LAWS(BOM)-2019-12-162

MAHEK Vs. STATE OF MAHARASHTRA

Decided On December 02, 2019
Mahek Appellant
V/S
STATE OF MAHARASHTRA Respondents

JUDGEMENT

(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 pay- scale 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 and 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 post cannot be filled by compassionate appointment. In clear terms, it is stated that the petitioner is not entitled to get appointment on compassionate ground.

(3.) Further affidavit in reply has been filed by Gangadhar Shankarrao Pente, Chief Officer, Municipal Council, Hadgaon, Tq. Hadgaon District Nanded on behalf of Respondent No.5, reiterating almost the same contentions as raised on behalf of Respondent Nos. 3 and 4.