1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY : AURANGABAD BENCH WRIT PETITOIN NO. 7376 OF 2008 with 1. Shankar s/o. Bhagwan Surwade, age 57 years, occ. nil, R/o. Bhimnnagar, Jamner, taluka Jamner, Dist. Jalgaon. - - Petitioners. 2. Vijay s/o. Shankar Surwade, age 31 years, occ. nil, R/o. as above. versus 1. The State of Maharashtra. 2. The Maharashtra State Road Transport Corporation, through its Managing Director, Central Ofice, Maharashtra Wahatuk Bhavan, Dr. Anantrao Nair Road, Mumbai. 3. The Divisional Controller, Maharashtra State Road Transport Corporation, Jalgaon Division, Jalgaon. - - Respondents Shri S. S. Jadhavar, Advocate for petitioners. Shri S. K. Tambe, Asstt. Govt. Pleader for Respondent No.1. Shri M. K. Goyanka, Advocate for Respondent No.3. WRIT PETITION NO. 7387 OF 2008 1. Suresh S/o. Bapurao Lad, age 57 years, occu. nil, R/o. Plot No.19, Gat No. 52/1, Shiv Colony, Jalgaon, District Jalgaon. 2 2. Prashant s/o. Suresh Lad, age 28 years, occ. nil, R/o. as above. - - - - Petitioners. versus 1. The State of Maharashtra. 2. The Maharashtra State Road Transport Corporation, through its Managing Director, Central Office, Maharashtra Wahatuk Bhavan, Dr. Anantrao Nair Road, Mumbai. 3. The Divisional Controller, Maharashtra State Road Transport Corporation, Jalgaon Divisoin, Jalgaon. - - Respondents Shri S.S. Jadhavar, Advocate for the petitioners. Shri S.K. Tambe, Asstt. Govt. Pleader for Respondent No.2. Shri M. K. Goyanka, Advocate for Respondent No.3. CORAM : B. R. GAVAI & N. D. DESHPANDE, JJ. Dated : 31st July 2009 ORAL JUDGMENT [ Per B. R. GAVAI, J. ] 1. Rule. Rule made returnable forthwith. Heard by consent. 2. By way of present petitions, the petitioners seek writ, order or directions thereby praying for quashing and setting aside the 3 Circular dated 28-7-2006 and 24-08-2006, and in the alternative, the petitioners have prayed for directions to respondents Nos.2 and 3 to consider case of the petitioner No.2 in both the petitions for appointment on compassionate grounds. 3. The facts giving rise to the petition in Writ Petition No. 7376 of 2008 are as under :- That, the petitoiner was working as Driver with the respondents Nos.2 and 3. He was promoted to the post of Vehicle Examiner. Since the petitioner No.1 was suffering from illness, he was referred to Civil Surgeon by respondent No.3 for medical check up on 30-5-2006. After check up, the Civil Surgeon had issued medical certificate dated 13-6-2006 thereby declaring petitioner No. 1 unfit for further service into the department as the petitioner was suffering from THD with Hypertension. The petitioner No.1 was accordingly issued termination order on 4th July 2006. However, in the termination order itself, petitioner was given liberty to prefer appeal within 30 days or to make application for appointment of any dependent on compassionate ground within a period of 15 days. 4 On 4th August 2006, the Medical Board also issued a certificate certifying that the petitioner was permanently incapable for further service. The said certificate was issued as the respondents Nos.2 and 3 had referred the matter to the Medical Board for medical check up of the petitioner. 4. In Writ Petition No. 7387 of 2008, the petitioner No.1 was appointed as Art `C' Mechanic. Subsequently, he was promoted as Art "A" Mechanic. On 15-6-2006, he was referred to the Civil Surgeon for medical check up, who, on 16-6-2006 issued medical certificate thereby declaring petitioner No.1 permanently disabled for further service in the department as he was suffering from consequences of Ltd. Hemiplegia + D.M. Accordingly, services of the petitioner No.1 came to be terminated on 3rd July 2006. 5. In the present case, as also in the earlier, petitioner was given option either to file appeal or to make application for appointment of his dependent on compassionate ground. In the present case also, Medical Board of Shri B. H. Govt. Medical College and Hospital, Dhule issued a medical certificate certifying 5 disability of the petitioner No.1 to continue in service vide Certifiate dated 24-7-2006. 6. In both the cases, petitioner No.1's made application for appointment of petitioner No.2 son on compassionate ground. However, said application were rejected on the ground that in view of the policy as was communicated to the officers of the respondent Corporation on 28-7-2006, compassionate appointment to the dependents of medically unfit declared employee was no more in existence. 7. Being aggrieved by the aforesaid communication denying compassionate appointment, the petitioners have approached this Court. 8. Shri Jadhavar, learned Counsel submits that the petitioners would be governed by policy which was in existence on the day on which termination orders were issued. It is submitted that in the termination order itself petitioner was given option either for preferring an appeal within 30 days or making application for appointment petitioner dependents on compassionate ground within 15 days. It is submitted that they did not file appeal on the 6 ground that cases of their dependents would be considered for appointment on compassionate ground. He submits that subsequent change in policy would not deny petitioners of the legitimate right of their legal heirs being appointed. 9. Shri Goyanka, learned Counsel vehemently opposed the petition. He submits that change was effected on account of change in the policy by the State Government which was effected vide Government Resolution dated 22-10-2005. It is submitted that the policy was adopted from 9-6-2007 though the communication was issued on 28-07-2006. 10. From the perusal of record, it would be clear that in Writ Petition No. 7376 of 2008, the termination order is issued on 4-7-2006 and in Writ Petition No. 7387 of 2008 it was issued on 3-7-2006. Though it is contention of the respondent that the change in policy was effected from 9-7-2006, there is nothing on record to show that the said policy was given effect to from the said date. It could be seen from the record that it is only for the first time that the policy was made public vide Circular dated 28-7-2006 and 24-8-2006. From the perusal of the order, it would also be sufficiently clear that it is specifically stated in the order that the 7 employees who were terminated were given option either to file appeal challenging the order on merits or to make application for appointment of their dependents on compassionate ground. 11. It is settled law that the services of the employees would be governed by the service conditions as they existed on the date of appointment / termination. In the present case, on the date of termination i. e. 3-7-2006 and 4-7-2006, the policy of the respondent Corporation was not yet changed, at least was not made known public. In any case, in the impugned order itself, a representation is made to the terminated employees that in case they desire to seek compassionate appointment for dependent, they should not file appeal challenging the order of termination. Admittedly, in the present case, petitioner No.1s have not challenged order of termination and have acted on the representation made in the termination order and have in turn applied for compassionate appointment as mentioned in the order of termination. A reliance could be placed on the judgment in the case of N.T. Devin Kutti and Others vs. Karnataka Public Service Commission and others, (1990) 3 S.C.C. 157 in support of proposition that the service conditions could not be changed subsequently and that the case would be governed by 8 service conditions as they were applicable on the date of the appointment or termination. Apart from this legal position, as already stated hereinabove, the petitioners would also be entitled to rest their claim on the basis of promissory estoppel. On the promise as represented in the termination order, that in pthe event, the terminated employees choose to apply for appointing their dependent on compassionate ground, they need not file an appeal. Both the petitioners have not preferred appeal. In that view of the matter, respondents cannot be permitted to resile from the representation given in the termination order. As such, we are of the considered view that the cases of the sons of the petitioners Nos.1, i. e. petitioners No.2 were required to be considered in view of the policy which existed earlier i. e. appointment on compassionate ground in case of termination of employee on the ground of physical disability. In that view of the matter, Rule is made absolute in terms of prayer clause (C). ( N.D.DESHPANDE, J. ) ( B. R. GAVAI, J. ) pnk/wp737608