VIJAYA UKARDA ATHOR(ATHAWALE) Vs STATE OF MAHARASHTRA AND OTHERS
Bench: V. GOPALA GOWDA,R. BANUMATHI
Case number: C.A. No.-000409-000410 / 2015
Diary number: 22002 / 2014
Advocates: SANJAI KUMAR PATHAK Vs
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REPORTABLE
IN THE SUPREME COURT OF INDIA CIVIL APPELLALTE JURISDICTION
CIVIL APPEAL NOS.409-410 OF 2015 (Arising out of S.L.P. (C) Nos. 20840-41/2014)
Vijaya Ukarda Athor (Athawale) ..Appellant
Versus
State of Maharashtra and Ors. ..Respondents
J U D G M E N T
R. BANUMATHI, J.
Delay condoned. Leave granted.
2. These appeals arise out of the impugned Order dated
18.03.2013 passed by the High Court of Bombay Bench at Nagpur,
in W.P. No.1341 of 2013 and Order dated 22.11.2013 passed in the
Review Application No.511 of 2013 in Writ Petition No.1341 of
2013, whereby the High Court dismissed the Writ Petition and also
the Review Application thereby declining to issue direction to
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consider the case of the appellant for compassionate appointment.
3. The issue relates to the compassionate appointment
between the rival claimants. Late Ukarda Athor (Athwale), who
was working as a clerk in Municipal Corporation, Amravati, had two
wives namely Shantabai Ukarda Athor and Kuntabai Ukarda Athor.
He died on 18.06.1997. The appellant-Vijaya Ukarda Athor
(Athawale), is daughter of Late Ukarda Pundlikrao Athor (Athawale)
through the first wife, 3rd respondent is the son of Late Ukarda
Athor through the second wife. Smt. Shantabai Ukarda Athor,
mother of the appellant, filed a Regular Civil Suit No.40 of 2001 in
the Court of Civil Judge (Junior Division), Anjanagaon-Surji, Dist.
Amravati, seeking for a declaration being the legal heirs of
deceased Ukarda Athor, they have the right in the property,
pension and funds of deceased Ukarda Athor and the said suit was
decreed by the judgement dated 15.01.2005. In the Succession
Case No.6/1998 Dated 24.09.2007 filed under Section 372 of the
Indian Succession Act, 1925, the Civil Judge (J.D.), Distt. Amravati,
interalia, ordered that the mother of the appellant would be
entitled for the benefit of the pension of the deceased. In the
succession case, it was further ordered that the appellant and her
mother would be entitled to 1/4th share each of total amount of GPF
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and other funds of Ukarda Athor. On 25.5.2009, respondent No.3
moved an application seeking compassionate appointment. On
19.4.2012, the appellant filed an objection application, raising
objection for consideration of job application filed by respondent
No.3 and requesting the authorities not to give him the
compassionate appointment. The Municipal Corporation vide order
dated 18.09.2012 appointed respondent No.3- Sagar Ukarda
thereby declaring the appellant ineligible for the compassionate
appointment as she has already got married.
4. Aggrieved by the order of non-grant of appointment,
appellant herein filed a Writ Petition No.1341 of 2013 before the
High Court of Bombay. Vide order dated 18.03.2013, the High
Court dismissed the aforesaid writ petition holding that on the date
of appointment, the appellant was a married daughter and the
policy decision was taken by the State Government on 26.2.2013
for grant of compassionate appointment to married daughter and
before the said date the appellant was not eligible for any
appointment. The appellant filed a review application before the
High Court which was also dismissed vide order dated 22.11.2013.
In these appeals, the appellant assails the above orders.
5. Learned counsel for the appellant contended that at the
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time of death of her father Mr. Ukarda Athor (dated 18.06.1997)
the appellant who was then a minor, submitted an application
seeking appointment on 29.12.1997 and again after attaining
majority, the appellant sought compassionate appointment for the
post of clerk vide her application dated 19.03.1998, filed in a
prescribed proforma. However, for a long time, no appointments
took place in the respondent-Corporation. It was also submitted
that appellant got married in 2009, but still she would take care of
the needs of her widowed mother and there is no bar for giving
compassionate appointment to a married daughter and rejecting
the claim of a married daughter who is otherwise suitable for
seeking compassionate employment defies any logic. It was
submitted that the High Court did not keep in view that the
appointment has been sought on compassionate grounds for the
post of clerk ever since the death of appellant’s father as per the
well settled proposition laid down by the Supreme Court. It was
contended that the compassionate appointment given to
respondent No.3, who is an illegitimate son of the deceased-
employee is not sustainable.
6. The learned counsel for the second respondent-
Corporation submitted that the appointment on compassionate
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ground cannot be claimed as a matter of right but can be claimed
only in terms of the Rules or Regulations framed in this regard.
Placing reliance upon the judgments of this Court in the case of
Shreejith L. vs. Deputy Director (Education) Kerala and Ors., (2012)
7 SCC 248 and The Chief Commissioner, Central Excise and
Customs, Lucknow & Ors. vs. Prabhat Singh, 2013 (1) SCALE 506, it
was submitted that where the norms have been laid down for
making compassionate appointments, the same have to be strictly
followed.
7. The learned counsel further submitted that when the
application for compassionate appointment was considered as per
Government Resolution dated 26.10.1994, only unmarried
daughter was eligible to be considered for compassionate
appointment. Learned counsel urged that the State Government
has taken a Policy Decision only on 26.02.2013, as per which the
married daughters would also be eligible for consideration for the
grant of compassionate appointment subject to the fulfilment of
certain conditions. The learned counsel further contended that
before 26.02.2013 since the appellant was not eligible to be
considered for compassionate appointment, the High Court rightly
dismissed the writ petition and the impugned orders do not suffer
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from any infirmity warranting interference.
8. The learned counsel for the respondent No.3 submitted
that even though respondent No.3 is the son of a deceased
employee out of second wedlock and illegitimate child, yet there is
no denying the fact that he remains the son of deceased-Ukarda
Athor and therefore, the respondent No.3 was entitled to the same
treatment as is available to the child of first marriage. It was
submitted that as the illegitimate son of the deceased the 3rd
respondent is entitled to get appointment on compassionate
ground subject to the fulfilment of certain criteria as laid down by
the authorities and in consideration of the status of the respondent
No.3 and the Policy Decision of the State Government, rightly
respondent No.3 was given the appointment and the High Court
rightly dismissed the writ petition and also the review application
and the impugned orders warrant no interference.
9. We have carefully considered the rival contentions and
perused the impugned order and other materials on record.
10. The fact that the appellant is the daughter through the
first wife-Shantabai Athor and respondent No.3 is the son through
the second wife-Kuntabai Athor of Late Ukarda Athor are not in
dispute. Ukarda Athor died on 18.06.1997. According to the
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appellant, her mother submitted an application dated 29.12.1997
stating that her daughter Vijaya Athor-appellant who is aged
seventeen years and then a minor studying in 10th standard,
should be given compassionate appointment when she attains
majority. According to the appellant after she attained majority
she has submitted another application on 19.03.1998, seeking
compassionate appointment; but for quite sometime, the same
was not considered by the authorities. The appellant was married
in the year 2009. The contention of the appellant is that her
application for compassionate appointment was kept pending by
the authorities without any justifiable reason. But according to the
respondent No.2-Corporation, giving employment in government
service on compassionate ground was then governed by
“Government Resolution, General Administration Department, No.
Comp.1093/2335/M.No.90/93/Eight, dated 26 October, 1994”. As
per the said Resolution only the unmarried daughter of the
deceased would be eligible for the appointment as per Rules.
Reliance is placed on clause (3)(a) of Government Resolution which
reads as under:
“(3) (a). Husband/wife, son or unmarried daughter of the deceased/ prematurely retired government employee OR son/unmarried daughter lawfully adopted, before death/premature retirement, shall be deemed to be the relatives eligible to be appointed as per rules. Except
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them, no other relative shall get the benefit under this scheme.”
The State Government has taken a Policy Decision on
26.02.2013 and held that the married daughters are also entitled
for compassionate appointment subject to certain conditions.
11. In our considered view, the questions viz.: (i) the effect
of “Government Resolution, General Administration Department,
No. Comp. 1093/2335/M. No.90/93/Eight, dated 26.10.1994 and
effect of Clause (3)(a); (ii) the plea that the appellant submitted
application on 29.12.1997 and 19.03.1998, that the same was not
considered by the authorities for quite sometime; (iii) at the time
when the applications for compassionate appointment was
considered in 2012 whether 3rd respondent was eligible to be
considered; (iv) the effect of subsequent policy decision dated
26.02.2013 taken by the State Government as per which the
married daughter is also eligible to get compassionate
appointment; and (v) such other relevant questions which are to
be examined. In our considered view, instead of this Court
examining the above questions, the matter is to be remitted back
to the High Court for considering the above questions in the light
of the facts and circumstances of the case.
12. In the result, the impugned Orders of the High Court in
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Writ Petition No.1341 of 2013 dated 18.03.2013 and Review
Application No. 511 of 2013 dated 22.11.2013 are set aside and
the appeals are allowed and the matter is remitted back to the
High Court for consideration of the matter afresh. The High Court
shall give sufficient opportunity to the appellant and the
respondents and consider the matter afresh expeditiously and in
accordance with law.
………………………..J. (V. Gopala Gowda)
………………………..J. (R. Banumathi)
New Delhi; January 14, 2015
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ITEM NO.1B-For Judgment COURT NO.11 SECTION IX
S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Petition(s) for Special Leave to Appeal (C) No(s). 20840- 20841/2014
(Arising out of impugned final judgment and order dated 18/03/2013 in WP No. 1341/2013,22/11/2013 in MA No. 511/2013,22/11/2013 in WP No. 1341/2013 passed by the High Court Of Bombay At Nagpur)
VIJAYA UKARDA ATHOR(ATHAWALE) Petitioner(s) VERSUS STATE OF MAHARASHTRA AND OTHERS Respondent(s)
Date : 14/01/2015 These petitions were called on for pronouncement of JUDGMENT today.
For Petitioner(s) Mr. Sanjai Kumar Pathak,Adv. Mr. Ashish Kumar Sinha, Adv.
Mr. Arpit Rai, Adv.
For Respondent(s) Mr. Shankar Chillarge, Adv. Mr. Aniruddha P. Mayee,Adv.
Mr. Suhas Kadam, Adv. For M/s Lemax Lawyers & Co.
Hon'ble Mrs. Justice R. Banumathi pronounced the
judgment of the Bench comprising Hon'ble Mr. Justice V.
Gopala Gowda and Hon'ble Mrs. Justice R. Banumathi.
Delay condoned.
Leave granted.
The appeals are allowed in terms of the signed order.
(VINOD KR. JHA) (RENU DIWAN)
COURT MASTER COURT MASTER
(Signed Reportable judgment is placed on the file)