Partly allowed

The Chief Executive Officer Zp Parbhani v. Sangita Balaji Dawre and Others

Bombay HC1 Mar 2017CA/12463/2016

Case brief

AI extract

What is this about?

Review application allowed exceeding the Writ Petition order quashing hospital authority's rejection of compassionate appointment claim due to ignored clause in subsequent Government Resolution regarding third child disqualification.

What did the court decide?

Order dated 1st March 2016 recalled; Review Application allowed; Writ Petition restored to original file for appropriate bench.

The Chief Executive Officer Zp Parbhani Vs… — Pension and Retirement Benefits | Bombay HC (2017)

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12463.2016CA+.odt

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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CIVIL APPLICATION NO.12463 OF 2016
IN

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CIVIL APPILCATION(REVIEW) ST.NO.25984 OF 2016
IN
WRIT PETITION NO.9302 OF 2015

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The Chief Executive Officer
Zilla Parishad, Parbhani

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..Petitioner/
 ori.resp.no.2

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VERSUS

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1. Sangita Balaji Daware Age 33 yrs, Occ Nil r/o. Sant Goroba society, Nanded road, Latur, Tq. and Dist. Latur.

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2. The State of Maharashtra Through its Secretary Education Dept. Mantralaya, Mumbai.

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3. The Education Officer (Primary) Zilla Parishad, Parbhani

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4. The Headmaster Zilla Parishad Primary School Dighol Centre, Narwadi Tq. Sonpeth Dist. Parbhani

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 ..Resp/R-1/Orig
 petitioner
 R-2 to R-4/Ori

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 resp nos.1,3&4

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WITH

CIVIL APPILCATION(REVIEW) ST.NO.25984 OF 2016 IN

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WRIT PETITION NO.9302 OF 2015

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The Chief Executive Officer
Zilla Parishad, Parbhani

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..Petitioner/
 ori.resp.no.2

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VERSUS

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1. Sangita Balaji Daware Age 33 yrs, Occ Nil r/o. Sant Goroba society, Nanded road, Latur, Tq. and Dist. Latur.

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2. The State of Maharashtra Through its Secretary Education Dept. Mantralaya, Mumbai.

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3. The Education Officer (Primary) Zilla Parishad, Parbhani

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4. The Headmaster Zilla Parishad Primary School Dighol Centre, Narwadi Tq. Sonpeth Dist. Parbhani

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 ..Resp/R-1/Orig
 petitioner
 R-2 to R-4/Ori
 resp nos.1,3&4
...
Mr.Vivek Bhavthankar, Advocate for the
applicant
Mr.T.M.Venjane, Advocate for respondent no.1
Mr.S.G.Karlekar, AGP for Respondent Nos.2 to
4 / State

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...

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CORAM: S.S.SHINDE &

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K.K.SONAWANE,JJ.

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Reserved on : 21.02.2017
 Pronounced on : 01.03.2017

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ORDER: (Per S.S.Shinde, J.):

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1.Heard the learned counsel appearing
for the applicant. Civil Application No.
12463/2016 is filed praying for condonation
of delay.

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2.The prayer for condonation of delay
is vehemently opposed by the learned counsel
appearing for the non-applicants i.e.
original petitioner. However, for the reasons
stated in the application, the application
for condonation of delay is allowed and the
same stands disposed of.

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3.The Review Application is filed by
the applicant-respondent no.2, seeking review
of the judgment and order dated 1st March,
2016 passed by this Court in Writ Petition

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No.9302/2015. The learned counsel appearing

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for the applicant (respondent no.2) submits

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that, this Court was pleased to allow the
Writ Petition, by the judgment and order
dated 1st March, 2016, observing that there is

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no mention of provision of disqualification
for claiming compassionate appointment, if

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there is third child born to the deceased
employees i.e. petitioner, after cut of date
i.e. after 31stDecember, 2001 in the

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Government Resolution dated 22nd August, 2005.
It is submitted that in fact the Government

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Resolution dated 28th March, 2001, issued by

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the General Administration Department,
Government of Maharashtra speaks about
disqualification for getting compassionate

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appointment to the legal heirs of deceased

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employee, who is having third child after cut

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of date i.e. 31.12.2001. It is submitted that

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by way of issuing Government Resolution dated
22ndAugust,2005,bytheGeneral

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Administration Department, Government of
Maharashtra, has made certain additions to
existing provisions as per clause no.2 in the
Government Resolution dated 28th March, 2001.
In view of the said addition in the
Government Resolution issued on 22nd August,
2005, the family members of the Government
employee in Grade C & D, who are permanently
disabled to perform duty due to Cancer,
Paralysis and accident are not entitled to

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get compassionate appointment. In view of
addition of clause 2 (2) candidate below the
age of 40 years would be qualified to claim

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compassionate appointment and after crossing
40 years of age, his name will be deleted
from waiting list. As per the clause 2 (3) of

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the said Government Resolution, the
application for compassionate appointment can
be filed within one year from the death of
employee.

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4.It is further submitted that only

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afore-mentioned changes have been made in
addition to earlier scheme of compassionate
appointment laid in the Government Resolution
dated 28th March, 2001. However, this Court
while passing the impugned order has not
considered the provisions of clause 2 and
clause 3 of the Government Resolution dated

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22nd August, 2005, and arrived at erroneous
conclusion that the condition of cut of date
of third child of the deceased employee is

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not appearing in the Government Resolution
dated 22ndAugust, 2005. Therefore, the
learned counsel appearing for the applicant

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submits that there is error apparent on the
face of record inasmuch as the Government
Resolution dated 28th March, 2001, is not
superseded by the Government Resolution dated

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22nd August, 2005, and the said Resolution was
in continuation of the earlier scheme for the
appointment on compassionate ground laid down
in Government Resolution dated 28th March,

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2001. The learned counsel invites our
attention to both the Government Resolutions
and submits that the Review Application
deserves to be allowed.

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5.On the other hand, learned counsel

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Mr.T.M.Venjane, appearing for the original
petitioner (respondent no.1) submits that,
while considering the prayer of the
petitioner in Writ Petition this Court has

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not only considered the afore-mentioned
Government Resolutions, but even considered
the relevant provisions of the Maharashtra
Civil Services Rules. He submits that this

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Court has granted discretionary and equitable
relief, and therefore, relying upon the
pleadings in the Petition and grounds therein
he submits that the Review Application may be
rejected.

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6.We have considered rival submissions
of the learned counsel appearing for the

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parties. With their able assistance, we have
carefully perused the contents of both the
Government Resolutions mentioned herein
above. It appears that while deciding the
Writ Petition on merits, it was argued by the
learned counsel appearing for the petitioner

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that the General Administration Department, Government of Maharashtra has issued Government Resolution dated 22 nd August, 2005 and earlier Government Resolution dated 28 th

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March, 2001, has undergone review. It was submitted that grounds mentioned by respondent no.2 i.e. third child born to the deceased employee, after cut of date i.e. after 31 st December, 2001, is not appearing in the Government Resolution dated 22 nd August, 2005, though the said provision was in the Government Resolution dated 28^th March, 2001. Therefore, relying upon the aforesaid arguments, this Court quashed and set aside the order passed by respondent no.2,

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rejecting the application for appointment on
compassionate ground.

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7.It appears that while disposing of
the Writ Petition, this Court held thus:

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5) Upon careful perusal of the Government Resolution dated 22 nd

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August, 2005, it appears that, same was issued after taking review of the provisions of the Government Resolution dated 28 th March, 2001. It appears that, reliance has been

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placed by the Deputy Chief Executive Officer, Zilla Parishad, Parbhani on Government Resolution dated 28 th

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March, 2001, while rejecting the

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claim of the petitioner. As already
observed, same Government Resolution

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has been reviewed and in the said Government Resolution dated 22 nd

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August, 2005, condition that, the

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legal heirs of the employee who has
given birth to third child after
3.12.2001, are not eligible /
entitledforappointmenton
compassionate ground, has not been
mentioned...

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8. Upon careful perusal of the Government Resolution dated 22 nd August, 2005, it appears that, the said Government Resolution though takes review of the earlier

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Resolutions including the Government Resolution dated 28 th March, 2001, nevertheless it was issued so as to make improvements and additional provisions and it

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was not in supersession of the Government Resolution dated 28 th March, 2001, as it is apparent from clause 3 of the Government Resolution dated 22 nd August, 2005, which reads as under:

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9.In that view of the matter, we are
of the view that, while passing the order
dated 1st March, 2016 in Writ Petition No.
9302/2015, this Court did not notice afore-
mentioned clause in the Government Resolution

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dated 22nd August, 2005. In that view of the
matter, the case is made out for recalling
the order dated 1st March, 2016 passed by this
Court in Writ Petition No.9302 of 2015.
Accordingly, the order dated 1st March, 2016
stands recalled. Review Application is
allowed and same stands disposed of
accordingly.

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10.Writ Petition No.9302/2015 is

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restored to its original file. Registry to

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place the Writ Petition before appropriate
bench for hearing, the same pertaining to the
year of 2015.

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11.We make it clear that since we have
restored Writ Petition No.9302/2015 to its
original file, all the contentions on merits
including interpretation of the provisions of
both the Government Resolutions are left open

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to be agitated by the parties.

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 [K.K.SONAWANE] [S.S.SHINDE]
 JUDGE JUDGE

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DDC

The Chief Executive Officer Zp Parbhani v. Sangita Balaji Dawre and Others

Case brief

What is this about?

What did the court decide?

The Chief Executive Officer Zp Parbhani v. Sangita Balaji Dawre and Others

Case brief

What is this about?

What did the court decide?

What the court decided

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