reasoning
{5} 922-wp-6073-2018contention that while passing the order by this Court in WritPetition No. 11012/2015, this Court has observed that,application of Petitioner No. 2 should not be considered if it isnot filed within limitation. The subsequent development needs tobe considered in the matter, more particularly the fact thatPetitioner No. 1 on account of attaining age of 45 years could notbe appointed on compassionate ground. The the claim ofPetitioner No. 2 should be considered for compassionateappointment by substituting Petitioner No. 1 in the list. He placesreliance on Full Bench decision of this Court in Kalpana wd/o.Vilas Taram vs. State of Maharashtra, 2024 DGLS(Bom.) 2076,wherein it is declared that substitution of name of anothermember of family in place of member who has applied, onaccount of crossing the age limit of 45 years is not contrary tothe object and purpose for which compassionate appointmentare granted. 7.Therefore, considering the fact that petitioner No. 1has attained the age of 45 years, claim of Petitioner No. 2 isrequired to be considered, in view of decision of Full Bench. Heplaces reliance on observations particularly made in para 22, 23and 24, which reads thus:Bhagyawant Punde {6} 922-wp-6073-2018“22. In the above-referred backdrop, if we see themeaning of the word ‘substitution’, it would mean toreplace with another or one who stands in another’splace or the process by which one person takes the placeof another person’.23.Thus, it is evident that, if a family member of thedeceased/incapacitated employee applies for substitutionof his name with another family member, it cannot betreated as a fresh application or subsequent applicationor it cannot be implied that more than one member isseeking compassionate appointment.24.The scheme permits compassionate appointmentto one eligible legal heir of the deceased/incapacitatedemployee with an object to enable the family to tideover the sudden financial crisis. In the circumstances, ifsubstitution is permitted, it would amount toreplacement of name by another name. As substitutiondoes not amount to making of a fresh application orstaking a claim by more than one legal heir of thedeceased, it cannot be said that substitution would runcounter to the purpose and object of compassionateappointment.”8.Learned advocate Shri. Bedre appearing for therespondent submits that in fact neither in the complaint nor inthe present writ petition, the petitioners have made an avermentthat they want to substitute Petitioner No. 2 in the place ofPetitioner No. 1. For the first time, the petitioner while makinghis submission has prayed that Petitioner No. 2 may besubstituted in the place of Petitioner No. 1 for compassionateappointment. So far as challenge to the order of Industrial CourtBhagyawant Punde {7} 922-wp-6073-2018is concerned, already the Petitioner No. 1 has been directed tobe considered for appointment on compassionate ground.Therefore, there cannot be any challenge to the order passed byIndustrial Court, Ahmednagar.9.I have heard the respective advocates appearing forthe parties and I have also gone through the documents placedon record. There appears substance in the contention of learnedadvocate for the respondent that the petitioners for the first timeare claiming that Petitioner No. 2 should be substituted in theplace of his mother in the list of persons eligible to be appointedon compassionate ground. However, it needs to be appreciatedthat Petitioner No. 2 was also complainant in the complaint filedby petitioners before the Industrial Court, though he was minor.In spite of passing order in favour of Petitioner No. 1, due tochallenge to the order he could not be appointed. Though, bothpetitioners are successful in getting order from the IndustrialCourt, none of them had been appointed. Though there werepositive orders passed in favour of Petitioner No. 1 as well asPetitioner No. 2. 10.The Full Bench has taken a view that substitution ofthe name of another family member in place of a member whoBhagyawant Punde {8} 922-wp-6073-2018has applied, on account of crossing age limit of 45 years ispermissible and it is further directed that such substitutionshould not be treated as fresh application or it cannot be impliedthat more than one member is seeking compassionateappointment. Therefore, I am not inclined to interfere in thefinding recorded by the Industrial Court since Industrial Courthas passed order taking into consideration the evidenceproduced on record and the order which was governing the fieldat the time of passing of order. Therefore, order passed byIndustrial Court does not deserve any interference. Writ Petitionis dismissed.11.However, Petitioner No. 2 may approach therespondent-Municipal Corporation and bring it to the notice ofrespondent that, though the order is passed in favour ofPetitioner No. 1, she could not be appointed due to attaining theage of 45 years therefore the name of petitioner No. 1 can bereplaced by Petitioner No. 2 in view of the Full Bench decisionreferred supra. (MANJUSHA DESHPANDE, J.)Bhagyawant Punde