State of Maharashtra and Others vs Jayshila Badge

Vasanti A. Naik, J.—Rule. Rule made returnable forthwith. The petition is heard finally with the consent of the learned counsel for the parties. By this petition, the petitioners impugn the order passed by the Maharashtra Administrative Tribunal on 11.8.2010, allowing an original application filed by the respondent and directing the petitioners to appoint the respondent in a Class-IV Category post on compassionate ground.

The husband of the respondent was serving as a X-ray Assistant/Ward Boy in the Rural Hospital at Lakhandur since 1988. The husband of the respondent expired on 24.4.2003 while in service. On 12.8.2003 the respondent submitted an application to the Medical Officer, Rural Hospital, Lakhandur, for an appointment on compassionate ground. The application was forwarded to the Collector, Bhandara, who registered the name of the respondent in the waiting list. Since the respondent was not appointed on compassionate ground for some time, she again applied to the Collector. It was then informed by the Civil Surgeon to the respondent that her name was deleted from the waiting list in terms of G.R. dated 22.8.2005 as she had crossed the age of 40 years. The respondent challenged the said communication before the Maharashtra Administrative Tribunal. The Maharashtra Administrative Tribunal, by an order dated 11.8.2010 directed the petitioners to appoint the respondent on compassionate ground.

Mrs. Dangre, learned Additional Government Pleader, appearing on behalf of the petitioners submitted that the Maharashtra Administrative Tribunal was not justified in allowing the Original Application and directing the petitioners to appoint the respondent on compassionate ground though the Government Resolutions dated 22.8.2005 and 23.4.2008 clearly prohibited the appointment of the persons above the age of 40 years on compassionate ground. It is submitted on behalf of the petitioners that initially the name of the respondent was kept in the waiting list but since she completed the age of 40 years, her name was deleted from the waiting list and she was not considered for appointment on compassionate ground. The learned Additional Government Pleader submitted that the G.R. dated 22.8.2005 was challenged before this Court but the challenge had failed.

Shri Choudhari, the learned counsel for the respondent, supported the order of the Maharashtra Administrative Tribunal and submitted that the Tribunal was justified by directing the petitioners to appoint the respondent on compassionate ground, as the petitioners had not brought anything on record to show that since 2003 to 2010 there was no vacancy in Class-IV category. It is submitted that the petitioners had appointed Shri Murlidhar Kalsarpe on compassionate ground though he was 42 years of age at the time of his appointment. The counsel for the respondent sought for the dismissal of the writ petition.

We have heard the counsel for the parties. We have perused the Government Resolution dated 22.8.2005 as also the Government Resolution dated 23.4.2008. It appears that by the Government Resolution dated 22.8.2005, the Government decided to provide compassionate appointment only to persons below the age of 40 years. In view of the Government Resolution dated 23.4.2008 and specially Clause ''C'' thereof, the candidates whose names were entered in the waiting list before 22.8.2005 were also not entitled for appointment if they attained 40 years of age before their appointment. It appears that Clause (C) of the Resolution gives a retrospective effect to the Government Resolution dated 22.8.2005. In view of the Government Resolution dated 23.4.2008, the respondent was not entitled for appointment on compassionate ground. However, the Tribunal erroneously held that the Government Resolutions dated 22.8.2005 and 23.4.2008 excluded only the persons whose names existed in the waiting list between the two said dates. The Tribunal ought to have considered Clause (C) of the Government Resolution dated 23.4.2008 which stipulated that the persons whose names were placed in the waiting list before 22.8.2005 also could not be considered for appointment on compassionate ground if they attained 40 years of age before they were actually appointed. Hence, the petitioners were justified in removing the name of the respondent from the waiting list after she completed the age of 40 years.

In this petition, we are not required to consider whether Shri Murlidhar Kalsarpe was legally or illegally appointed in the Class-IV post on compassionate ground though he was more than 40 years of age at the time of his appointment on 16th June 2006. However, even if he has been wrongly appointed, the respondent cannot claim parity and seek appointment as she has completed the age of 40 years, and she does not have any legal right to claim the appointment on compassionate ground, in view of the two Government Resolutions referred to hereinabove. The learned Additional Government Pleader, however, fairly states that in case Shri Murlidhar Kalsarpe has been wrongly granted appointment on compassionate ground though he was not legally entitled to the same, the petitioners would take appropriate action against him. For the reasons aforesaid, the writ petition is allowed. The impugned order passed by the Maharashtra Administrative Tribunal on 11.8.2010 is quashed and set aside. The Original Application filed by the respondent stands dismissed.

Rule is made absolute in the aforesaid terms with no order as to costs.