High Court
Legal Reasoning
wp-11657-2021.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.11657 OF 2021Shabana Abdul Rahim ShaikhAge: 29 years, Occu.: Household,R/o. Vihamandwa, Tq. Paithan,District Aurangabad. .. PETITIONERVERSUS1.The State of MaharashtraThrough its Secretary,Education Department,Mantralaya, Mumbai-32.2.Education Officer,Secondary and Higher Secondary,Zilla Parishad Aurangabad, Aurangabad.3.The Secretary/President,Jagdamba Shikshan PrasarakMandal Vihamandwa,Tq. Paithan, Dist. Aurangabad.4.Head Master,Dnyandeep Vidya Mandir Vihamandwa, Tq. Paithan,Dist. Aurangabad.5.S. P. Devkar,C/o. Dnyandeep Vidya Mandir,Vihamandwa, Tq. Paithan,Dist. Aurangabad... RESPONDENTS…Mr. M. V. Narwade, Advocate for the petitioner.Mr. N. S. Tekale, AGP for respondent Nos.1 and 2 – State.Mr. C. B. Gore, Advocate for respondent Nos.4 and 5.… CORAM : SMT. VIBHA KANKANWADI AND S. G. CHAPALGAONKAR, JJ. RESERVED ON : FEBRUARY 26, 2024. PRONOUNCED ON : MARCH 07, 2024.[1] wp-11657-2021.odtJUDGMENT [Per Smt. Vibha Kankanwadi, J.] :- .Rule. Rule made returnable forthwith. Heard learned Advocatefor the appearing parties finally by consent.2.By invoking the constitutional powers of this Court under Article226 of the Constitution of India, the petitioner has prayed for followingreliefs :-“A)By issuing writ of certiorari or any other writ,order or direction in like nature this Hon’ble Courtmay be please to quash and set aside communicationdated 17.08.2021 issued by respondent No.2 videNo.jipau/mavi-6/2021-22/4312 (Exhibit-“G”) andissue necessary order for that purpose.B)By issuing writ of mandamus or any otherwrit, order or directions in like nature this Hon’bleCourt may pleased to direct the respondent No.3 toconsider the claim of the petitioner on compassionateground whereby forward the proposal to therespondent No.2 and also directs the respondentNo.2 to keep the petitioner in wait list and issuenecessary appointment order, in accordance with law.C)By issuing writ of mandamus or any otherwrit, order or directions, the respondent No.2 mayplease be direct to consider the claim of thepetitioner on compassionate ground and pleased toadd the name of the present petitioner in wait listforthwith.”[2] wp-11657-2021.odt3.Heard learned Advocate Mr. M. V. Narwade for the petitioner,learned AGP Mr. N. S. Tekale for respondent Nos.1 and 2 and learnedAdvocate Mr. C. B. Gore for respondent Nos.4 and 5. In order to cutshort, it can be said that all of them have made submissions insupport of their respective contentions.4.It is not in dispute that the husband of the petitioner, namely,Late Abdul Rahim Abdul Karim Shaikh was serving as Peon atDnyandeep Vidyamandir and Higher Secondary School, Vihamandwa,Taluka Paithan, District Aurangabad run by Jagdamba ShikshanPrasarak Mandal, Vihamandwa. He came to be appointed as Peon ontemporary basis on 01.01.1988. Thereafter, the said period wasextended from time to time. His services were confirmed by orderdated 08.01.1995. Her husband was transferred on administrativeground on 06.08.2007 from Vihamandwa to Wahegaon in anotherschool run by the same institute. He was promoted on the post ofNaik after a period of time. The husband of the petitioner died on08.02.2018 in harness. The petitioner had approached respondentNos.3 and 4 for appointment on compassionate ground in place of herhusband. The application was filed on 15.10.2019. No decision wastaken and, therefore, she had approached this Court by filing WritPetition No.6209 of 2020. This Court while disposing of the said writpetition on 26.10.2020 gave directions to respondent No.2 to take[3] wp-11657-2021.odtdecision on the application of the petitioner. Though the said decisionwas not rendered within time fixed by the Court, yet on 17.08.2021respondent No.2 has rejected the said application on the ground thatthere is a committee constituted for correcting the staffing patternand, there is a decision by the government that till then vacant postsshould not be fulfilled. The said order is illegal. The petitioner’shusband was appointed on a permanent post and, therefore,appointment on his place cannot amount to creation of new post. Shehas, therefore, prayed for the above-said reliefs.5.On behalf of respondent No.2 one Mr. Bharat Subhashrao Palve,Superintendent, Class-II, in the office of respondent No.2, has filedthe affidavit-in-reply. The other facts are admitted. It is then statedthat the Government Resolution dated 11.12.2020 granting staffingpattern to the post of Peon has been issued. The petitioner haschallenged the communication by filing writ petition thereby seekingapproval to her appointment. According to him, his office had issuedletter dated 22.03.2002 to respondent No.4 stating that they shouldfollow the Government Resolution dated 31.12.2002. Respondent No.4had given the list of seniority who want appointment oncompassionate ground and the petitioner’s name is at Serial No.5. It isthe stated that as on today, there is no vacant post to giveappointment to the petitioner and, therefore, the petition deserves to[4] wp-11657-2021.odtbe dismissed. 6.Respondent No.4 has filed affidavit-in-reply. It is stated thatrespondent No.3 Education Society runs three schools. There wereabout six persons waiting in the wait list on the compassionateappointments as per the seniority list and the present petitioner is atSerial No.5. No vacant post is available with respondent Nos.3 and 4,but then it is said that after the demise of husband of petitioner, oneS. P. Devkar was already appointed and he was allowed to join thevacant post.7.Respondent No.5 came to be added as respondent during thependency of the petition, as it was pointed out that he has beenappointed in place of the husband of the petitioner. He has filedaffidavit-in-reply and submits that after the application of thepetitioner was rejected on 17.08.2021, he came to be appointed inview of the advertisement. According to him, he was alreadyappointed by order dated 03.05.2008 on the post of Peon, but then hewas found surplus and then absorbed. Therefore, he has been allowedto join the vacant post after the demise of the husband of thepetitioner. According to him, since he has been duly appointed, thepetitioner cannot claim the compassionate appointment. 8.Thus, the facts are very much clear when the petitioner’shusband was a permanent employee of the school and died in harness,[5] wp-11657-2021.odtthe petitioner being the wife of the employee had made the applicationand it appears that her name was taken in the wait list and it was atSerial No.5. It appears that the impugned order passed by respondentNo.2 is the reflection of the confusion of respondent No.2, as heappears to be under impression that he was asked to decide theapproval to the appointment of the petitioner. When the petitionerherself is not claiming that she has been appointed and no suchproposal by the management was ever submitted to respondent No.2for approval, there was no question of grant of approval. Theconfusion in the mind of respondent No.2 reflects when he says that“-------;kfpdkdR;kZP;k oS;fDrd ekU;rk izLrkokoj------” and lastly, he says“------vlsgh vkns’khr dsysys vlY;keqGs ‘kckuk vCnqy jfge ‘ks[k ;kauk lsodinkoj ekU;rk nsrk ;s.kkj ukgh------”. When the order/communication dated17.08.2021 is the result of some mistaken fact or the result ofconfusion, it cannot be allowed to sustain. Further, it appears that atone point of time, respondent No.2 after relying upon GovernmentResolution dated 07.03.2019 says that staffing pattern has been fixedfor non teaching staff and, therefore, fresh appointments cannot bemade. Then it is a questionable fact that whether respondent Nos.3and 4 could have made appointment of respondent No.5. RespondentNo.4 in his affidavit-in-reply has not stated that respondent No.5 was,in fact, appointed in 2008 and was rendered surplus and, therefore,now he has been allowed to join in place of husband of the petitioner.[6]
Decision
wp-11657-2021.odtHowever, it appears that by order dated 03.05.2008, respondent No.2had granted approval in view of some decision in his appeal before theschool tribunal. It also appears that he was a party petitioner in WritPetition No.7500 of 2013 before this Court. The said writ petition cameto be disposed of on 22.07.2015. The said order passed by this Courtappears to be on totally different issue. No doubt, it states that thepetitioner therein and present respondent No.5 were included in thelist of surplus candidates, who were to be absorbed and they arehaving B.A., B.Ed. qualification. According to them, they could nothave been placed in the list below the one’s who possesses the D.Ed.or A.T.D qualification. Directions were given that the petitionersshould be absorbed as and when the vacancy arises for the postmeant for the candidates possessing B.A., B.Ed. qualification. The postwhich the petitioner in the present case is demanding is Peon and,therefore, it ought to have been considered by respondent No.2whether he could have been absorbed in place of husband of thepetitioner, when the preference is required to be given to theappointment by compassionate ground. 9.It will have to be then also observed that the staffing patternthat has been now fixed cannot come in way to the petitioner for thesimple reason that the post her husband was holding was a permanentpost and anybodies appointment at his place, especially on the ground[7] wp-11657-2021.odtof compassionate appointment, cannot amount to new appointment.Respondent No.4 will not be justified in saying that no vacant post is inexistence. All these factors appears to have not been considered byrespondent No.2 while passing the order/communication dated17.08.2021.10.As regards the above-said reliefs, especially relief ‘B’, it can beseen that the name of the present petitioner is already in the wait listand it is at Serial No.5. However, that wait list is then also required tobe kept with respondent No.2 and for that purpose, respondent No.2should take a decision. The decision that has been taken by him on17.08.2021, as aforesaid, is under confusion or mistaken facts. Hence,that deserves to be set aside. Whether respondent No.2 shouldapprove the services of respondent No.5 is a different aspect and,therefore, the matter deserves to be relegated to respondent No.2 todecide the application of the petitioner afresh. Hence, the followingorder is passed :-ORDERI)Writ Petition stands partly allowed.II)The impugned communication dated 17.08.2021 byrespondent No.2 is hereby quashed and set aside.III)The matter is relegated to respondent No.2. He shouldconsider the fact that respondent No.4 has already kept a waitlist for the compassionate appointment and name of the[8] wp-11657-2021.odtpetitioner is at Serial No.5. On the basis of the same, he shoulddecide to keep her name in the wait list.IV)Respondent No.2 should also consider as to whetherrespondent No.5 could have been appointed in place of thehusband of the petitioner and to consider the prayer of thepetitioner to direct respondent Nos.3 and 4 to appoint her oncompassionate ground.V)The entire exercise should be done within a period of twomonths from today.VI)Respondent No.2 may give opportunity to the petitionerand respondent Nos.3 to 5 before taking decision as aforesaid. VII)Rule is made absolute in the above terms.[ S. G. CHAPALGAONKAR ] [ SMT. VIBHA KANKANWADI ] JUDGE JUDGEscm[9]