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2019 Supreme(Bom) 1695
IN THE HIGH COURT OF JUDICATURE AT BOMBAY AT AURANGABAD BENCH
SUNIL P.DESHMUKH, VIBHA KANKANWADI, JJ.
Mahek – Appellant
Versus
The State of Maharashtra Through its Principal Secretary Urban Development Department & Others – Respondents
Writ Petition No. 9334 of 2017
Decided on : 02-12-2019
Advocate Appeared:
For the Petitioner:V.G. Salgare, Advocate.
For the Respondents:S.N. Kendre, AGP, S.B. Ghatol-Patil, Advocate.
Headnote:
Maharashtra Municipal Councils, Nagar Panchayats and Industrial Township Act, 1965 - Section 76- Employment and service - Quash of order - Learned Advocate for the petitioner relied on the decision in the case wherein it has been held by the Division bench of this court, Bench at Nagpur, that there should be proximity between death and appointment to be made on compassionate ground. Such appointment predominantly to be made for enabling the families of deceased to tide over financial constraints occurred due to death of bread-winner of the family and based on these observations, it was submitted that the purpose behind the scheme for appointment on compassionate ground is required to be considered. Further reliance has been placed on Bank of Maharashtra and Anr. - 2002 (4) Mh.LJ. 801, wherein it has been held that the request of the dependent of the deceased for compassionate appointment, cannot be rejected arbitrarily – Held, Thus, it is very much clear that now the specific scheme of getting an appointment on compassionate ground is made available to the dependents of those employees, who were working on Daily Wage basis with Municipal Council prior to 27.3.2000 and who have been absorbed in the service of such Municipal Council by order of Divisional Commissioner. Respondent No.5 now again say that the said scheme will not be applicable to the present petitioner on the ground that Government Resolution is subsequent to the death of Laxman. The wording of the Government Resolution above said, makes it clear that it is retroactive and retrospective in operation - Petitioner is fulfilling all the criterion as he had approached Respondent No.5 within a period of one year from the date of death of Laxman. He is the only male member of the family now who is in need of employment. In Jagdishprasad Vs. State of Bihar & Anr.- (1996) 1 SCC 301, it is observed that, “the very object of appointment of a dependent of the deceased employees, who die in harness is to relieve unexpected immediate hardship and distress caused to family by sudden demise of the earning member of the family.” This principle has been accepted in other catena of judgments by the Apex Court as well as of this court and other High Courts, including two decisions relied upon by the learned Advocate for the petitioner - Only objection, it appears, Respondent Nos.3 to 5 are having is in the order passed on 23.10.2001 passed by Divisional Commissioner, Aurangabad, following term was imposed, which reads thus - On the basis of the above term, it was then said that after death of Laxman, his post as Kamathi has lapsed and it cannot be created for the purpose of compassionate appointment. It appears that, Respondent No.3 to 5 are under some mistaken advice, the purpose for which the compassionate appointment is required to be made, as stated above, has not been considered by them. Getting compassionate appointment cannot be restricted to the appointment to the same post. It will have to be inferred that it is in the same category. In the instant case, deceased Laxman was class-IV employee and, therefore, taking into consideration the educational qualifications of the petitioner, he can definitely to be considered for a suitable post in class-IV category – Order accordingly
JUDGMENT :
Vibha Kankanwadi, J.
1. Petitioner is son of deceased Laxman Narsayya Pusollu, who died in harness in service with Respondent No.5 – Municipal Council, Hadgaon on 20.2.2016. Deceased Laxman was initially a daily wage earner on the post of Kamathi in Sanitary Division of Respondent No.5 from 17.2.1992 to 30.10.2001. Thereafter, he was appointed on the sanctioned regular post of Class-IV employee in regular pay-scale of 5th Pay Commission by Respondent No.5. The said post was converted/recreated under the provisions of Section 76(1)(2) of Maharashtra Municipal Councils, Nagarpanchayats and Industrial Township Act, 1965 (herein after referred as MM Act). The appointment of Laxman on the regular post was from 1.11.2001 by order dated 23.10.2001 issued by Respondent No.3 – Divisional Commissioner, Aurangabad Division, Aurangabad. Thereafter Laxman was confirmed as Class-IV employee and he was awarded time-bound pay-scale in the promotional grade after completion of 12 years of service on 1.11.2013. The order of fixation of pay after grant of time-bound payscale has been passed by Respondent No.5. Due to sudden death of Laxman the only bread-earner of the family has gone and the family, consisting of the petitioner, his mother and sister, are in financial difficulties. He is the elder son. The petitioner and his family members have got legal heirship certificate issued by the competent court, i.e. Civil Judge, Junior Division, Hadgaon on 4.5.2016. After obtaining the said certificate, the petitioner made an application on 19.7.2016 to Respondent No.5 for getting an appointment on compassionate ground. Similar application was again made on 20.2.2017 with Respondent No.5 and both the applications were within the period of limitation of one year from the death of Laxman. The petitioner contends that he is possessing qualifications of HSC, Certificate in Marathi typewriting, English typewriting, Certificate in Advance course in Software and Hardware Engineering and MS-CIT. He belongs to caste of Zinga Bhoi, which is classified as Nomadic Tribe (NT). By stating all these facts when he had made applications to Respondent No.5 for an appointment on compassionate ground, to overcome the financial emergency of the family, it is not being considered. The petitioner is also relying on various Government Resolutions in order to support his claim. By virtue of communication, Respondent No.5 issued a letter dated 19.4.2017 informing the mother of the petitioner that since the petitioner was appointed as Daily Wage employee on 17.2.1992 and later on appointed on the post of Class-IV, the post on which he was appointed was abolished on the death of the employee. It was stated that it would fall vacant due to retirement or for any other reason of the concerned employee and since the post was created under the MM Act, there is prohibition for filling such post in future. The petitioner says that the said letter is not sustainable in the eye of law as Laxman was regularized and confirmed in the created post. He has, therefore, invoked the constitutional powers of this court under Article 226 of the Constitution of India, praying for issuance of appropriate writ or direction to Respondent Nos. 1 & 2 to direct respondent No.5 to appoint him on compassionate ground on any post of Class-III or Class-IV post with Respondent No.5.
2. Affidavit in reply has been filed by one Parag Ramchandra Wankhede, the District Administrative Officer, Nanded, on behalf of Respondent Nos. 4 and 5. It has been stated that Class-III and Class-IV Daily Wage labour worker, prior to 10.3.1993 were absorbed in regular service under One-time Special case, subject to condition laid under Section 76(1) and (2) of the MM Act by the office of Divisional Commissioner. Deceased Laxman was working and later on absorbed subject to certain terms and conditions as imposed by order dated 23.10.2009. It is stated that as per the appointment order, when post become vacant, then such p
