IN RAST/22946/2022The State Of Maharashtra Through Its Additional Chief Secretariat (services) And AnotherVERSUSDnyaneshwar Ramkishan v. Gole h/f
Case Details
937-CA-13097-2022.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCIVIL APPLICATION NO. 13097 OF 2022 IN RAST/22946/2022The State Of Maharashtra Through Its Additional Chief Secretariat (services) And AnotherVERSUSDnyaneshwar Ramkishan Musane And Others...Mr. P. K. Lakhotiya, AGP for ApplicantsMr. P. V. Gole h/f Mr. V. D. Gunale, Advocate forRespondents...CORAM:RAVINDRA V. GHUGE &R. M. JOSHI, JJDATE:MARCH 08, 2024PER COURT : ORDER BELOW CIVIL APPLICATIONHeard the learned Advocates for the respectivesides. Since the delay of 156 days is very short andexplained, the same is condoned and the CivilApplication is allowed.ORDER BELOW REVIEW APPLICATION1.Issue notice to the Respondents. The learnedAdvocate Mr. P. V. Gole h/f Mr. V. D. Gunale waivesservice of notice on behalf of Respondent No. 1. Heardforthwith by the consent of the parties.Page 1 of 10
Legal Reasoning
937-CA-13097-2022.odtby this Court dated 21.12.2023 in Writ Petition No.12897/2023 (Latikabai Uttam Mahajan vs. The State ofMaharashtra and Others), wherein this Court hasrecorded that “Scheme for Compassionate Appointmentunder Central Government” dated 02.08.2022, prescribesthat once the name of an eligible candidate forcompassionate appointment, is included in the waitlist, the name need not be deleted in view of clause7(B)(a) Note (I) and (II), even if the person crossesthe age barrier of 45 years. We have also recorded inLatikabai (supra) that the State Government hasspecifically adopted the said scheme of the Union ofIndia, and therefore, if an eligible candidate isenlisted before turning 45 years of age andsubsequently crosses that age barrier (of 45 years),the name of such eligible candidate need not be deletedand compassionate appointment can be granted to thesaid eligible candidate.4.The learned AGP has canvassed that theGovernment Resolution dated 20.05.2015, which wasconsidered by this Court in Dnyaneshwar Musane (theoriginal Petitioner before us), was passed by thePage 8 of 10 937-CA-13097-2022.odtGeneral Administration Department (GAD) of the StateGovernment. There was neither any challenge to theGovernment Resolution, nor were there any pleadings onrecord, inasmuch as, the GAD was not a Respondent andno opportunity of hearing was granted. The learned AGP,therefore, contends that the Doctrine of audi alterampartem would be applicable in this case as theGovernment Resolution issued by the GAD has beeninterfered with by this Court without any pleadings andwithout granting any opportunity of hearing to theconcerned Department.5.In view of the above, we are listing thisReview Petition for an “urgent hearing” on 21st March,2024 at 02.30 pm. The learned Advocate for the OriginalPetitioner submits that he would be ready with thismatter on the said date.6.Until then, the State Authorities shall followthe view taken by this Court in Latikabai (supra),unless there is any legal impediment, since theconcerned scheme of the Government of India, wasadopted by the State Government. However, it must benoted that this was never brought to the notice of thisPage 9 of 10 937-CA-13097-2022.odtCourt in Dnyaneshwar Musane or any earlier reportedjudgment.7.We also observe that the direction set out inClause 6-I of the judgment under review dated11.03.2020, declaring Clause 1-C of the said GovernmentResolution as being arbitrary, would not be acted upon.We also record that, if Dnyaneshwar has already beengiven appointment by virtue of the judgment of thisCourt dated 11.03.2020, the same would not beinterfered with.(R. M. JOSHI, J) (RAVINDRA V. GHUGE, J)MalaniPage 10 of 10
Arguments
937-CA-13097-2022.odt2.The learned AGP has cited the judgmentdelivered by this Court at the Principal Seat [Coram:S. V. Gangapurwala, Acting C.J. (as His Lordship thenwas) and Sandeep V. Marne, J], in State of Maharashtraand Another Vs. Rehana Akbar Shaikh and Another, 2023(3) Mh.L.J., 577 wherein it has been recorded inparagraphs 6 to 12 as under:6. We have heard the learned counsels forthe parties. The short issue involved inthe present Petition is whether thesubstitution of name of ward/legal heir ofdeceased employee in the waiting list ofcompassionate appointment in the presentcase is permissible. We must, at theoutset, refer to Government Resolutiondated 20th May 2015 by which a specificprohibition is imposed on substitution ofname of legal heirs in the waiting list ofcompassionate appointment except in theevent of death of a legal heir. This Courtin Smt. Pushpabai Wd/o Rajesh Bisne (supra)has held that the provisions of GovernmentResolution dated 20th May 2015 cannot beapplied retrospectively to a case wheresubstitution was sought before issuance ofGovernment Resolution. Furthermore, thisCourt in Dnyaneshwar Ramkishan Musane vs.the State of Maharashtra and ors., 2020(5)Mh.L.J. 381 = W.P. No. 6267 of 2018judgment of this Court (Bench atAurangabad) decided on 11 March, 2020 hasdirected deletion of condition banningsubstitution of name of legal heirs fromGovernment Resolution dated 20th May 2015holding the same as unjustified.7. Thus, the position that stands as oftoday is that the condition banningPage 2 of 10 937-CA-13097-2022.odtsubstitution of name of ward in waitinglist in Government Resolution dated 20thMay 2015 stands set aside. Would this meanthat in every case such substitution mustbe allowed as a matter of course? Adivision Bench of this Court (to which oneof us was a member) had an occasion todecide this issue in Akshaykumar BalajiKesgire Versus State of Maharashtra & Ors.,2022 MhLJ Online 73 = Writ Petition No.11821 of 2019 decided by Bench atAurangabad on 28th July, 2022. In that case,father of petitioner therein was working asan Assistant Teacher in Zillha ParishadPrimary School who expired on 28.11.2007while in service. Mother made anapplication for compassionate appointmentand by communications dated 17.10.2012 and14.12.2012, mother was called upon tosubmit necessary documents for furtherprocessing of compassionate appointment.However mother failed to comply with therequisition, on account of which though theemployer was willing to appoint mother, shecould not be appointed. After attaining ageof majority, son made application on18.01.2016 for compassionate appointment,which was rejected relying on GR dated20.05.2015. In the background of thesefacts, this Court held as under:8. The objective of grant ofcompassionate appointment is to enablethe family to tide over the situation onaccount of sudden loss of income. In thepresent case the petitioner’s father hadexpired on 28.11.2007 and by the timethe case of the mother was beingconsidered for grant of compassionateappointment, a period of five years hadalready passed. If indeed, the familywas in need of immediate financialassistance in the form of compassionateappointment, the mother would have actedupon the communications issued by thePage 3 of 10 937-CA-13097-2022.odtrespondent No. 2 and cooperated forconsideration of her case for grant ofcompassionate appointment. Instead ofdoing so, the mother expressed inabilityto take up the job without assigning anyparticular reason. In thesecircumstances, we are of the opinionthat the judgment in the case ofDnyaneshwar (supra) is clearlydistinguishable.(emphasis & underlying supplied)This Court has thus distinguished thejudgment in Dnyaneshwar Ramkishan Musane(supra) in a case where offered appointmentis refused and then substitution of name ofa ward is sought.8. Facts of the present case are somewhatsimilar to Akshaykumar Balaji Kesgire(supra). Smt. Sherifa was offeredcompassionate appointment by letter dated8th November 2010. If Smt. Sherifa was tocomply with the requisition made in theletter dated 8th November 2010, she couldhave been possibly appointed oncompassionate ground. However, the motherchanged her mind and by citing the pretextof Smt. Sherifa’s marriage, she thought ofgetting her minor son appointed oncompassionate ground. She accordingly madeapplication dated 6th December 2010. Anis,at that point of time, was only 15 yearsold. Rather than accepting the appointmentoffered to Smt. Sherifa, the mother thoughtit appropriate to keep the case pending forthree more years till Anis attained the ageof majority. This is thus not a simple caseof substitution of name of legal heirs andtherefore the judgment in DnyaneshwarRamkishan Musane (supra) will have noapplication to the present case. For thesame reasons, the judgment in case of Smt.Pushpabai Wd/o Rajesh Bisne (supra) cannotbe made applicable to the unique facts ofPage 4 of 10 937-CA-13097-2022.odtthe present case where compassionateappointment offered to Smt. Sherifa wasvoluntarily given up for creating a claimin favour of Anis who was minor in the year2010.9. It is also required to borne in mindthat death of employee occurred on 5th July2000 and a period of more than 22 years haspassed by now. It would be proftable tomake a reference to the recent judgment ofthe Apex Court in Central Coal Fieldlimited vs. Parden Oraon, 2021 MhLJ Online(S.C.) 82 = Civil Appeal No. 897 of 2021decided on 9th April, 2021, in which theApex Court has made the followingobservations :8. The whole object of grantingcompassionate appointment is to enablethe family to tide over the suddencrisis which arises due to the death ofthe sole breadwinner. The mere death ofan employee in harness does not entitlehis family to such source oflivelihood. The authority concerned hasto examine the financial condition ofthe family of the deceased, and it isonly if it is satisfied that but forthe provision of employment, the familywill not be able to meet the crisisthat the job is offered to the eligiblemember of the family. It was furtherasseverated in the said judgment thatcompassionate employment cannot begranted after a lapse of reasonableperiod as the consideration of suchemployment is not a vested right whichcan be exercised at any time in thefuture. It was further held that theobject of compassionate appointment isto enable the family to get over thefinancial crisis that it faces at thetime of the death of sole breadwinner,compassionate appointment cannot bePage 5 of 10 937-CA-13097-2022.odtclaimed or offered after a significantlapse of time and after the crisis isover.10. In our view therefore, the Tribunalhas committed an error in permittingsubstitution of name of Smt. Sherifa withthat of Anis thereby keeping the case ofcompassionate appointment alive for 22 longyears.11. What remains now is to deal withvarious judgments relied upon by Mr. Kolge:(i) The judgment of this Court in Smt.Pushpabai Wd/o Rajesh Bisne (supra) isdistinguishable for the reasons recordedabove.(ii) The judgment of the Apex Court in MalayaNanda Sethy (supra) reiterates wellsettled law that application forcompassionate appointment must be decidedas per the policy prevailing. Thissubmission is referable to the contentionof Mr. Kolge that the provisions ofGovernment Resolution dated 20th May 2015cannot be made application to the presentcase which relates to year 2000. Even ifthe case of the Respondents is to bedealt with in accordance with provisionsof earlier GR of 1994, the same cannot begranted on account of unique situation ofone of the wards not taking up theappointment thereby indicating non-existence of destitute situation forfamily of the deceased.(iii) The judgment of this Court in Smt.Anusaya V. More (supra) was delivered onaccount of concession made by the StateGovernment for inclusion of names ofRespondent No.2 therein in the waitinglist. The judgment therefore cannot berelied upon in support of the propositionPage 6 of 10 937-CA-13097-2022.odtthat in every case such as substitutionmust permitted.(iv) In the judgment of this Court in DhulajiShrimant Kharat (supra), the issue wasabout failure to file application forcompassionate appointment within oneyear. The judgment has therefore noapplication to the facts of the presentcase.12. In our view, therefore, the Tribunalhas committed an error in partly allowingthe Original Application of Respondents.Respondents apparently labour under amisconception that grant of compassionateappointment is a matter of right, capableof being passed from one dependent toanother as per their choice. If the familywas indeed destitute and in need of anyfinancial assistance, it could haveimmediately accepted the appointmentoffered to Smt. Sherifa in the year 2010.The mother however was in a position towait for three more years till Anisattained the age of majority. Anis himselfdid not make application for compassionateappointment immediately in the year 2013after he attained the majority andsubmitted such an application two yearslater on 2nd March 2015. The family thusvoluntarily waited for five long yearsafter Smt. Sherifa was offeredcompassionate appointment. It is wellsettled law that compassionate appointmentis not a matter of right. The facts of thepresent case do not indicate that thefamily is in need of immediate financialassistance in form of compassionateappointment. The Tribunal has erred indirecting consideration of case of Anis forcompassionate appointment.3.The learned AGP cites the judgment deliveredPage 7 of 10