Vishal S/O Shri Ramnath Satyal vs The Municipal Council Akot Thr. Its ... on 7 September, 2022

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Bombay High Court

Vishal S/O Shri Ramnath Satyal vs The Municipal Council Akot Thr. Its ... on 7 September, 2022

2. Heard Shri Nitin Lambat, learned counsel for the petitioner, Shri P.P. Deshmukh, learned counsel for respondent No.1, Shri V. Bhise, learned counsel for respondent No.2 and Smt. Kalyani Deshpande, Assistant Government Pleader for Respondent No.3.

3. The petitioner has challenged the order passed by the Chief Officer, Municipal Council, Akot, dated 12.8.2020 by which the respondent No.2 was proposed to be appointed as a "Safai Kamgar" in place of his uncle, namely, Rajesh Ramsingh Satyal. As per the contention of the petitioner Shri Rajesh Ramsingh Satyal, who is his real uncle was working with respondent No.1-Municipal Council, Akot as a "Safai Kamgar". Said Rajesh Ramsingh Satyal worked as "Safai Kamgar" for more than 24 years. Said Rajesh was survived with his wife Jyoti Rajesh and two children, namely, Swapnil and Vinit. Wife of Rajesh was working with Ghatanji Nagar Parishad as a "Safai Kamgar". As per the contention of the petitioner there were no cordial relations between the said Rajesh with other family members. Therefore, Rajesh left company of other family members and there was no contact between Rajesh and other family members. It is J-wp3615.20.odt 3/18 alleged by the petitioner that the wife of Rajesh, namely Jyoti deserted him and was living separately along with children at Ghatanji, District Amravati, whereas Rajesh was living in his brother's house at Akot. Said Rajesh was treating the petitioner as a son. As the petitioner is the nearest relative of said Rajesh being son of his brother, in the background that his wife and children left his company. The petitioner was dependent on Shri Rajesh since his childhood and said Rajesh had also love and affection for the petitioner. There was natural bonding between Rajesh and the petitioner. Said Rajesh had suffered paralysis attack in May 2019 and thereafter he was completely bed-ridden. The wife and children of Rajesh had not taken care of Rajesh and even not inquired about his health. The petitioner was taking care of Rajesh. Therefore, said Rajesh expressed his desire with the petitioner for voluntary retirement. Accordingly, he approached to the respondent No.1 along with petitioner and informed about his health condition. Accordingly, said Rajesh had filed an application with respondent No.1 for obtaining voluntary retirement. Rajesh was desiring to nominate the petitioner on his place in the employment as per various Government Resolutions which entitles Rajesh to nominate relative as an employee at his place. Subsequently, Rajesh had filed an application with J-wp3615.20.odt 4/18 respondent No.1 on 25.11.2019 but instead of nominating the petitioner for the employment he nominated one Seema Dinesh Mardane which was a surprise for the petitioner. It is the contention of the petitioner that Rajesh was completely bed-ridden and not in position to read and write the application and unable to stand on his feet. There is no occasion for him to submit the application dated 25.11.2009. There was no occasion for him to recommend the name of Seema Dinesh Mardane. On inquiry petitioner came to know that the Seema Mardane's husband is working with respondent No.1 as a Safai Kamgar. The officials of respondent No.1 by joining hands with husband of respondent No.2 made fabricated documents to grab the appointment by nominating the name of respondent No.2. In Fact, the respondent no.2 is not the blood relative and there is no reason for Rajesh to nominate her name. He further contended that the wife of Rajesh obtained some monetary benefits from respondent No.2 and gave her consent for the said nomination. In fact, petitioner is the nearest relative and entitled for the said benefit of the appointment only the legal heirs are entitled for the said employment. The order passed by the respondent No.1 approving the nomination of respondent No.2 made by said Rajesh is illegal and liable to be set aside. The said action of the respondent No.1 is illegal and deserves J-wp3615.20.odt 5/18 to be quashed.

4. In response to the notice the respondent No.1 opposed the writ petition by taking a stand that in view of various notifications issued on the recommendations of Lad-Page Committee employee is entitled to nominate the person who takes care of him in his place. It is further submitted by the respondent No.1 that employee Rajesh Ramsingh Satyal was the Safai Kamgar with Municipal Council under Class-IV category. He had taken the voluntary retirement by making application dated 25.11.2019 and recommended the name Seema Dinesh Mardane on his post along with all necessary documents which are produced. All necessary documents i.e. his own affidavit, affidavit of Seema Mardane, photo copy of Aadhar Card, caste certificate of Seema Mardane, employment certificate and school leaving certificate. Said Rajesh Satyal died on 10.1.2021. In the light of the above said fact respondent No.1 passed Resolution dated 6.5.2021 and recommendation was approved and also approved the name of respondent No.2 for the post of Safai Kamgar in the place of deceased Rajesh after following due process of law. On 18.2.2020 father of the petitioner made a application to the respondent No.1 to grant appointment to the legal heirs of Rajesh on the post of Safai Kamgar. Said application was rejected on 17.3.2020 on the ground that the J-wp3615.20.odt 6/18 application filed by the father of the petitioner is not fulfilling the criteria. The petitioner had also made application on 31.7.2020 for appointment with respondent No.1 as a nephew of deceased Rajesh. Said application was also rejected on 12.8.2020 on the ground that Rajesh had nominated the respondent No.2 and respondent No.2 had also submitted affidavit by giving undertaking that she will look after Rajesh Ramsingh Satyal. It is the contention of the respondents that all the legal procedures are followed by the respondent No.1 before approving the nomination therefore no cause of action arose to the petitioner to file the writ petition.

5. The respondent No.2 also appeared and filed her reply, by which she contended that deceased Rajesh was suffering from various ailments and he was not having any source of income. She was continuously paying the amount to the family of Rajesh through grahak seva and also paid amount through on-line through Maharashtra Bank. After the death of Rajesh his wife had received the meager pension therefore she had also sent some amount to the wife of Rajesh. As Rajesh was suffering from paralysis and respondent No.2 had taken care of him therefore he had nominated her for the said post in his place. Writ Petition has no merit and liable to be dismissed.

J-wp3615.20.odt 7/18

6. Learned counsel Shri Nitin Lambat for the petitioner submitted that the petitioner is the nearest relative of said Rajesh. Rajesh voluntarily retired on medical ground. Wife of Rajesh was already in the employment and working as a Sweeper. Said Rajesh nominated respondent No.2 who is not the relative. On the contrary, petitioner is the nephew of Rajesh. Petitioner is the nearest relative and therefore in view of Resolution passed by the Government is entitled for the said appointment. However, respondent No.1 wrongly considered respondent No.2 for the said post and wrongly passed the order dated 12.8.2020. He placed his reliance on Government Resolution issued by the Social Welfare Department. As per the said Government Resolution earlier Resolution dated 10.11.2015 was modified. He submitted that as per the said Resolution modified resolution was passed to the effect that;

ß 1½ okfYedh] esgsrj lektkyk lkekftd] vkfFkZd laj{k.k ns.;klkBh lQkbZ dkexkjkaP;k fu;qDrhckcr ykM lferhus f'kQkjl dsysyh okjlk i/nr iq<s pkyw Bso.;kr ;koh-

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3½ lQkbZ deZpkjh Eg.kwu lsokfuo`Rr >kysY;k fdaok gks.kk&;k vFkok LosPNkfuo`Rrh ?ks.kk&;k fdaok lsosr vlrkuk fu/ku ikoysY;k vuqlqfpr tkrhe/khy brj lQkbZ deZpk&;kaP;k okjl fdaok ukrsokbZd ;kal J-wp3615.20.odt 8/18 lnj ;kstuspk ykHk ns.;kr ;kok-

4½ lnjgw fu.kZ; jkT;krhy loZ foHkkxkrhy lQkbZ dkexkjkaP;k okjlkauk ykxw jkgrhy-Þ He also relied on subsequent resolution issued by the General Administration Department dated 19th April 2018 which reads as :

ßv½ ykM o ikxs lferhus f'kQkjl dsY;kuqlkj 'kkldh;@fue'kkldh; eaMGs@egkeaaMGs@ Lok;Rr laLFkk@egkuxjikfydk@ uxjikfydk@ [kktxhlaLFkk rlsp dkj[kkus bR;knhP;k vkLFkkiusoj esgrj o okfYedh lektkP;k mesnokjkaph uksdjHkjrh djrkuk R;kP;k okjlkl@toGP;k ukrsokbZdkl izk/kkU; ns.;kr ;srs rs ;kiq<sgh pkyw Bsokos] ;kckcr vko';drk HkklY;kl lsokizos'kkrhy fu;e f'kfFky d#u R;kaph vaeyctko.kh dj.;kr ;koh-

c½ lQkbZxkj deZpk&;kP;k okjlkl@toGP;k ukrsokbZdkl uksdjh nsrkuk 'kkldh;@fue'kkldh; dk;kZy;krhy loZ fu;qDrh izkf/kdk&;kauh R;kaP;kdMhy ts"Brk ;knhrhy dsoG esgrj o okfYedh ;k tkrhaP;k mesnokjkaph] R;kaP;k tkrhpk fopkj d#u uOgs] rj R;kaph 'kS{kf.kd vgZrk fopkjkr ?ksmu R;k vk/kkjs R;kaph use.kwd dj.;kr ;sbZy] ;klaca/kh fo'ks"k [kcjnkjh ?ks.;kr ;koh-Þ

7. Learned counsel Shri Lambat submitted that respondent No.2 is no way related to said Rajesh. Said employment is purchased by the respondent No.2 and therefore the order passed by the respondent No.1 considering her eligibility for the said employment is illegal and liable to be set aside.

8. On the other hand, learned counsel Shri P.P. Deshmukh submitted that employee, namely, Rajesh who was working as a Safai J-wp3615.20.odt 9/18 Kamgar with respondent No.1 had taken voluntary retirement by submitting application dated 25.11.2019. In accordance with the notification dated 26th February, 2014 he could have nominated his relatives or any other person who undertakes to take care of the said employee. Accordingly, he recommended the name of respondent No.2 Seema Dinesh Mardane along with the relevant documents. On perusal of the same the respondent No.1 passed Resolution dated 6.5.2021 and approved the name of respondent No.2. In the meantime, said employee Rajesh died on 10.1.2021. He submitted that name of respondent No.2 was approved after following due process of law. Learned counsel also relied upon the decision in Writ Petition No.6155/2014 by which this Court had observed that in the matter of appointments to the post of Sweepers and Safai Kamgars in Government, semi-Government undertakings and Local Bodies like the Corporation the State Government was to reconsider its policy decision that was evolved in view of the report of the Lad Committee. A direction was issued therein to make a statement regarding such decision taken on the re-consideration of its policy. This Court had directed a statement to be made on behalf of State Government by taking necessary instructions from the Chief Secretary, State of Maharashtra, Principal Secretary, Urban Development Department, J-wp3615.20.odt 10/18 The Director of Municipal Administration. Thereafter the Government Resolution dated 10.11.2015 was issued by the Social Welfare Department. He submitted that as per the said Resolution decision was taken to give the appointment in the light of the recommendations made by Lad-Page Committee. This Resolution was modified by passing subsequent Resolution dated 11th March, 2016. As per clause (2) of the resolution dated 11 th March, 2016 the decision taken by the Resolution dated 26th February, 2014 was maintained. Hence, writ petition deserves to be dismissed.

9. Learned counsel Shri V.B. Bhise, for the respondent No.2 submitted that the respondent No.2 had taken care of Rajesh Satyal, who was suffering from various ailments. She incurred the expenses towards the medical treatment and day to day expenses of said Rajesh. Learned counsel also submitted that the detail chart mentioned in the reply showed that respondent No.2 incurred expenses towards the ailing employee Rajesh and after his death she also supported the widow of deceased Rajesh who received meager pension. Thus, as per the undertaking given by respondent No.2, the respondent No.2 had taken care of not only Rajesh but his family members also. In accordance with the Government Resolutions the name of respondent No.2 was approved, no illegality committed by J-wp3615.20.odt 11/18 the respondent No.1. Moreover, widow of Rajesh and his children had no objection for the appointment of respondent No.2. Thus, with the consent of the family members of Rajesh the name of respondent No.2 was approved. Hence, no interference is called for.

10. Heard both sides. Perused the record. It is not in dispute that the petitioner Vishal Ramnath Satyal is the nephew of Rajesh Ramsingh Satyal, who was working as a "Safai Kamgar" with respondent No.1. It is also not in dispute that said employee Rajesh Satyal had suffered a paralysis attack and was bed-ridden. Therefore, he obtained voluntary retirement by filing application dated 25.11.2019. It is also not disputed that while filing application for voluntary retirement he nominated respondent No.2 for employment at his place. The application filed by said Rajesh Ramsingh Satyal is on record. It is also not disputed that said Rajesh had filed the application for voluntary retirement by nominating respondent No.2 in the light of various Resolutions passed by the Government in view of the recommendations by Lad-Page Committee. Now, the question is whether the petitioner is entitled for the said appointment, though there is no nomination or recommendation in his favour by the deceased employee. Admittedly, deceased Rajesh, who is the uncle of the petitioner died due to paralysis on 10.1.2021. Entire issue J-wp3615.20.odt 12/18 revolves around various Government Resolutions issued on various dates on the recommendations of Lad-Page Committee. The first Resolution was issued on 21 October, 2011, wherein decision was taken that if an employee who was working as Safai Kamgar in Municipal Council or Municipal Corporation obtains voluntary retirement or retires on attaining the age of superannuation or if he is declared unfit then the relatives in the category of husband/wife, daughter/daughter-in- law, unmarried daughter, widow/divorce daughter, widow/divorce sister and in absence of above the nominated person who takes written responsibility of the employee is entitled to claim the appointment in the place of said employee. Another Resolution was issued by the Social Welfare Department on 26th February, 2014, which says that;

ß 1½ mijksDr 'kklu ifji=d fn- 21 vkWDVkscj] 2011 e/khy ¼1½¼v½ 6 e/;s ßojhy 1 rs 5 ;sFkhy dks.khgh okjl miyC/k ulY;kl vFkok lnj okjlkaiSdh dks.khgh lQkbZps dke dj.;kl r;kj ulY;kl laca/khr lQkbZ dkexkjkpk lkaHkkG dj.;kph ys[kh geh ?ks.kkjh dks.khgh ukefunsZf'kr O;DrhÞ v'kh lq/kkj.kk ;k}okjs dj.;kr ;sr vkgs-

2½ lsokfuo`Rr >kysY;k lQkbZ dkexkjkP;k okjlk gDdkP;k izdj.kh dk;Zokgh gksowu fu;qDrh feG.;kiwohZ laca/khr lQkbZ dkexkjkl okjl@ ukefunsZ'kuke/;s cny djko;kpk vlY;kl R;k dkexkjkl okjl@ ukefunsZ'kuke/;s cny dj.;kpk vf/kdkj jkghy-

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11. It further appears that vide Writ Petition No.6155/2014 the petitioner in the said writ petition challenged the seniority list published by Nagpur Municipal Corporation for granting appointment to the dependents of the erstwhile Sweepers and Safai Kamgars of the said Corporation. The said petition was filed to seek a direction to the respondent Nagpur Municipal Corporation to include the names of the petitioners in the said seniority list. The petitioners in that petition were the dependents of erstwhile Sweepers and Safai Kamgars who were working in the Nagpur Municipal Corporation. After hearing both the parties this Court observed that the issue involved in that writ petition could not be decided in exercise of writ jurisdiction as several disputed questions of facts arose for determination. Some of the petitioners claimed to be the grand-daughters and grand daughters-in-law of erstwhile Safai Kamgars. This Court held that it would not be proper to consider the disputed documents in exercise of the writ jurisdiction to consider whether all the petitioners are eligible for appointment and in the light of said facts the learned Government Pleader had a made statement that the State Government would reconsider the policy decision evolved in view of the Lad-Page J-wp3615.20.odt 14/18 Committee report in the changed scenario. After the decision of this Court in the abovesaid writ petition, the Social Welfare Department issued another Resolution dated 10th November, 2015 by which decision was taken in the following way. The relevant portion of the said Government Resolution is reproduced herewith.

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i) irh&iRuh ii) eqyxk@lqu iii) vfookghr eqyxh iv) fo/kok@?kVLQksfVr eqyxh v) fo/kok@?kVLQksfVr cgh.k vi) ojhyiSdh dks.khgh okjl miyC/k ulY;kl vFkok lnj okjlkaiSdh lQkbZps dke dj.;kl r;kj ulY;kl laca/khr lQkbZ dkexkjkapk lkaHkkG dj.;kph ys[kh geh ?ks.kkjh dks.krhgh ukefunsZf'kr O;Drh-

c½ lQkbZ deZpk&;kaP;k dqVaqckrhy irh@iRuh fdaok eqyxk 'kkldh;@fue'kkldh; fdaok LFkkfud LojkT; laLFksP;k lsosr vlY;kl okjlk gDdkP;k fu;ekl ck/kk ;s.kkj ukgh-

d½ okjlk gDdkl ik= vl.kk&;k O;DrhaiSdh dks.kkgh ,dkl fuo`Rr@LosPNk fuo`Rr@oS|dh; n`"V;k vik= BjfoysY;k dkexkjkP;k@ deZpk&;kaP;k f'kQkj'khuqlkj uksdjh gDd |kok] ek= e`r dkexkjkP;k@ deZpk&;kaP;k ckcrhr ojhy ¼v½ e/khy ik= O;DrhaP;k la;qDr laerhi=kus R;kiSdh ,dkl uksdjhl ?;kos-

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b½ lQkbZ dkexkj uksdjh djhr vlrkuk R;kyk prqFkZJs.khrp inksUurh feGkY;kl okjlk gDdkP;k fu;ekl ck/kk ;s.kkjk ukgh-

J-wp3615.20.odt 15/18

bZ½ okjlk gDdkph izdj.ks 30 fnolkaP;k vkr fudkyh dk<.;kr ;kohr-

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12. It is further apparent that said Resolution dated 10.11.2015 was modified by Social Welfare Department by passing another Resolution dated 11th March, 2016. As per clause (2) of the Government Resolution dated 11th March, 2016 the recommendation made by the Lad-Page Committee and approved by the Social Welfare Department by passing Resolution dated 26th February, 2014 was maintained. Subsequent Resolution was also issued on 19 th April, 2018.

13. In accordance with the Resolution the employee who is working in the Municipal Council or Municipal Corporation if obtains J-wp3615.20.odt 16/18 voluntarily retires or retires from the service or is declared medically unfit, he can nominate the person who is his relative or any third person who undertakes to take care of the said employee. In the abovesaid circumstances in the present case the employee Rajesh Satyal admittedly filed an application on 25.11.2019 for voluntary retirement on the medical ground and nominated respondent No.2 Seema Dinesh Mardane. The respondents No.1 considered the various documents filed by said Seema Mardane and her affidavit. She had undertaken that she would take care of said Rajesh Satyal and filed affidavit in support of the same. It is further apparent from the record that not only she had undertaken that she would take care of said Rajesh Satyal, but she has also filed on record chart showing that she had not only incurred expenses towards the medical treatment of said Rajesh Satyal but also paid some amounts to the widow of said Rajesh Satyal as widow was getting meager pension. In support of her said contention she filed on record bank statement which is sufficient to show that various amounts was transferred to the widow of said Rajesh Satyal. It further the matter of record that the wife of Rajesh Satyal filed application on 20.10.2021 that she had no objection to appoint respondent No.2 as a Safai Kamgar in place of her husband. Moreover, she had requested to consider the J-wp3615.20.odt 17/18 nomination submitted by her husband. As there was no objection from the legal heirs of Rajesh and respondent No.2 was complying all the eligibility criteria the respondent No.1 had approved her name to be appointed as "Safai Kamgar".

14. Besides above legal position, none of the Resolutions referred entitle the present petitioner to claim the said appointment. As per the Resolution dated 21st October, 2011 the list of eligible persons is mentioned in the said Resolution. As per the said list husband/wife, daughter/daughter in law, unmarried daughter, widow/divorce daughter, widow/divorce sister and in absence of abovesaid person if any relative who undertakes to take care of the ailing employee or retired employee or nominated person nominated by the said employee are entitled for the said post. Admittedly, petitioner is the nephew who is not added in the list of eligible person for the said appointment. As petitioner who is the nephew is not eligible as per the Government Resolution dated 11th October, 2011 and various subsequent Resolutions referred above, therefore, the application of the petitioner was rightly rejected by the respondent No.1. The action of rejecting the application of the petitioner and considering the respondent No.2 in the place of deceased employee Rajesh is in accordance with law. No illegality is committed by the J-wp3615.20.odt 18/18 respondent No.1. Hence, no interference is called for. In the result, writ petition deserves to be dismissed. Therefore, we proceed to pass following.

ORDER

(i) The Writ Petition is dismissed. Rule is discharged with no order as to costs.

(Urmila Joshi-Phalke, J.) (A.S.Chandurkar, J.) okMksns Signed By:DEVENDRA WASUDEORAO WADODE PA to the Hon'ble Judge Signing Date:07.09.2022 14:52

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