1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 186 OF 2009 Ganesh Mahadev Takalkar, Age : 22 years,Occu. : At present Nil, R/o Saraswati Colony, Ward No. 7, Tal. Shrirampur, District Ahmednagar. .. .. Petitioner Versus 1. The Secretary, Remand Home, Shrirampur, Tq. Shrirampur, Dist. Ahmednagar. 2. District Woman and Child Development Officer, Priyadarshani Building, Sarjepura, Ahmednagar. 3. Rakesh Dinkar Kulthe, Age : Major, Occu. : Service, R/o Remand Home, Shrirampur, Tq. Shrirampur, District Ahmednagar. .. .. Respondents Shri P. V. Barde, Advocate for the Petitioner. Smt. Renuka Ghule, Advocate for the Respondent No. 1. Shri S. K. Kadam, A. G. P. for the Respondent Nos. 2. Shri V. V. Tarde, Advocate h/f Shri A. B. Kale Advocate for the Respondent No. 3. 2 CORAM : B. R. GAVAI, AND N. D. DESHPANDE, JJ. DATE : 25TH AUGUST, 2009. ORAL ORDER [Per B. R. Gavai, J. ] : 1. By way of present petition, the petitioner challenges order dated 17th March, 2007 issued by the District Child and Woman Development Officer, Ahmednagar thereby canceling approval granted to the appointment of petitioner. 2. The petitioner was appointed vide order dated 17th March, 2007 passed by the honorary Secretary Remand Home Shrirampur. The said services were also approved by the respondent No. 2 vide order dated 20th March, 2007. Subsequently on 20th December, 2007 the approval granted has been cancelled. 3. Shri Barde learned counsel appearing on behalf of petitioner submits that, since the petitioner was appointed on compassionate ground as the petitioners father had superannuated on account of serious illness, the respondent No. 1 had erred in canceling approval granted to him earlier. He further submits that, the withdrawal of approval is without giving any show cause notice and as such not sustainable in law. Learned counsel for the petitioner relied on the judgment of Apex Court in the case of Sushilkumar Yadav vs. State of Bihar and others reported in 2009 All SCR 608. 3 4. Shri Kadam learned assistant government pleader appearing on behalf of respondent No. 2 submits that, the appointment of the petitioner was illegal and he was appointed purely on leave vacancy as his father was on leave. It has further been stated that, though petitioner was not attending the office from 18th December, 2007, he has taken away the muster roll from the Superintendent namely S. S. Nagarkar. On obtaining the muster roll, he has signed the said muster roll from 15th November, 2007 to 31st January, 2008. It has further been submitted that, the appointment is not in accordance with the Rules, as such petitioner does not have any claim. It is also the stand of respondent No. 1 that, the appointment of the petitioner was on leave vacancy and not on compassionate ground. 5. Undoubtedly, the respondent No. 1 is an organization of State Government. The Government of Maharashtra vide Resolution/Circular dated 27th August, 2005 has laid down a policy that only the dependents of employees who have died in service would be entitled to be appointed on compassionate ground. The respondent No. 1 is bound to follow the policy of State Government. Apart from that, it is also disputed by the respondent No. 1 and 2 that, the appointment of the petitioner was on compassionate ground. Both the respondents on affidavit have stated that the appointment was on leave vacancy arising out of leave of the father of the petitioner. 6. The appointment on compassionate ground is not a matter of right, it is subject to the policy of the employer. In the present case, 4 it is also disputed whether appointment is in fact on compassionate ground or on leave vacancy, though the petitioner has averred so, said position is denied by the respondent Nos. 1 and 2. 7. In so far as, the judgment which is relied by Shri Barde learned counsel for the petitioner is concerned, in the said case Court after taking into consideration that, the petitioner was in service for a period of 10 years, in the facts of the said case and particularly in since the, that father of the petitioner had died while discharging his duties had allowed the petitioner to continue in service. The Apex Court has clearly held in the said case that, there shall be no Rule precedent. The observations of the Apex Court are as under : "Ordinarily, we would not have interfered in the matter but looking into the fact that incumbent was appointed purely on the ground of mercy as his father died in discharging his duties as Government servant. Therefore, the equity requires that such appointment should not have been disturbed by the Authorities. We are satisfied on the ground of equity that the incumbent should be allowed to continue as he has been in service from 1993 and was appointed only on the ground of his father having died while discharging his duties during the Election. Therefore, it was an equity which prevails with us. Without laying down any precedent and going on the merits of this case, we think that it would be just and proper to allow this incumbent to continue in service as he has lost his father in discharge of service". In that view of the matter, reliance placed by the petitioner on the 5 aforesaid judgment is of no assistance to the case of the petitioner. Petition being without merits is rejected. 8. In so far as the contention of petitioner in regard to non issuance of notice and not giving opportunity of hearing is concerned, said submission is without any merit. As basic appointment of the petitioner is dehors of the provisions of law and Government Resolution and without following recruitment Rules, we do not find any opportunity was necessary as the basic appointment of the petitioner was illegal. [ N. D. DESHPANDE, J.] [ B. R. GAVAI, J.] bsb/August 09