Bombay High Court
Rahul S/O Shravan Todasam vs Nagar Parishad, Through Its Chief ... on 23 June, 2022
Author: A.S.Chandurkar
Bench: A.S.Chandurkar
J-wp585.18.odt 1/15
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION No.585 OF 2018
Rahul s/o. Shravan Todasam,
Aged about 38 years,
Occupation : Service,
R/o. Digras, Jeo Nagar, Yavatmal. : PETITIONER
...VERSUS...
Nagar Parishad, Digras,
Through its Chief Officer,
District Yavatmal. : RESPONDENT
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Shri N.R. Saboo, Advocate for Petitioner.
Shri Pravin Deshmukh, Advocate for Respondent.
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CORAM : A.S.Chandurkar And Urmila Joshi-Phalke, JJ.
Dated : 23rd June, 2022.
ORAL JUDGMENT : (Per : Urmila Joshi-Phalke, J.)
1. Heard learned counsel for the petitioner and the respondent.
2. Rule. Rule made returnable forthwith.
3. By this petition petitioner had challenged the order ::: Uploaded on - 22/07/2022 ::: Downloaded on - 29/12/2022 04:10:12 ::: J-wp585.18.odt 2/15 of respondent-Chief Officer, Nagar Parishad, Digras dated 29.1.2018 by which petitioner was terminated from the service.
4. Father of the petitioner had preferred application on 17.4.1999 for retirement as he suffered from Paralysis. Accordingly, retirement of his father was approved on medical ground on 4.11.1999. Entire family of the petitioner was dependent on the earning of Shravan Todasam i.e. father of the petitioner. The petitioner applied for employment on compassionate ground vide application dated 15.12.1999. The respondent-Nagar Parishad, Digras decided to forward the said proposal to the Collector. Accordingly, said proposal was forwarded to the Collector, Yavatmal, but the Collector, Yavatmal vide letter No.175/2000, dated 29.7.2000 rejected the said proposal as father of the petitioner had completed 55 years of age. As per the contention of the petitioner at the time of forwarding application for appointment on compassionate ground age of his father was 54 years and as his father was suffering from Paralysis and declared medically ::: Uploaded on - 22/07/2022 ::: Downloaded on - 29/12/2022 04:10:12 ::: J-wp585.18.odt 3/15 unfit to continue with the job, therefore, he was entitled for the said appointment. However, initially Collector, Yavatmal had not considered the same. Again on 25.10.2002 Standing Committee of Nagar Parishad, Digras had decided to refer the application of the petitioner for re-consideration for appointment of the petitioner on compassionate ground. In the Standing Committee Meeting dated 25.10.2002 it was decided by the members of the Standing Committee that the father of the petitioner was medically unfit and there is no source of income for the family. The pension which petitioner's father was getting was inadequate due to the medical expenses of his father. Accordingly, Resolution was passed and it was decided that the application of the petitioner is to be forwarded for re-consideration to the Collector. Said proposal for consideration, regarding appointment of the petitioner, on compassionate ground was also forwarded to the Government on 3 rd March, 2004. Initially, the proposal was forwarded to the Collector by letter dated 2.1.2003. The Government had taken cognizance of the ::: Uploaded on - 22/07/2022 ::: Downloaded on - 29/12/2022 04:10:12 ::: J-wp585.18.odt 4/15 said proposal and directed the Collector and respondent-Chief Officer to consider the application of the petitioner as a special case for consideration of the appointment on compassionate ground. In accordance with the said directions name of the petitioner was included in the waiting list published on 15.5.2010. On 4.6.2015 in the meeting of Standing Committee it was decided to re-consider the applications of the candidates who are in the zone of consideration for appointment on compassionate ground. Accordingly, proposal was forwarded to the Collector, Yavatmal along with the list for approval of the candidates to be appointed on compassionate ground. In the result, on 31.8.2015 petitioner was appointed on the post of Peon. Accordingly, he joined the service as a Peon on 31.8.2015.
5. It is further contention of the petitioner that suddenly on 18.1.2018 he had received communication from the respondent calling his explanation as to why his services should not be terminated in view of the complaint received from one P.P. Pappuwale, resident of Gawlipura, Digras, ::: Uploaded on - 22/07/2022 ::: Downloaded on - 29/12/2022 04:10:12 ::: J-wp585.18.odt 5/15 District Yavatmal. The petitioner had communicated with the respondent that he is not aware of the complaint, if any inquiry is conducted by the respondent then copy of the same be handed over to him. The said application was received by the respondent on 22.1.2018. But without giving an opportunity to the petitioner his services are terminated by the respondent on 29.1.2018. Said order of the respondent of termination is challenged by the petitioner in the present petition. It is the contention of the petitioner that without giving him an opportunity of hearing, without supplying him any information about the complaint and without any inquiry the action was taken by the respondent against him is illegal, arbitrary and liable to be set aside.
6. In response to the notice, the respondent has taken a stand that the action was taken as per the legal provisions. The compassionate appointment is neither a right nor inheritance, but it is only concession given to the family members of the deceased Government servant. It is further submitted by the respondent that the petitioner had ::: Uploaded on - 22/07/2022 ::: Downloaded on - 29/12/2022 04:10:12 ::: J-wp585.18.odt 6/15 suppressed the fact that his initial application was rejected and his services are terminated considering the complaint made against him by one P.P. Pappuwale. The action taken is legal and proper one. Writ Petition deserves to be dismissed.
7. Shri N.R. Saboo, learned counsel for the petitioner submitted that admittedly initial proposal was rejected by the Collector on the ground that the father of the petitioner had attained the age of 55 years and, therefore, the petitioner was not entitled for appointment on compassionate ground. In view of direction from the Government again proposal of the petitioner was re-considered by taking into consideration the financial condition of the family of the petitioner and by treating his case as a special case he was appointed in accordance with the directions of the Government. The said complaint was regarding the initial rejection of the proposal by the Collector. Subsequently, the Collector had approved said appointment. The respondent had not given any opportunity to the petitioner to explain the circumstances and arbitrarily issued the order of termination which is illegal. ::: Uploaded on - 22/07/2022 ::: Downloaded on - 29/12/2022 04:10:12 ::: J-wp585.18.odt 7/15 Hence, the impugned order is liable to be set aside. On the other hand, Shri Pravin Deshmukh, learned counsel for the respondent supported the action of the respondent by relying upon the affidavit in reply.
8. After hearing both sides and on perusal of the record it revealed that the father of the petitioner was serving as a Head-Master with the respondent. He had paralysis attack and declared medically unfit therefore he filed an application dated 17.4.1999 for retirement on medical ground. The respondent approved the request and father of the petitioner was retired on 4.11.1999 on medical ground. The Medical Board after examining the father of the petitioner, vide communication dated 25.10.1999, forwarded certificate declaring him permanently unfit for duty and thereafter respondent had approved voluntary retirement of the father of the petitioner. As father of the petitioner was the only earning source of the family, petitioner applied for employment on compassionate ground. The respondent in the meeting of Standing Committee decided to consider the ::: Uploaded on - 22/07/2022 ::: Downloaded on - 29/12/2022 04:10:12 ::: J-wp585.18.odt 8/15 proposal of the petitioner for appointment on compassionate ground and forwarded the said proposal to the Collector. However, the Collector by Order No.175/2000, dated 29.7.2000 rejected the proposal on the ground that the father of the petitioner had attained the age of 55 years, 3 months and 29 days and hence the petitioner is not entitled for the said appointment. Considering the need of the family, respondent again re-considered the proposal of the petitioner in the Standing Committee Meeting dated 25.10.2002 and decided to request the Collector to re-consider the proposal as a special case for appointment of the petitioner on the compassionate ground. Accordingly, the proposal was forwarded to the Collector on 2.1.2003. The proposal was also forwarded to the Government on 3.3.2004. In response to the proposal forwarded to the Government, the Government vide letter dated 23.8.2004 informed the respondent and the Collector, Yavatmal to re-consider the proposal of the petitioner as well as other five persons as a special case for appointment on compassionate ground in ::: Uploaded on - 22/07/2022 ::: Downloaded on - 29/12/2022 04:10:12 ::: J-wp585.18.odt 9/15 accordance with the directions of the Government and the name of the petitioner was included in a waiting list published on 15.5.2010. The name of the petitioner was appearing in the said list at Serial No.4. In a Meeting dated 4.6.2015 the Standing Committee members of the respondent decided to give appointment to the petitioner and other five persons on compassionate ground. Accordingly, Resolution was passed. As per the said Resolution proposal was forwarded to the Collector dated 27.7.2015 for the approval regarding the appointment of the petitioner and other five persons on compassionate ground. Accordingly, on 31.8.2015 appointment was given to the petitioner by issuing appointment letter. The petitioner was appointed on the post of Peon. Accordingly, petitioner had joined the service.
9. The respondent had issued a show cause notice dated 18.1.2018 on the ground that one P.P. Pappuwale had made a complaint to the Collector regarding the appointment of the petitioner on compassionate ground and called the explanation of the petitioner as to why his services should not ::: Uploaded on - 22/07/2022 ::: Downloaded on - 29/12/2022 04:10:12 ::: J-wp585.18.odt 10/15 be terminated. After receipt of the said notice petitioner filed an application with the respondent to give details about the said complaint. The said application was received by the respondent on 22.1.2018, but without giving any information and without giving any opportunity on 29.1.2018 the services of the petitioner was terminated by the respondent. It is submitted by the learned counsel for the respondent that one Shri P.P. Pappuwale had made a complaint to the Collector that the appointment of the petitioner was illegal as his father had completed 55 years of service and therefore the services of the petitioner are terminated. The action of the respondent is apparently unjustified on the ground that the Government had considered the case of the petitioner as a special case. When initially Collector had rejected the proposal the ground assigned was that the father of the petitioner had completed 55 years of age. In fact, the petitioner had forwarded the application for appointment on compassionate ground before his father completes 55 years of age. Said application was received by the respondent on 15.12.1999 itself and was ::: Uploaded on - 22/07/2022 ::: Downloaded on - 29/12/2022 04:10:12 ::: J-wp585.18.odt 11/15 belatedly forwarded to the Collector on 3.6.2000, on the date when application was forwarded to the respondent, father of the petitioner had not attended the age of 55 years. The Collector had considered that on the date when application was forwarded to the Collector the age of the father of the petitioner was 55 years and hence he was not entitled for the said appointment. The Resolution passed by the respondent in Standing Committee itself shows that when application was filed by the petitioner for considering his name for appointment on compassionate ground age of the father was 54 years. It is pertinent to note that on 25.10.2002 the respondent itself decided to re-consider the proposal of the petitioner for considering his name for appointment on compassionate ground and accordingly proposal was forwarded to the Collector as well as to the Government. The order of the Government itself clarifies that the father of the petitioner had completed 55 years of age but his case was treated as a special case and name of the petitioner along with other candidates was directed to be considered for ::: Uploaded on - 22/07/2022 ::: Downloaded on - 29/12/2022 04:10:12 ::: J-wp585.18.odt 12/15 appointment on compassionate ground. Accordingly, directions were given not only to the respondent but to the Collector also. Said communication is dated 23rd August, 2004. Thereafter, the name of the petitioner was included in the waiting list. Again in a Standing Committee Meeting dated 4.6.2015 members of the Standing Committee decided to give appointment to the petitioner and others on compassionate ground. Accordingly, the proposal was forwarded for approval. In view of the approval received from the Collector, the petitioner was appointed on the post of Peon on compassionate ground. It is also apparent that after receipt of the complaint neither the Collector nor the respondent had conducted any inquiry and directly show cause notice was issued to the petitioner. Neither the Collector nor the respondent had considered that said complaint related to initial rejection of proposal for appointment on compassionate ground on 29.7.2000. It is admitted fact that after rejection of the said proposal again Standing Committee of the respondent decided to re-consider the proposal. Thereafter, said proposal ::: Uploaded on - 22/07/2022 ::: Downloaded on - 29/12/2022 04:10:12 ::: J-wp585.18.odt 13/15 was forwarded to the Collector and Government. In accordance with the Government directions petitioner was appointed. Thus the very same reason that was the subject matter of the initial complaint could not have been reopened again. It is also apparent that the respondent had not conducted any inquiry even not given any opportunity to the petitioner to give explanation regarding the said show cause notice. Though the petitioner had called the respondent to furnish him relevant documents regarding the complaint or any inquiry conducted, but the respondent arbitrarily issued termination order which apparently is illegal and against the principles of natural justice. The very object and purpose of employment on compassionate ground is that there should be some financial help to the family who is suffering from financial crisis caused due to the loss of earning member, it is an assistance to their family.
10. In the light of above-said circumstances the order passed by the respondent is arbitrary, illegal and against the natural justice. Said order is passed by the respondent ::: Uploaded on - 22/07/2022 ::: Downloaded on - 29/12/2022 04:10:12 ::: J-wp585.18.odt 14/15 without giving fair opportunity to the petitioner, concept of fair opportunity which is the basis of natural justice which is denied to the petitioner. Without such fairness the decision was taken by the respondent is apparently illegal and is liable to be set aside. Therefore, the petition succeeds. In the result, we proceed to pass following order :
ORDER
(i) The writ petition is allowed.
(ii) The impugned order dated 29.1.2018 is
set aside.
(iii) It is held that in the light of the
permission granted by the State Government by its
communication dated 23.8.2004 to the Municipal Council to appoint the petitioner, the alleged deficiency with regard to the petitioner's father having crossed the age of 55 years would not now survive.
(iv) As a consequence of setting aside the order dated 29.1.2018, the petitioner is held entitled to be ::: Uploaded on - 22/07/2022 ::: Downloaded on - 29/12/2022 04:10:12 ::: J-wp585.18.odt 15/15 continued on the post on which he was appointed on 31.8.2015.
(v) The arrears of salary that have been withheld pursuant to the order dated 31.1.2018 shall be paid within a period of three months from the date of receipt of the copy of the judgment by the respondent.
11. The writ petition is disposed of. Pending civil application is also disposed of.
(Urmila Joshi-Phalke, J.) (A.S.Chandurkar, J.) okMksns ::: Uploaded on - 22/07/2022 ::: Downloaded on - 29/12/2022 04:10:12 :::