RAVINDRA v. GHUGE &Y.G. KHOBRAGADE, JJ.DATE
Legal Reasoning
( 1 ) 905 wp 7723.24IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 7723 OF 2024Pravin s/o Madhukar IngleAge: 29 years, Occu: NilR/o: Nagad, Tq. Kannad,District Aurangabad. ...PETITIONERV/s.1. The State of MaharashtraThrough its Secretary, Forest Department, Mantralaya Mumbai - 322. The Divisional Manager,Forest Development CorporationMaharashtra, Kamathi Road, Nagpur....RESPONDENTS...Mr. Kalyan Patil h/f. S.R. Barlinge, Advocate for the PetitionerMr. A.B. Girase, GP for the Respondent-State…CORAM : RAVINDRA V. GHUGE &Y.G. KHOBRAGADE, JJ.DATE :31st July, 2024ORAL JUDGMENT (Per: Ravindra V. Ghuge, J.):-1.Rule. Rule made returnable forthwith and heard finally with theconsent of the parties.2.The Petitioner is a 29 year old son of a deceased employee, whohas put-forth prayer clause-A as under:
Decision
( 2 ) 905 wp 7723.24“A. By a writ of mandamus, or any other appropriate writ, or order ordirections in the like nature respondent No. 2 be directed to consider theclaim of petitioner for appointment on compassionate ground.”3.The Petitioner has placed a strong reliance on the judgmentdelivered by this Court at the Nagpur Bench in Dnyaneshwar Umaji Bele V/s.Chief General Manager (HR) MSEDCL, Mumbai and Ors.; 2024 (2) Mh.L.J.556, to support his contention that in Dnyaneshwar Umaji Bele (supra), thisCourt has granted compassionate appointment after 13 years of the expiry ofthe bread earner.4.In view of the above, we need to record the facts of this case, asthe Petitioner has placed reliance on Dnyaneshwar Umaji Bele (supra), asfollows:a)The Petitioner’s father Madhukar Bhikalal Ingle, was working as a ForestGuard and he died in an accident, on 16.07.1994.b)The Petitioner was born on 11.08.1994.c)The Petitioner’s mother (the widow of the deceased), was 23 years of agewhen her husband passed away.d)The Petitioner has an elder sister, who was two and half years of age,when the father passed away and the Petitioner was three months old.e)The widow applied for compassionate appointment. ( 3 ) 905 wp 7723.24f)By communication dated 28.08.2014, the widow was called upon tosubmit her photograph and other documents for verification. By that time, shehad turned 43 years of age.g)On 14.09.2014, the widow was issued with an appointment orderthereby posting her as a Chowkidar in the office of the Divisional Manager,Forest Project Department, Bhandara. The appointment order was served uponthe widow. The widow refused to accept the appointment order and did notjoin duties.h)By communication dated 09.01.2015, she was informed that if she didnot join duty, it would be presumed that she is not interested and her claim forcompassionate appointment would be extinguished.i)5 months after the issuance of the appointment order, a report of aRadiologist dated 11.02.2015, indicated that the widow had a large welldefined soft tissue mass in the left breast. On further investigations, a medicalreport dated 27.03.2015, was issued by an Oncologist working with the SethNandlal Dhoot Hospital, Dr. Viraj Borgaonkar, who is associated with the TataMemorial Hospital, Mumbai. She was diagnosed with Breast Cancer.j)The widow further refused to accept the appointment order which wasissued to her, more than six months prior to her medical examination and themedical report.5.In Dnyaneshwar Umaji Bele (supra), the facts are as under: a)The father of the Petitioner namely Umaji, expired on 13.09.1987. ( 4 ) 905 wp 7723.24b)The Petitioner Dnyaneshwar, attained majority on 20.01.2001.c)He approached the prospective employer with a letter dated 13.10.2010,seeking compassionate appointment.d)The Petitioner Dnyaneshwar was offered temporary work intermittentlyand he began working with the prospective employer.e)This Court concluded in the judgment in Dnyaneshwar Umaji Bele(supra), that after the Petitioner Dnyaneshwar made an application on13.10.2010, he was given intermittent employment by the Respondent and hewas intermittently working. The Respondents made him understand that hisclaim is being considered favorably.It is in the above facts and circumstances that this Court directedissuance of an appointment order to Dnyaneshwar.6.Per contra, in the instant case, the widow applied within the timelimit for seeking compassionate appointment. Her application was favorablyconsidered and she was issued with the appointment order, dated 04.09.2014.She did not accept the appointment order. By communication dated09.01.2015, she was informed that if she did not join duty, it would bepresumed that she is not interested and her claim for compassionateappointment would be extinguished. The Petitioner has placed on record thereport of the Department of Radiology issued by the Seth Nandlal Dhoot ( 5 ) 905 wp 7723.24Hospital by which further investigations were ordered. This Petition has beenfiled on 09.05.2024, which is after 30 years of the demise of the bread earner.The Petitioner’s elder sister has got married. The Petitioner’s mother ispresently residing with him. 7.In these circumstances, it cannot be said that the claim of thewidow was kept pending. It was never rejected on the spacious plea that shehas become age barred. In fact, her application was favourably considered andshe was issued with an appointment order, which she voluntarily refused toaccept and refused to join duties. Five months thereafter, she was diagnosedwith Breast Cancer. It is in these peculiar circumstances that we cannot holdthat the prospective employer is guilty of deliberately delaying the claim of thewidow or dislodging her claim on the ground that she has become age barred.This is a case wherein the widow herself refused to accept the appointmentorder, in anticipation that her son could be accommodated. The Petitionerherein, had already become an adult on 11.08.2012. The widow is cured ofthe ailment and is presently residing with the Petitioner, is the statement made.8.In such circumstances, considering the law laid down in State ofHimachal Pradesh and Anr. V/s. Shashi Kumar; (2019) 3 SCC 653, that we donot deem it appropriate to issue a Writ of Mandamus to the Forest ( 6 ) 905 wp 7723.24Development Corporation to issue an appointment order to the Petitioner in thepeculiar facts of the case. 9.In The State of West Bengal vs Debabrata Tiwari & Ors.; AIR 2023SUPREME COURT 1467, the Hon’ble Supreme Court concluded thatcompassionate appointment is not a vested right and the same is relative to thefinancial condition and the hardship faced by the dependents, consequent tothe death of the bread earner. A stale claim for compassionate appointmentwould frustrate the very object of the scheme for compassionate appointment.It is, however, directed that the Government officials would act with a sense ofutmost proactiveness and immediacy while deciding the claims ofcompassionate appointment so as to ensure that the wholesome object of sucha scheme is fulfilled. The law laid down in State of Himachal Pradesh and Anr.V/s. Shashi Kumar (supra), was also discussed in Debabrata Tiwari (supra).10.The learned GP relies on Swati Ankush Borde & Anr. V/s. State ofMaharashtra & Ors.; 2022 (4) Mh.L.J. 379. This Court refused substitution forthe reason that after the death of the husband/bread earner, the widow appliedfor compassionate appointment. She was found eligible and was granted anappointment. She accepted the appointment order and joined service. Afterthis Court delivered an order in Dnyaneshwar S/o. Ramkishan Musane V/s.State of Maharashtra & Ors.; 2020(5) Mh.L.J. 381, quashing Clause 1 (c), ( 7 ) 905 wp 7723.24which prohibited substitution under the G.R. dated 20.05.2015, the Petitionerhad approached this Court and requested to accept her resignation and thenappoint her son in her place. It is in these circumstances, that this Courtdeclined substitution.11.In view of the above, we are unable to issue a Writ of Mandamusin the peculiar facts of this case, and that too after 30 years and when thewidow was issued with an appointment order. This Petition is, therefore,disposed off. Rule is discharged. [Y.G. KHOBRAGADE, J.][RAVINDRA V. GHUGE, J.]mub