Bombay High Court
Vandana Wd/O Shankar Nikure vs The State Of Maharashtra, Through ... on 24 August, 2021
Author: Sunil B. Shukre
Bench: Sunil B. Shukre, Anil S. Kilor
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 3251 OF 2020
1. Smt. Vandana Wd/o. Shankar Nikure,
Aged about 47 Yrs., Occu. Labour,
2. Ashish S/o. Shankar Nikure,
Aged about 24 Yrs., Occu. Labour,
1 and 2 R/o. Shripur, Tal. Wani,
District Yavatmal. .... PETITIONERS
// VERSUS //
1. The State of Maharashtra,
Through Principle Secretary,
Rural Development Department,
PDW Bhavan, 25, Marzaban Road,
Fort Mumbai -400 001.
2. Chief Officer,
Zilla Parishad, Yavatmal,
District Yavatmal.
3. Deputy Chief Officer,
(General Administrative Department),
Zilla Parishad Yavatmal,
District Yavatmal. .... RESPONDENTS
Mr. M.L. Chauhan, Advocate for the petitioners
Mr. A.A. Madiwale, AGP for respondent No.1
Mr. R.D. Bhuibhar, Advocate for respondent Nos.2 and 3.
________________________________________________________________
CORAM : SUNIL B. SHUKRE AND
ANIL S. KILOR, JJ.
DATE : 24.08.2021.
ORAL JUDGMENT: [PER SUNIL B. SHUKRE, J.]
Heard.
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2. Rule. Rule is made returnable forthwith. Heard finally by consent of the parties.
3. The petitioner No.1 after having applied for grant of appointment on compassionate basis to her, made a representation on 03.07.2014 for deleting her name from the waiting list and substituting her name by the name of petitioner No.2- Ashish, son of petitioner No.1, as by that time, Ashish had attained majority. This representation of the petitioner was, however, not decided by respondent Nos.2 and 3 and and respondent Nos.2 and 3 took about more than three and half years to inform the petitioners of their decision in respect of the said representation. It was by the communication dated 27.04.2018 that respondent Nos.2 and 3 informed the petitioner No.1 that as she had completed 45 years of age, her name was being removed from the waiting list of the aspirants for compassionate appointment.
4. It is contended by the respondents that it has never been the policy of the State to allow substitution of names of the persons included in the waiting list by the names of other legal heirs. According to the respondents, this policy of the State is consistently in existence since 1994 and therefore, the impugned communication cannot be said to be illegal.
5. Though the respondents have been submitting that the ::: Uploaded on - 24/08/2021 ::: Downloaded on - 26/08/2021 03:40:33 ::: 31wp3251.2021(j).odt 3/5 policy of the State regarding prohibition on substitution of names of the persons in the waiting list made for giving compassionate appointments by the names of other legal heirs is in existence since the year 1994, learned counsel for the respondent Nos.2 and 3 could not point out to us any specific provision made in this regard in any of the Government Resolutions (GR), except for the GR dated 20.05.2015. It is this submission that since it is not mentioned in these GRs that such substitution is permissible, it has to be taken that the substitution is impermissible.
6. The argument cannot be accepted as what is not specifically and expressly prohibited cannot be said to be impermissible in law. When the policy of the State is silent in respect of a particular aspect, a decision in regard to that aspect would have to be taken by the Competent Authority by taking into consideration the facts and circumstances of each case. The reason being that it is only the express bar, which takes away the discretion inherently available to the authority by virtue of nature of function that the authority has to discharge and so absence of the bar would leave the discretion unaffected. That being the position of law, the argument that the earlier GRs also could not be understood as allowing the substitution of name of one legal heir by the name of another legal heir cannot be accepted and is rejected. ::: Uploaded on - 24/08/2021 ::: Downloaded on - 26/08/2021 03:40:33 :::
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7. Then, in the case of Smt. Pushpabai Wd/o. Rajesh Bisne and another Vs. State of Maharashtra and others , Writ Petition No.5944 of 2018, the Division Bench of this Court has taken a view that this GR cannot be applied to a case where the change of name was sought much earlier than coming into force of the GR dated 20.05.2015. The facts of this case being similar to the facts of the said case of Pushpabai (supra), we are of the view that the dispute involved in this case is squarely covered by the view so taken by this Court.
8. Apart from what is stated above, another Bench of this Court at Aurangabad in the case of Dnyaneshwar s/o Ramkishan Musane Vs. State of Maharashtra and others, 2020(5) Mh.L.J. 381, has found that part of the said GR dated 20.05.2015 is arbitrary and unreasonable and therefore, it has quashed the GR to the extent that it does not permit the change of name in the waiting list of the persons desirous of seeking compassionate appointment. So, even otherwise, we are of the view that no reliance could be placed by respondent Nos.2 and 3 on the said clause of GR dated 20.05.2015.
9. Accordingly, we are of the opinion that this petition deserves to be allowed.
10. The petition is allowed.
11. The impugned communication is hereby quashed and set ::: Uploaded on - 24/08/2021 ::: Downloaded on - 26/08/2021 03:40:33 ::: 31wp3251.2021(j).odt 5/5 aside.
12. The respondent Nos.2 and 3 are directed to consider and decide the representation dated 03.07.2014 filed by the petitioner No.1, in a reasonable manner, by taking into account the observations of this Court made in the of Writ Petition No.5944 of 2018 and also Writ Petition No.3284 of 2020, within a period of six weeks from the date of this order.
13. Rule accordingly. No costs.
JUDGE JUDGE
nd.thawre
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