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2022 DIGILAW 1944 (BOM)

Payal d/o. Puran Patle v. State of Maharashtra

2022-08-25

A.S.CHANDURKAR, URMILA JOSHI PHALKE

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JUDGMENT : Urmila Joshi Phalke, J. 1. Rule. Rule made returnable forthwith. 2. Heard Shri P.S. Kshirsagar, learned counsel for the petitioner and Smt. S.S. Jachak, learned Assistant Government Pleader for respondent Nos.1 and 2. 3. Father of the petitioner, namely, Shri Puran Mohanlal Patle was appointed as a Live Stock Supervisor in the Zilla Parishad, Chandrapur. He died on 17.7.2013 while in service. Mother of the petitioner, namely, Smt. Devita Puran Patle had filed an application for compassionate appointment on 5.8.2013. Her name was included in the waiting list but due to health problem mother of the petitioner requested to substitute the name of petitioner Payal Puran Patle. The Block Development Officer, Panchayat Samiti, Bramhapuri forwarded the said proposal to the respondent No.3 to substitute the name of petitioner in the waiting list on 7.3.2014. Accordingly, name of the petitioner was included in the waiting list published on 28.2.2015 at Serial No.157. The name of the petitioner was continued in waiting list published on 1.11.2017. In view of the Government Resolution dated 20.5.2015 the name of the petitioner was deleted from waiting list published in June 2018. Before deleting the name of the petitioner on 9.4.2018 respondent No.1 issued letter to the Chief Executive Officer, Zilla Parishad i.e. respondent No.3 informing that in view of Government Resolution dated 20.5.2015 there is no provision to substitute the name of other legal heirs. The name of other legal heirs could be included only in case of death of the concerned applicant. In the light of the above communication respondent No.3 issued a letter dated 5.7.2018 to the petitioner informing that in view of above Government Resolution her name could not be continued and name of her mother is to be included. Said communication was replied by the petitioner by informing that her name was included prior to said Government Resolution, therefore her name could not be removed. However, respondents included the name of her mother and removed her name. Said action of the respondents is challenged by the petitioner in the present petition. It is the contention of the petitioner that the action of the respondent is illegal, arbitrary and liable to be set aside. 4. However, respondents included the name of her mother and removed her name. Said action of the respondents is challenged by the petitioner in the present petition. It is the contention of the petitioner that the action of the respondent is illegal, arbitrary and liable to be set aside. 4. In response to the notice the respondents opposed the petition on the ground that in the light of the Government Resolution dated 20.5.2015 in Clause 1(c) “after the death of any employee the name of the eligible candidate of the family once taken in waiting list of compassionate appointment, then his/her name could not be substituted by any other another eligible successor of the family.” Thus, the provision of substitution of name of candidate in the waiting list does not exists in current policy. It is the contention of the respondent that if the death of a candidate of the waiting list is occurred then name of another eligible candidate could be substituted on the place of original candidate. Therefore, action of the respondent is justified and writ petition deserves to be dismissed. 5. Heard learned counsel Shri P.S. Kshirsagar, for the petitioner. He reiterated the contentions as per the petition and submitted that said Government Resolution could not be applied retrospectively. Prior to the said Government Resolution name of the petitioner was included in the waiting list. Therefore, the action of the respondents is illegal and liable to be set aside. In support of his contention he relied upon the decision of this Court in Writ Petition No.2014/2019, wherein it is held that such refusal of including the name cannot be sustained in the eye of law. He also relied upon Dnyaneshwar Ramkishan Musane Vs. State of Maharashtra and others, Writ Petition No.6267/2018, decided on 11.3.2020, wherein this Court has held that prohibition imposed by the Government Resolution dated 20.5.2015 that name of any legal representative of the deceased employee would not be substituted by any other legal representative seeking appointment on compassionate ground is arbitrary, irrational and unreasonable and violates the fundamental rights guaranteed by Article 14 of the Constitution of India. It is further observed by this Court that as per the policy of the State Government one legal representative of deceased employee is entitled to be considered for appointment on compassionate ground. It is further observed by this Court that as per the policy of the State Government one legal representative of deceased employee is entitled to be considered for appointment on compassionate ground. The prohibition imposed by the Government Resolution dated 20.5.2015 that if one legal representative of deceased employee stakes claim for appointment on compassionate ground, then name of another legal representative of that deceased employee cannot be substituted in the list in place of other legal representative who had submitted her/his application earlier does not further the object of the policy of the State Government regarding appointments on compassionate grounds. Such prohibition frustrates the object for which the policy to give appointment on compassionate ground is formulated. He submitted that thus the Government Resolution dated 20.5.2015 itself is held by this Court to be illegal. He submitted that in fact the said Government Resolution is not applicable in the present case as the name of the petitioner was included prior to issuance of said Government Resolution, said Government Resolution could not be applied retrospectively. 6. On the other hand learned Assistant Government Pleader Smt. S.S. Jachak, for the respondent Nos.1 and 2 supported the stand of the respondents and submitted that in view of the Government Resolution the action of the respondents is justified one. 7. Heard both sides. Perused the record. It is not disputed that petitioner’s father namely Puran Mohanlal Patle was appointed as a Live Stock Supervisor in Zilla Parishad, Chandrapur. He died on 17.7.2013. His death certificate is on record. It is also not disputed that the mother of the petitioner had filed an application for compassionate appointment on 5.8.2013. The name of her mother was included in the waiting list but on her request the name of the petitioner was substituted in the waiting list on 28.2.2015. The waiting list published on 28.2.2015 shows the name of the petitioner at Serial No.157. The name of the petitioner was further continued in the waiting list published on 1.11.2017. Subsequently, the petitioner had received a communication from the respondent No.3 informing that her name is to be removed from the list in accordance with the Government Resolution dated 20.5.2015. She replied the said communication mentioning that her name was included prior to said Government Resolution and therefore it could not be removed. Subsequently, the petitioner had received a communication from the respondent No.3 informing that her name is to be removed from the list in accordance with the Government Resolution dated 20.5.2015. She replied the said communication mentioning that her name was included prior to said Government Resolution and therefore it could not be removed. However, the respondent No.3 included the name of mother of the petitioner in the waiting list. The communication dated 4.8.2018 by the original applicant mother of the petitioner also shows that the name of the petitioner was included as per her consent, now she has crossed the age of 44 and therefore the communication dated 5.7.2018 be set aside and name of the petitioner be continued in the waiting list. 8. It is well settled that the appointment on compassionate ground has to be made in terms of the scheme and not otherwise. The whole object of granting compassionate employment by an employer being intended to enable the family members of a deceased to come over the sudden financial crisis. The appointment on compassionate ground should be made immediately to redeem the family in distress. It is also well settled that no one can claim compassionate appointment by way of inheritance. In the present case after the death of the employee immediately application was made on 5.8.2013 itself. In accordance with the existing policy the name of the mother of the petitioner was included in the waiting list. On her request the name of the petitioner was included in a waiting list published on 28.2.2015. The Government Resolution referred by the respondents was issued on 20.5.2015 i.e. subsequent to the waiting list published by the respondents. Said Government Resolution nowhere states that the Rule (c) would be applicable to the earlier application, the clause (c) of the said Government Resolution shows that there is no provision to substitute the name of other legal heirs. It could be substituted only in case of death of the original applicant. This Government Resolution is already held contrary to the Article 14 of the Constitution of India. This Court in Writ Petition No.6267/2018 in Dnyaneshwar Musane vs. State of Maharashtra decided on 11th March, 2020 held that the Government Resolution dated 20.5.2015 is arbitrary, irrational and unreasonable and violates the fundamental rights guaranteed by Article 14 of the Constitution. This Government Resolution is already held contrary to the Article 14 of the Constitution of India. This Court in Writ Petition No.6267/2018 in Dnyaneshwar Musane vs. State of Maharashtra decided on 11th March, 2020 held that the Government Resolution dated 20.5.2015 is arbitrary, irrational and unreasonable and violates the fundamental rights guaranteed by Article 14 of the Constitution. This Court further in the said decision held that as per the policy of the State Government one legal representative of deceased employee is entitled to be considered for appointment on compassionate ground. The prohibition imposed by the Government Resolution dated 20.5.2015 that if one legal representative of deceased employee stakes claim for appointment on compassionate ground then name of other another legal representative of that deceased employee cannot be substituted in the list in a place of other legal representative does not further the object of the policy of the State Government regarding appointments on compassionate ground. Admittedly, such prohibition frustrates the object for which the policy to give appointments on compassionate grounds is formulated. Here in the present case the name of the petitioner was already substituted prior to issuance of the said Government Resolution dated 20.5.2015. The name of the petitioner was substituted on 28.2.2015 i.e. prior to issuance of said Government Resolution. Therefore, said Government Resolution can not be applied in the case of petitioner retrospectively. This Court in Writ Petition No.3492/2020 Santosh s/o. Sukhdeo Metkar vs. Sub-Divisional Engineer, Zilla Parishad, Dharni, decided on 27.6.2022 has already held that once the name of the petitioner was included in the waiting list after considering the record, the action of the respondents without giving an opportunity to resist the said ground is illegal and arbitrary. Here in the present case the communication by the respondents is already replied by the petitioner by bringing the said fact to the notice of the respondents that her name was included prior to the said notification but the respondents had ignored the said fact and deleted her name. It was further brought to the notice of the respondents that the original applicant is on the verge of completing the age of 45 years. This fact is also ignored by the respondents. As it is already observed that the said Government Resolution could not be applied retrospectively, the action of the respondents is illegal and unconstitutional. 9. It was further brought to the notice of the respondents that the original applicant is on the verge of completing the age of 45 years. This fact is also ignored by the respondents. As it is already observed that the said Government Resolution could not be applied retrospectively, the action of the respondents is illegal and unconstitutional. 9. In that view of the matter we find that the action of the respondents is illegal, arbitrary and against the basic object of the policy of giving appointment on compassionate ground. Hence, writ petition succeeds. In the result, we proceed to pass following order : ORDER (i) The Writ Petition is allowed. (ii) The order passed by the respondent No.3-Chief Executive Officer, Zilla Parishad, Chandrapur dated 5.7.2018 is hereby set aside. (iii) It is directed that the petitioner’s name shall be restored in the waiting list issued by the respondents seeking appointment on compassionate basis that was published on 28.2.2015. 10. Rule is accordingly made absolute in the aforesaid terms. There shall be no order as to cost.