Partly allowed

Shaikh Tajamul Shaikh Abdul Wahid v. the State of Mah and Ors.

Bombay HC25 Aug 2010WP/6305/2009

Case brief

AI extract

What is this about?

Petitioner sought quashing of a communication refusing appointment on compassionate grounds. The Court held the order liable to be quashed as the petitioner's father lost his job due to incapacity, making the family eligible for succor under the relevant Government Resolution. Petitioner directed to claim appointment within three months.

What did the court decide?

Impugned order of 29.3.2008 quaashed; Respondent directed to consider application for appointment on compassionate ground within three months.

Shaikh Tajamul Shaikh Abdul Wahid Vs the… — Pension and Retirement Benefits | Bombay HC (2010)

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IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD

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WRIT PETITION NO.6305 OF 2009

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Shaikh Tajamul s/o Shaikh Abdul
Wahid, Age: 30 Yrs.,
occu.Nil, r/o Mohalla Gummat,
Johar Colony, Sillod, Tq.Sillod,
DistrictAurangabad. - PETITIONER

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 VERSUS

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1) The State of Maharashtra

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Through its Principal Secretary,

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Rural Development Department,
Mantralaya, Mumbai.

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2) The Dean,

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Government Medical College &
Hospital, Aurangabad,
District Aurangabad.

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3)The Zilla Parishad, Jalna,
Through its Chief Executive
Officer, Z.P.,Jalna,
District Jalna. - RESPONDENTS

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*****

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Mr.MS Choudhari,Advocate for Petitioner;

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Mr.RP Phatake,AGP for Respondent Nos.1 & 2;
Mr.Bhushan Kulkarni, Advocate for Resp.No.3.

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CORAM :S.B.DESHMUKH &
K.U.CHANDIWAL,JJ.

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DATE : 25th August, 2010.

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ORAL JUDGMENT (PER: S.B.DESHMUKH,J.)

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1)Heard the learned Counsel for the

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respective parties.

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2)Rule. Rule made returnable forthwith.
Heard finally by consent of the parties.

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3)The petitioner, by this petition filed
under Article 226 of Constitution, seeks
quashment of communication dated 29th March, 2008
issued by Respondent No.3 – Chief Executive
Officer, Zilla Parishad, Jalna, refusing
appointment to the petitioner on compassionate
ground. The principal challenge, raised in this
petition by the petitioner, is to this
communication of respondent no.3. The petitioner
also seeks appointment on compassionate ground on
Class-III post on the establishment of Respondent
No.3.

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4)There are some admitted facts amongst
the parties. Respondent No.3 is constituted in
accordance with the provisions of Maharashtra
Zilla Parishads and Panchayat Samities Act, 1961
(hereinafter to be referred as the said Act).
Father of the petitioner, viz. Sk. Abdul Wahed
Sk. Abdul Rajjak, indisputably was working as a
Compounder with Primary Health Center, Warud
(Bk.)run by Respondent no.3. According to the
petitioner, his father was suffering from
paralysis and had also sustained a paralytic
attack when he was working as Compounder with
Respondentno.3.Severalclinical
tests/investigations were carried out in
accordance with medical advice. Father of the
petitioner was also required to be admitted
initially in a hospital run by Respondent no.3
and subsequently in a private hospital, since the
facilities required to a patient like father of
the petitioner, were not available at the
particular of time, in the hospital run by
Respondent No.3.

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5)The learned Counsel for petitioner
points out the Certificate dated 27th August, 2001
issued by the Medical Officer, Primary Health
Center, Warud (Bk.), Tq. Jafrabad, District Jalna
(page 20 of the petition), which reveals that
father of the petitioner was admitted to a

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Primary Health Center, since he sustained heart
attack. Subsequently, father of petitioner
suffered a paralytic attack, for which certain
tests were carried out; Oxygen was required to be
provided to him and ECG test was required to be
done. As the said facilities were not available
in the Government hospital, therefore, father of
the petitioner was advised to be shifted and
admitted in a private hospital.

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6)Our attention is invited to the
Certificate dated 2nd September, 2001 (page 22 of
compilation)issuedbyDr.K.G.Pargaonkar,
certifying that Mr.Abdul Wahed Abdul Rajjak, 50
Yrs./male, (i.e. father of petitioner) was
admitted in that hospital, was treated from
27.8.2001 to 2.9.2001 for acute myocardial
infraction with cerebral vascular accident and he
was advised to take rest for two months from 27th
August, 2001. Report shows MRI Scan of brain
without contrast was carried out. The said report
dated 12th June, 2006 of Mangal Medi-Centre is at
page 23 of the petition.

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7)The contention of the petitioner, that
his father sustained heart attack and paralytic
attack, when he was working as Compounder, is
substantiated by a communication (Exhibit-B, page
25 of WP) dated 9.9.2001, issued by Medical

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Officer, PHC, Warud (Bk.) Tq. Jafrabad, District
Jalna to District Health Officer, Zilla Parishad,
Jalna, wherein it is mentioned that when the
father of the petitioner was on duty on 25th
August, 2001, suddenly he suffered an heart
attack followed by severe paralytic attack
and, therefore, he was required to proceed on
long leave. The said communication further
clarifies that father of the petitioner was found
to be incapable of performing his duty as a
Compounder and was on leave w.e.f. 26.8.2001
onwards.

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8)Anothercommunicationdated18th

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December, 2001 is considered by us. It is
addressed by Medical Officer, Primary Health
Center, Warud(Bk.) to District Health Officer,
Zilla Parishad, Jalna. This communication also
supports the case of the petitioner..

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9)The order dated 20th February, 2002,
passed by the Respondent No.3 is pointed out to
us. It is at Exhibit-D (page 29 of compilation).
By virtue of this order, father of the petitioner
was found incapable to perform his duties as a
Compounder on medical ground as mentioned in the
Certificate and was relieved from service. This
very document is significant from two view
points, firstly during the course of employment,

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an employee can be relieved from service on the
ground of a resignation by Respondent No.3;
Secondly, the concerned employee, who deserves to
be dismissed or whose services are to be
terminated, after following Service conditions by
the competent authority, could be relieved from
services; Third is the category, in accordance
with Service Conditions of Respondent no.3, if an
employee is found incapable for discharging his
duties on the ground of illness. This 3rd course
of action appears to have been resorted to by the
respondents. This very fact is not seriously
disputed on behalf of Respondent no.3.

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10)The learned Counsel appearing for
respondent no.3 supported the order passed. He
invited our attention to Exhibit-C (page 28),
which is a Certificate issued by the Medical
Board. This document is of prime importance. It
is not disputed by learned Counsel appearing for
Respondent No.3 that this certificate has been
issued by the Medical Board. The learned Counsel
submits that the certificate (Exhibit-C) is
issued in accordance with the provision contained
in Rule 71(1) of Maharashtra Civil Services
Rules. These MCS Rules are applicable to the
employees of the State Government. Indisputably,
these Rules have also been made applicable to the
employees of Respondent No.3. A format of a

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Certificate, to be issued under Rule 72(1) of
MCSR, is laid down. The Certificate (Exhibit-C,
page 28) is exactly in consonance with the said
format. This certificate has been signed by the
Members of the Medical Board. One of them
appears to be President and two others are
members of the Board. This certificate discloses
that father of the petitioner, on the date of
issuance of the certificate, i.e. 26th December,
2001, was around 47 years old. Counsel for the
Respondent no.3 points out the age that has been
claimed by the petitioner on the date of issuance
of the certificate. In other words, according to
counsel for Respondent no.3, father of petitioner
claimed to be 47 years of age on that date and
has been accepted by the Medical Board. The next
sentence of this certificate has been pointed out
to us by Mr.Choudhari, learned Counsel for
petitioner. The Medical Board has observed that
by appearance it felt father of the petitioner
was around 47 years old.

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11)This matter was before this Court day
before yesterday. After arguing the matter for
some time, the counsel for respondent no.3
sought time to get the original record from the
respondent no.3. This was to ascertain the date
of birth and age of father of the petitioner on
26th December, 2001. Time was granted.

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Today, the learned Counsel Mr. Kulkarni,
fairly states that the claim of the petitioner,
that date of birth of his father as 27th December,
1955, is correct. In other words, father of the
petitioner was 47 years old on the date of
issuance of the certificate dated 26th December,
2001. Another important aspect that needs to be
looked into that the said Certificate specifies
as to incapacity of father of the petitioner for
performing his duties as Compounder. The
illness, which has been certified by the Medical
Board is, “Diabetes Mellitus Ischemic heart
diseasewithessentialhypertension”.
Mr.Kulkarni, learned Counsel, has made available
the original copy of the Certificate from the
file. We have seen the said certificate and
considered the description of illness/ailment
suffered by father of the petitioner at the
relevant time. The original certificate, after
perusal, has been returned to learned Counsel for
Respondent No.3.

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12)Mr.Kulkarni, learned Counsel, contended
that Government Resolution dated 28th March, 2001,
has been interpreted in its proper perspective by
Respondent no.3. He points out Exhibit-E (page
30 of petition), which is a copy of Government
Resolution dated 28th March, 2001. This Govt.
Resolution is relevant from the point of

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submission made on behalf of the respondent no.3.
The said Govt. Resolution depicts that the Rules
for appointments on compassionate ground, which
were in existence on 25th October, 1994; 23rd
August, 1996 and 12th March, 1997, have been
revised and reconsidered by the State Government
with certain modifications. Clause (B) of the
said Govt. Resolution is relevant, according to
which, the clauses 2(B), (C) (D) as set out in
Govt. Resolution date 26th October, 1994 have been
deleted and skipped and instead, amended clause
2(B) is incorporated, which is reproduced in
verbatim as under :

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“The employees, who incurred
incapacity or incapability of
performing duties perpetually on
account of Cancer, paralysis or
accident, before completing 50 years
of their age, the family members of

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suchemployeescanonlybe
consideredaseligiblefor
appointmentsoncompassionate
ground”.

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13)Mr.Kulkarni, learned Counsel, disputes

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the claim of the present petitioner on that
ground that father of the petitioner was
suffering from heart ailments at the relevant
time. It is not in dispute that father of the

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petitioner died on 13th November, 2006. We are
not concerned with date of death of father of the
petitioner. In the facts and circumstances of
the present case, father of the petitioner was
relieved from service on account of having
incurred incapacity/incapability. The dispute is
only in respect of a particular disease claimed
by the petitioner. According to petitioner, his
father had incurred incapacity on account of
paralysis. Mr. Kulkarni, learned Counsel,
submits that incapacity incurred by an employee
on account of paralysis is not contemplated in
the Government Resolution (Exhibit-C).

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14)We have seen the Government Resolution
(Exhibit-C). In our opinion, appointment on
compassionate ground is a policy decision laid
down by the State Government, principally on
account of death of a Government employee and
sufferance of the dependent family members of
such employee. The objective in framing such a
policy by the State Government is to make
available immediate succor to the family members
who have lost their bread-winner. Another aspect
of the matter is, loss of employment by a
Government employee owing to having incurred
incapacity/incapability to perform the duties due
to serious ailments/illness and accident. In the
instant case, there is ample material on record

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to show that father of the petitioner was working
as Compounder with Respondent No.3, he had
sustained paralytic attack, was admitted to
primary health center initially and subsequently
to private hospital, was treated for said illness
and died in 2006. Fact remains that the family
of deceased – Mr.Abdul Wahed Abdul Rajjak, has
lost the bread-winner. The claim of the present
petitioner that his father was bread-winner and
after compulsorily retiring the father of the
petitioner, his family is facing financial
difficulties is justifiable. In our view, case
of the present petitioner is squarely covered by
Government Resolution (Exhibit-E). Therefore, the
impugned order passed by Respondent No.3, needs
to be quashed and set aside. We are therefore
inclined to quash and set aside the impugned
order in this petition with further directions to
Respondent No.3. to consider the claim of the
presentpetitionerforappointmenton
compassionate ground, as per his eligibility on a
suitable post and in accordance with provisions
of law and the relevant Government Resolution
issued in this regard.

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15)In the result, the writ petition is
partly allowed. The impugned order dated 29th
March, 2008 (Exhibit-H) issued by respondent No.3
- Chief Executive Officer, Zilla Parishad, Jalna,

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is hereby quashed and set aside. The Respondent
No.3 is directed to consider the claim of the
presentpetitionerforappointmenton

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compassionate ground as per his qualification,
suitability and in accordance with provisions of
law, and the relevant Government Resolution
issued in this regard, within a period of three
months from today. Rule is made partly absolute
in above terms. There shall be no order as to
costs.

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sd/-sd/-
(K.U.CHANDIWAL) (S.B.DESHMUKH)
 JUDGE JUDGE

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bdv/

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Authenticated copy

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(BD VADNERE,PS)

Shaikh Tajamul Shaikh Abdul Wahid v. the State of Mah and Ors.

Case brief

What is this about?

What did the court decide?

Shaikh Tajamul Shaikh Abdul Wahid v. the State of Mah and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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