Dismissed

Mangalabai Rajesh Pradhan v. the State of Maharashtra and Another

Bombay HC17 Jul 2019WP/6413/2015

Case brief

AI extract

What is this about?

The High Court of Judicature at Bombay dismissed a writ petition challenging a rejection of compassionate ground appointment for a petitioner whose deceased husband worked for a school board. The court held that rules barring benefits for third children born after a cut-off date are valid and that the claim was barred by inordinate delay.

What did the court decide?

The writ petition was dismissed as meritless.

Mangalabai Rajesh Pradhan Vs the State of… — Pension and Retirement Benefits | Bombay HC (2019)

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6413.15wp

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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WRIT PETITION NO. 6413 OF 2015

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Mangalabai W/o Rajesh Pradhan
Age 32 years, Occu.Household,
R/o Jalna at present Sailu,
C/o Maruti Ingle,
Railway Quarter, Sailu, Tq.Sailu,
District:Parbhani,PETITIONER

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VERSUS

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1. The State of Maharashtra Through General Administration Dept. Mantralaya, Mumbai-32

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2. The Chief Executive Officer, Zilla Parishad, Jalna RESPONDENTS

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Mrs M. A. Kulkarni, Advocate for the petitioner;
Mr V. S. Badakh, A.G.P. for respondent No.1;
Mr S. S. Tope, Advocate for respondent No.2

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CORAM : PRASANNA B. VARALE &
R.G. AVACHAT, JJ.

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DATED :17th JULY, 2019

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ORAL ORDER:

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Heard Mrs. Kulkarni, appearing for the
petitioner, learned A.G.P. for respondent No.1 and

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Mr Tope, learned Counsel for respondent No.2.

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2. With consent of the parties, the petition is
taken up for hearing/disposal.

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communication/order dated 31st December, 2019, whereby
the claim of the petitioner for grant of appointment on
compassionate ground in place of her deceased husband was
turned down.

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4. The facts giving rise to the present petition
are summarized as below:

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Petitioner's husband Rajesh Sopanrao Pradhan was

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appointed on Class-IV post in Primary Health Center, at
village Raje Takali, Tq.Ghansawangi, District Jalna.
Within a short span of service, hardly a year, the

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husband of petitioner expired on 8th June, 2007.

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5. The petitioner submitted an application for
grant of appointment on compassionate ground and on
receiving the application by office of respondent No.2
called upon the petitioner to submit certain documents.
On 17th April, 2008, the petitioner submitted the
documents to respondent No.2.

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6. On perusal of these documents, it revealed that

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the petitioner is having three issues and her third issue
was born after 31st December, 2001. Respondent No. 2 in
communication dated 31st December, 2013 while making
reference to the Government Resolution dated 28th March,
2001 informed the petitioner that as the third issue is
begotten after cut off date i.e. 31st December, 2001, the
petitioner would not be entitled to seek any benefit of
appointment on compassionate ground.

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7. The petitioner then submitted a representation

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to respondent No.2 on 6th February, 2014. It was

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submitted in the representation that the petitioner
though had a third child after the cut off date, same was

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given in adoption to one Mr. Sakharam Sonaji Rakshe by
her husband, as such, there are only two children. On
these submissions, the claim for appointment on

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compassionate ground was reiterated.

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8. As there was no consideration of this

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representation, the petitioner approached this Court by

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filing the present writ petition on 29th January, 2015.

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9. The entire thrust of the submission of Mrs.

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Kulkarni, learned Counsel appearing for the petitioner

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was on the ground that, reference is made in the
communication to the Government Resolution dated 28th
March, 2001 and this Government Resolution applies only
to the Government employees. It was also the submission

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of Mrs. Kulkarni, learned Counsel that there is no such

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communication to the authorities of Zilla Parishad.
Mrs. Kulkarni, learned Counsel thus submitted before this
Court that the order passed by respondent No.2 - Chief
Executive Officer, Zilla Parishad, Jalna impugned in the
petition is unsustainable.

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10. Per contra, Mr Tope, learned Counsel appearing

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for respondent No.2 vehemently opposes the submissions of
the Counsel for the petitioner and supports the order
impugned in the petition. Mr Tope, learned Counsel
firstly submitted that the petitioner is not disputing
the fact of having third child after cut off date and the
only ground raised before respondent No.2 in the
representation was of having two issues. Mr. Tope,
learned Counsel submitted that in the representation, the
petitioner states that there are only two children to the
petitioner, whereas, in the documents submitted before
the authority, the petitioner admitted that she is having
three children and third child was begotten after cut off

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( 6 ) 6413.15wp

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date i.e. 31st December, 2001. Mr. Tope, learned

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Counsel then submitted that the petitioner was also
called upon for personal hearing on 18th March, 2014 on
the aspect of submission of the petitioner that third
child was given in adoption by way of adoption deed.
Thus, respondent No.2 provided every opportunity to the
petitioner including opportunity of hearing.

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11.Mr Tope, learned Counsel by inviting our

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attention to the copy of Government Resolution dated 28th
March, 2001, placed on record at Annexure R-1 along with
affidavit-in-reply submitted that this policy of the
State Government was not restricted only to the
Government employees but every department was made aware
of this policy. He then invited our attention to the
reference made in the Government Resolution i.e. copy of
the Government Resolution being provided to Chief
Executive Officers of Zilla Parishad in the State of
Maharashtra, all the departments in the State including

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General Administration Department. Thus, it was the
submission of Mr Tope, learned Counsel that the State
Government which is overall controlling authority of all
the departments working at various levels and at various
places in the State of Maharashtra apprised the policy of
the State Government in Government Resolution dated 28th
March, 2001 in general and in particularly class (e).

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12.Mr Tope, learned Counsel then invited our
attention to the judgment of the Division Bench of this
Court in the matter of Suleman Abbas Chiragali Hydary vs
Pramod Nandlal Yadav and others, reported in 2008(1)
Bom.C.R. 887 to submit that, while dealing with the issue
of disqualification on the ground of third child under
Maharashtra Municipal Councils, Nagar Panchayats and
Industrial Townships Act, 1965, the Division Bench
specifically dealt with the submission that the policy
may not be extended to adopted child. Perusal of the

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judgment of this Court in the matter of Suleman Abbas
Chiragali, cited supra, shows that the Division Bench
referred to the Apex Court judgment in the matter of
Javed Vs. State of Haryana, reported in 2003(8) S.C.C.
369.

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13.It would be useful for our purposes to refer to

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the observations made in paragraph-5 in the above
referred judgment, which read thus:

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"5. ............In this judgment persons having more than two living children are held to be clearly distinguishable from persons having not more than two living children. The disqualification enacted by the provision was to achieve the objective by creating a disincentive. The classification has been held not to suffer from any arbitrariness. Hon'ble Apex Court further held that the number of children, viz., two is based on legislative wisdom and it could have been more or less. The number

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( 9 ) 6413.15wp

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is declared to be a matter of policy decision which is not open to judicial scrutiny. Section 175(1)(q) disqualifying person with more than 2 children is found not violating any fundamental right or unreasonable as right to contest an election is neither a fundamental right nor a common law right but a right conferred by a Statute and obviously subject to qualifications and disqualifications enacted by legislation. For present LPA following fundings about giving such a child in adoption in paragraph 62 are important.

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62. It was submitted that the enactment has created serious problems in the rural population as couples desirous of contesting an election but having living children more than two, are feeling compelled to give them in adoption. Subject to what has already been stated herein above, we may add that disqualification is attracted no sooner a third child is born and is living after two living children. Merely because the couple has parted with one child by giving the

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child away in adoption, the disqualification does not come to an end. While interpreting the scope of disqualification we shall have to keep in view the evil sought to be cured and purpose sought to be achieved by the enactment. If the person sought to be disqualified is responsible for or has given birth to children more than two who are living then merely because one or more of them are given in adoption the disqualification is not wiped out. "

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14.Mr Tope, learned Counsel then submitted that the
object of providing appointment on compassionate ground
is to give a solace to the family suffering from the
financial distress and hardship due to the death of an
earning member and this object can be achieved only if a
person in need of such an appointment approaches within a
reasonable time, so as to come out of the situation of
the financial distress. A delay in approaching the
authority would only lead to an assumption that the

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person is not genuinely interested to seek an

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appointment to meet financial constrains.

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15.In support of this submission, Mr Tope, learned
Counsel invited out attention to the Apex Court judgment
in the matter of MGB Gramin Bank Vs. Chakrawarti Singh
reported in 2013 A.I.R. (SC) 3365. It would be useful
for our purposes to refer to the observations made in
paragraph - 5 in the above referred judgment of the Apex
Court.

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"5. Every appointment to public office must be made by strictly adhering to the mandatory requirements of Articles 14 and 16 of the Constitution. An exception by providing employment on compassionate grounds has been carved out in order to remove the financial constraints on the bereaved family, which has lost its bread-earner. Mere death of a Government employee in harness does not entitle the family to claim compassionate employment. The Competent Authority has to examine the financial condition of the family

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of the deceased employee and it is only if it is satisfied that without providing employment, the family will not be able to meet the crisis, that a job is to be offered to the eligible member of the family. More so, the person claiming such appointment must possess required eligibility for the post. The consistent view that has been taken by the Court is that compassionate employment cannot be claimed as a matter of right, as it is not a vested right.

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The Court should not stretch the provision by liberal interpretation beyond permissible limits on humanitarian grounds.

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Such appointment should, therefore, be provided immediately to redeem the family in distress. It is improper to keep such a case pending for years."

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16. Mr.Tope, learned Counsel also relied on the

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judgment of the Apex Court in the matter of Umesh Kumar
Nagpal Vs. State of Haryana, reported in 1994 (4) SCC
138. Paragraph-6 of the above referred judgment reads

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( 13 ) 6413.15wp

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thus :

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"6. FOR these very reasons, the compassionate employment cannot be granted after a lapse of a reasonable period which must be specified in the rules. The consideration for such employment is not a vested right which can be exercised at any time in future. The object being to enable the family to get over the financial crisis which it faces at the time of the death of the sole breadwinner, the compassionate employment cannot be claimed and offered whatever the lapse of time and after the crisis is over."

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17.The submission of Mr Tope, learned Counsel was
on the factual backdrop that the husband of the
petitioner expired on 8th June, 2007 and the petitioner
though submitted the application sometime in the year
2008, was waiting for considerable length of period i.e.
till 2012 and had not approached the authority within a
span of these 4-5 years and approached this Court only

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after communication dated 31st December, 2013, that too

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challenging this communication after two years i.e. in
the year 2015.

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18.Considering above referred facts, we find
considerable merit in the submissions of Mr Tope,
learned Counsel appearing for respondent No.2. We see no
reason to show any indulgence in the order passed by
respondent No.2 impugned in the present petition. The
petition, thus, being meritless deserves to be dismissed
and is accordingly dismissed.

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[R.G. AVACHAT, J.] [PRASANNA B. VARALE,J.]

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Tupe

Mangalabai Rajesh Pradhan v. the State of Maharashtra and Another

Case brief

What is this about?

What did the court decide?

Mangalabai Rajesh Pradhan v. the State of Maharashtra and Another

Case brief

What is this about?

What did the court decide?

What the court decided

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