RAVINDRA v. GHUGE, & Y. G. KHOBRAGADE, JJ.RESERVED ON
Legal Reasoning
J-WP 3287.24 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABADWRIT PETITION NO. 3287 OF 2024WITH CIVIL APPLICATION NO. 7339 OF 20241.The State of Maharashtra, Through its Secretary,Home Department, Mantralaya,Mumbai 32...Petitioners2.The Special Inspector General of Police,Nanded Range, Nanded3.The Superintendent of Police,Latur, Dist. LaturVERSUSRamhari s/o Govind SontakkeAge 38 years, Occu: Labour,R/o Khadgaon Road, Latur,Tq. & Dist. Latur ... RespondentMr. M. M. Nerlikar, Addl. GP for the PetitionersMr. Kiran Salunke h/for Mr. M. P. Kale, Advocate for the RespondentCORAM: RAVINDRA V. GHUGE, & Y. G. KHOBRAGADE, JJ.RESERVED ON : 09.08.2024PRONOUNCED ON: 21.08.2024JUDGMENT (Per: Y. G. Khobragade, J.) 1.Rule. Rule made returnable forthwith. With the consent ofboth the sides, heard finally at the stage of admission.Page 1 of 8 J-WP 3287.242. By the present Petition under Article 226 of the Constitutionof India, the Petitioners - Employers have put forth prayer clause-B asunder:“B) Quashed and set aside the impugned judgment and order dated15.11.2022 passed by learned Member of Maharashtra AdministrativeTribunal, Mumbai Bench at Aurangabad, in Original ApplicationNo.580 / 2022 and accordingly the Original Application No.580 /2022 filed by the respondent may kindly be dismissed.3. Petitioner Nos. 1 to 3 are original Non-applicant Nos. 1 to 3and the Respondent is the Original Applicant in O. A. No. 580 of 2022.The facts giving rise to this Petition are that the Respondent institutedO. A. No. 580 of 2022 before the learned Maharashtra AdministrativeTribunal, Bench At Aurangabad and alleged that his father was initiallyappointed as a Police Constable with Petitioner No.3- Superintendent ofPolice, Latur and subsequently he was promoted to the post of PoliceNaik. On 11.04.2017, his father died while in service. At the time ofdeath, his father was temporarily promoted to the post of PSI. Afterdeath of his father, he submitted an application dated 31.08.2017 withPetitioner No.3 and prayed for grant of appointment on compassionateground. However, on 24.11.2017, Petitioner No.3 issued acommunication informing the Respondent about dis-entitlement forPage 2 of 8 J-WP 3287.24appointment on compassionate basis as per circular dated 09.09.2011because his father was Group ‘B’ employee. The Respondent hadassailed said order before the learned Tribunal in Original ApplicationNo. 672 of 2018, however, said Original Application was dismissed bythe Tribunal vide order dated 25.09.2019. Being aggrieved by saidorder, the Respondent had filed Writ Petition No. 13166 of 2019 beforethis Court. On 25.10.2021, the Co-ordinate Bench of this Court allowedsaid Writ Petition with observation that the Petitioners should considerthe Respondent’s application for appointment on compassionate groundon its own merit and shall not reject on the ground on which it wasearlier rejected. However, on 22.03.2022, Petitioner No.3 again turneddown Respondent’s request because of the Respondent’s father(deceased employee) having more than 2 children and the third childwas born after the cut-off date 31st December, 2001 as per G.R. dated28.03.2021.4.Therefore, Respondent again filed O. A. No. 580 of 2022before the learned Tribunal. After hearing both the sides, on15.11.2022, the learned Tribunal accepted the plea of the Applicant andpassed the impugned order holding that as per view taken by DivisionBench of this Court the case of Ms. Kashabai Seshrao Wagh Vs. TheZilla Parishad, Nashik & others decided on 03.07.2019, the condition asPage 3 of 8
Legal Reasoning
J-WP 3287.24about 3rd child on the basis of which the request of the Respondent hasbeen rejected by the Petitioners, has been held unconstitutional andconsequently present Petitioner No. 3 is directed to consider and givecompassionate appointment to the Respondent/original Applicant inaccordance with law. Being dissatisfied with the said order, the OriginalNon-applicants/Petitioners have filed present Petition.5. Mr. Nerlikar, the learned Addl. GP canvassed in vehemencethat the State Government issued a G.R. dated 28.03.2001 for providingappointment on compassionate basis to small family consisting wife andtwo children. The Respondent’s father expired on 11.04.2017 whileworking as a Police Sub Inspector with Petitioner No.3. Earlier, on06.07.2017, the Respondent’s application was rejected in tune withcircular dated 09.09.2011 issued by the Government. However, as perorder dated 25.10.2021, passed by Division Bench of this Court in WritPetition No. 13166 of 2019, the claim of the Respondent No.3 was againexamined and rejected on 22.03.2022 in tune with G.R. dated28.03.2001 on the ground that the Respondent’s father was havingthree children after the cut-off date 31.12.2001. To buttress thesesubmissionsthe learned AGP relied on case of Sunita Dinesh GaikwadPage 4 of 8 J-WP 3287.24and another Vs. The State of Maharashtra and another, 2023 (5) Mh.L.J.40. 6. Per contra, the learned counsel appearing for theRespondent/original applicant canvassed that the father of theRespondent died on 11.04.2017 while in service, therefore, theRespondent is entitled for appointment on compassionate grounds asper GR dated 21.09.2017 issued in reference to GR dated 26.10.1994and as per view taken by this Court in Ms. Kashabai Seshrao Waghdecided on 03.07.2019 (Supra). Therefore, the impugnedJudgment/order passed by the learned Tribunal is not faulted, hence,prayed for dismissal of the Petition.7.It is not in dispute that, late Shri Govind Sontakke, theRespondent’s father, died on 11.04.2017, while in service. After death ofhis father, the Respondent submitted an application on 31.08.2017 andprayed for grant of appointment on compassionate grounds. As per GR28.03.2001, the State Government framed a scheme for small family ofthe employee and if the deceased employee is having more than twochildren, born after the cut-off date, the survivor would be dis-entitledfor appointment on compassionate grounds. On 1st July, 2005, the StateGovernment issued a circular and provided specific format forsubmission of small family declaration. Page 5 of 8 J-WP 3287.248.It is apparent on face of record that on 22.03.2022, PetitionerNo.3 passed an order holding that the deceased employee Shri GovindSontakke had a first wife Smt.Vimal (Nirmala) who died on 28.01.1997and subsequently, the deceased employee performed second marriagewith Smt. Sunita on 30.05.2002. Present Respondent Ramhari GovindSontakke was born from first wife of deceased employee Govind on01.05.1984. The other two children (i) Gangadhar Govind Sontakkeand (ii) Ms. Aarti Govind Sontakke are born on 09.03.2003 and30.06.2006 respectively out of second marriage of the deceasedemployee. On 12.07.2017, Smt. Sunita wd/o Govind Sontakkesubmitted an application in Form No. 12 under Rule 136 (3) (a), (b)and 144 (2) (b) (i) (c) (iii) and (d) (i) of the Maharashtra Civil Services(Pension) Rules, 1982 and provided information regarding birth datesof above named children of the deceased employee. Therefore, as perClause-E of GR dated 28.03.2001, the Respondent is dis-entitled forappointment on compassionate grounds because the third child is bornto the deceased employee after the cut-off date 31st December, 2001.9. Needless to say that on 15.11.2022, the learned Tribunalpassed the impugned judgment/order holding that the Respondent isthe only son of the first wife of deceased employee, therefore, the ratiolaid down in the case of Ms. Kashabai Sheshrao Wagh (supra) wouldsquarely be applicable to the case of the Respondent. However, in casePage 6 of 8 J-WP 3287.24of Sunita Dinesh Gaikwad -Vs- State of Maharashtra, 2023 (5) Mh. L.J.40, the Full Bench of this Court concluded that the view taken inKashabai Sheshrao Wagh (supra) cannot be endorsed as a correct viewand the view taken in Bhagyashre Pradeep Chopde (supra) is thecorrect view. The Full Bench of this Court further held that the GRdated 28.03.2001 prohibits appointment on compassionate ground, ifthe deceased employee is having more than 2 children and third child isborn after 31.12.2001.10.The impugned judgment and order passed by the learnedTribunal has taken into consideration the view of Kashabai SheshraoWagh (supra), which is not endorsed by the Full Bench in case of SunitaDinesh Gaikwad (supra). As such the deceased employee GovindSontakke, father of the Respondent having three children and thirdchild born on 30.06.2006 i.e. after the cut of date 31.12.2001. TheRespondent has not countered the fact of two wives of his father andhaving blessed with three children. Therefore, taking into considerationthe law laid down in case of Sunita Dinesh Gaikwad (supra), theRespondent is dis-entitled for the appointment on compassionate basis.Therefore, the impugned order 15.11.2022 passed by the learnedTribunal in Original Application No. 580 of 2022 is not sustainable inthe eyes of law, hence, it needs to be quashed and set aside.Page 7 of 8
Decision
J-WP 3287.2411. In view of the above discussion the Writ Petition is allowed.Rule is made absolute in terms of prayer Clause “B” quoted above inPara 2. The impugned judgment and order dated 15.12.2002 passedby the learned Tribunal in Original Application No. 580 of 2022 ishereby quashed and set aside. 12. The Civil Application No. 7339 of 2024 also stands disposedoff.( Y. G. KHOBRAGADE, J. ) ( RAVINDRA V. GHUGE, J. )JPChavan Page 8 of 8