Allowed

Dattatraya Sukdeo Chitte v. the State of Maharashtra and Ors.

Bombay HC10 Jul 2014WP/6185/2005

Case brief

AI extract

What is this about?

The High Court allowed a writ petition seeking quashing of an order cancelling the petitioner's appointment as an Extension Officer. The court held that despite a lapse in rules regarding compassionate appointments, it was not equitable to cancel the order after eight years of service and subsequent developments, emphasizing natural justice.

What did the court decide?

Petition allowed; Rule made absolute to quash the impugned communication cancelling the petitioner's appointment.

Dattatraya Sukdeo Chitte Vs the State of… — Pension and Retirement Benefits | Bombay HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE

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WRIT PETITION NO. 6185 OF 2005

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Shri Dattatraya Sukdeo Chitte, Age: 37 yrs., Occupation: Service, residing at 3, Ashapuri Apartment, Tidke Nagar, Near Untawadi Bridge, Nashik. ... Petitioner.

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V/s.

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The State of Maharashtra, Through the Under Secretary, Rural Development and Water Conservation Department, Government of Maharashtra, Mantralaya, Mumbai.

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The Divisional Commissioner, Nashik Division, Nashik.

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The Zilla Parishad, Nashik Through its Chief Executive Officer, Nashik. ... Respondents.

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M.S.Karnik i/b. Ms.P.P.Indulkar for petitioner.

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Ms.J.B.Kurup, B-Panel AGP for respondent Nos.1 and 2.

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V.V.Gangurde for respondent No.3.

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CORAM : NARESH H. PATIL AND RAVINDRA V. GHUGE, JJ.

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DATED : 10th July 2014.

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JUDGMENT : (PER NARESH PATIL, J.)

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This petition was admitted vide order dated 6th October 2005. Interim relief in terms of prayer clause (c) is operating since then.

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The petitioner seeks directions to quash and set aside a communication dated 24th August 2005 issued by respondent No.1 to respondent No.2 and a declaration that the said communication dated 24th August 2005 was illegal.

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The petitioner contends that his father was in service of respondent No.3- Zilla Parishad and was discharging duties as Head Master of Prathamik Vidya Mandir at Vinchoor. Father of the petitioner expired on 17th April 2003. The petitioner made an application to the Executive Officer of the Zilla Parisahd requesting for an appointment on compassionate ground. Considering the stringent financial conditions faced by the petitioner and considering his qualifications, a specific request was made by the petitioner to appoint him as Extension Officer in the service of the Zilla Parishad. By communication dated 18th October 1995, the petitioner was appointed as Tracer. He worked on the said post for about two years. Thereafter on 23rd July 1997, the petitioner was appointed as an Extension Officer. By communication dated 24th August 2005, respondent No.1 cancelled the appointment of the petitioner as Extension Officer and directed his reappointment as Tracer. The State had also directed recovery of service benefits derived by the petitioner as Extension Officer.

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Respondent No.1 has filed an affidavit-in-reply of Shri P.B.Pawar, Under Secretary to the Government, Rural Development and Water Conservation Department, Mantralaya. It is contended that the reappointment of the petitioner as Extension Officer was in contravention of the rules as well as principles of the scheme framed for appointment of persons on compassionate ground. The petitioner has filed a rejoinder to the affidavit filed by respondent Nos.1 and 2.

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The learned counsel appearing for the petitioner submits that the petitioner was eligible to be appointed as Extension Officer. As the petitioner and his family were in acute need of service and financial assistance, the petitioner opted for the available post of Tracer. The Zilla Parishad after considering the request of the petitioner and in view of availability of vacancy in the post of Extension Officer issued an appointment order dated 23rd July 1997 appointing the petitioner as Extension Officer. It is submitted that since then the petitioner is working as Extension Officer. The State Government without issuing any show-cause-notice or according any opportunity of hearing to the petitioner abruptly passed the order of cancellation of appointment of the petitioner as Extension Officer, that too, after eight years of the petitioner's discharging duties on the said post. Learned counsel submitted that it would not be equitus now to uphold the view of the State directing the petitioner's reappointment as Tracer. Learned counsel submitted that there are subsequent developments in the matter. The petitioner has now been promoted to the post of Assistant B.D.O. by order dated 12th May 2014, though this order is subject to final outcome of this petition. Learned counsel for the petitioner has placed reliance on the following judgments:

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(i) Shridhar Dular v. Nagarpalika, Jaunpur , 1990 SCC (L&S) 600; (ii) Jaswant Singh v. State of M.P ., 2002 SCC (L&S) 1128; (iii) Basudeo Tiwary v. Sido Kanhu University , AIR 1998 SC 3261=1999 SCC (L&S) 174; (iv) S.Govindaraju v. K.S.R.T.C. , AIR 1986 SC 1680=1986 SCC (L&S) 520; (v) State of Hariyana v. Naresh Kumar Bali , 1994 SCC (L&S) 909; (vi) Dr.M.S.Mudhol v. S.D.Halegkar , 1993 SCC (L&S) 986; (vii) Smt.Kamala Gaind v. State of Punjab , 1991 SCC (L&S) 637; and (viii) Niraj v. Member, M.A.T., Nagpur , 2002 (2) Mh.L.J. 253.

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In the submission of the learned counsel for the petitioner, equity and balance of convenience are in favour of the petitioner. He submits that in case if the petitioner is now directed to be appointed as a Tracer then he would suffer hardship and financial loss. He submits that now the post of Tracer is not existing.

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Learned A.G.P. appearing for respondent Nos.1 and 2 submits that on the complaint received from Gram Sevak Sanghatana, Nashik, the State Government had taken an appropriate decision to cancel the appointment of the petitioner as Extension Officer. She submits that once a person gets benefits of appointment under the compassionate scheme he is not entitled to appointment on the higher post or to the appointment for a second time as has happened in this case. According to the learned A.G.P., the second order issued in favour of the petitioner appointing him as an Extension Officer is contrary to the scheme framed for such purpose. Learned A.G.P. submits that though the decision of the State Government was taken at belated stage, that cannot be a ground to

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interfere in the matter at the behest of the petitioner.

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Learned counsel appearing for respondent No.3- Zilla Parishad submitted that no sooner the State realized that the second appointment order issued by the Zilla Parishad in favour of the petitioner appointing him as Extension Officer was contrary to the rules, circulars and guidelines issued by the State, an appropriate decision was taken which should not be interfered with. It is also submitted that some departmental enquiry was being held against the officers who issued that order.

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We have perused the record and the judgments cited. We have also considered the submissions advanced by learned counsel for the rival parties.

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The appointments on compassionate grounds are to be viewed and considered strictly in accordance with the scheme framed by the State or the respective employer. In accordance with the scheme framed by the State and on an application made by the petitioner, he was appointed as a Tracer in the year 1995. After near about 2 years i.e. in the year 1997, the petitioner was appointed as an Extension Officer. According to the petitioner, in fact, he was eligible to be considered as Extension Officer but as the said post was not available at the relevant time, he was appointed as Tracer. The petitioner's appointment as an Extension Officer, according to him, cannot be treated as a second appointment but a correction made in the first appointment order issued by the Zilla Parishad.

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In principle, we find that the Zilla Parishad ought to have avoided issuance of a second appointment order in favour of the petitioner as Extension Officer. We do not find any convincing reasons for the State Government to interfere after near about eight years on the complaint made by some Gram Sevak Sanghatana. It is a matter of record that without issuing a show-cause-notice or without hearing the petitioner the State vide impugned communication dated 24^th August 2005 decided to cancel the appointment order of the petitioner as Extension Officer which was issued on 23^rd July 1997. The subsequent developments in the matter also need careful scrutiny. It is submitted that the petitioner has so far worked for about 18 years. He has been recently promoted to the post of Assistant B.D.O. Now the vacancy for the post of Tracer is not existing in the Zilla Parishad.

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While considering the facts of the case we have considered the fact that an ex parte decision was taken by the State and the subsequent developments as mentioned above would have bearing on the facts of this case. The Apex Court in the case of Shridhar Dular v. Nagarpalika, Jaunpur (supra) as observed as under:

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“8. The High Court committed serious error in upholding the order of the Government dated February 13, 1980 in setting aside the appellant's appointment without giving any notice or opportunity to him. It is an elementary principle of natural justice that no person should be condemned without hearing. The order of appointment conferred a vested right in the appellant to hold the post of Tax Inspector, that right could not be taken away without affording opportunity of hearing to him. Any order passed in violation of principles of natural justice is rendered

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void. There is no dispute that the Commissioner's Order had been passed without affording any opportunity of hearing to the appellant therefore the order was illegal and void. The High Court committed serious error in upholding the Commissioner's Order setting aside the appellant's appointment. In this view, orders of the High Court and the Commissioner are not sustainable in law.”

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This Court in para-16 of its judgment in the case of Niraj v. Member, M.A.T., Nagpur (supra) has observed as under:

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“16. The submission on behalf of the Government that the order passed earlier was a wrong order, has also to be rejected for one more reason. The petitioner had acted bona fide and had been issued the appointment order by the competent authorities concerned. Any error or mistake on the part of appointing or selecting authority cannot be pressed to his prejudice. That also has been the view taken by the Apex Court in the case of Ashok Chand Singhvi v. University of Jodhpur and Ors. reported in (1989) 1 SCC 399.”

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In case the State had taken a decision at the earliest, then it was possible to correct the error at the relevant time. But in view of the aforementioned facts and subsequent developments, we find that it is not equitus now to unsettle the position by cancelling the appointment order issued in favour of the petitioner as Extension Officer. For the reasons stated above, we are inclined to grant this petition.

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Petition is allowed. Rule is made absolute in terms of prayer clause (a). No costs.

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(RAVINDRA V. GHUGE, J.)

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(NARESH H. PATIL, J.)

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Sanjay Nanoskar, P.S..

Dattatraya Sukdeo Chitte v. the State of Maharashtra and Ors.

Case brief

What is this about?

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Dattatraya Sukdeo Chitte v. the State of Maharashtra and Ors.

Case brief

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