1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.6305 OF 2009 Shaikh Tajamul s/o Shaikh Abdul Wahid, Age: 30 Yrs., occu.Nil, r/o Mohalla Gummat, Johar Colony, Sillod, Tq.Sillod, District Aurangabad. - PETITIONER VERSUS 1) The State of Maharashtra Through its Principal Secretary, Rural Development Department, Mantralaya, Mumbai. 2) The Dean, Government Medical College & Hospital, Aurangabad, District Aurangabad. 3) The Zilla Parishad, Jalna, Through its Chief Executive Officer, Z.P.,Jalna, District Jalna. - RESPONDENTS ***** 2 Mr.MS Choudhari,Advocate for Petitioner; Mr.RP Phatake,AGP for Respondent Nos.1 & 2; Mr.Bhushan Kulkarni, Advocate for Resp.No.3. ----- CORAM : S.B.DESHMUKH & K.U.CHANDIWAL,JJ. DATE : 25th August, 2010. ORAL JUDGMENT (PER: S.B.DESHMUKH,J.) 1) Heard the learned Counsel for the respective parties. 2) Rule. Rule made returnable forthwith. Heard finally by consent of the parties. 3) The petitioner, by this petition filed under Article 226 of Constitution, seeks quashment of communication dated 29th March, 2008 issued by Respondent No.3 – Chief Executive Officer, Zilla Parishad, Jalna, refusing appointment to the petitioner on compassionate ground. The principal challenge, raised in this petition by the petitioner, is to this communication of respondent no.3. The petitioner also seeks appointment on compassionate ground on Class-III post on the establishment of Respondent No.3. 3 4) There are some admitted facts amongst the parties. Respondent No.3 is constituted in accordance with the provisions of Maharashtra Zilla Parishads and Panchayat Samities Act, 1961 (hereinafter to be referred as the said Act). Father of the petitioner, viz. Sk. Abdul Wahed Sk. Abdul Rajjak, indisputably was working as a Compounder with Primary Health Center, Warud (Bk.)run by Respondent no.3. According to the petitioner, his father was suffering from paralysis and had also sustained a paralytic attack when he was working as Compounder with Respondent no.3. Several clinical tests/investigations were carried out in accordance with medical advice. Father of the petitioner was also required to be admitted initially in a hospital run by Respondent no.3 and subsequently in a private hospital, since the facilities required to a patient like father of the petitioner, were not available at the particular of time, in the hospital run by Respondent No.3. 5) The learned Counsel for petitioner points out the Certificate dated 27th August, 2001 issued by the Medical Officer, Primary Health Center, Warud (Bk.), Tq. Jafrabad, District Jalna (page 20 of the petition), which reveals that father of the petitioner was admitted to a 4 Primary Health Center, since he sustained heart attack. Subsequently, father of petitioner suffered a paralytic attack, for which certain tests were carried out; Oxygen was required to be provided to him and ECG test was required to be done. As the said facilities were not available in the Government hospital, therefore, father of the petitioner was advised to be shifted and admitted in a private hospital. 6) Our attention is invited to the Certificate dated 2nd September, 2001 (page 22 of compilation) issued by Dr.K.G.Pargaonkar, certifying that Mr.Abdul Wahed Abdul Rajjak, 50 Yrs./male, (i.e. father of petitioner) was admitted in that hospital, was treated from 27.8.2001 to 2.9.2001 for acute myocardial infraction with cerebral vascular accident and he was advised to take rest for two months from 27th August, 2001. Report shows MRI Scan of brain without contrast was carried out. The said report dated 12th June, 2006 of Mangal Medi-Centre is at page 23 of the petition. 7) The contention of the petitioner, that his father sustained heart attack and paralytic attack, when he was working as Compounder, is substantiated by a communication (Exhibit-B, page 25 of WP) dated 9.9.2001, issued by Medical 5 Officer, PHC, Warud (Bk.) Tq. Jafrabad, District Jalna to District Health Officer, Zilla Parishad, Jalna, wherein it is mentioned that when the father of the petitioner was on duty on 25th August, 2001, suddenly he suffered an heart attack followed by severe paralytic attack and, therefore, he was required to proceed on long leave. The said communication further clarifies that father of the petitioner was found to be incapable of performing his duty as a Compounder and was on leave w.e.f. 26.8.2001 onwards. 8) Another communication dated 18th December, 2001 is considered by us. It is addressed by Medical Officer, Primary Health Center, Warud(Bk.) to District Health Officer, Zilla Parishad, Jalna. This communication also supports the case of the petitioner.. 9) The order dated 20th February, 2002, passed by the Respondent No.3 is pointed out to us. It is at Exhibit-D (page 29 of compilation). By virtue of this order, father of the petitioner was found incapable to perform his duties as a Compounder on medical ground as mentioned in the Certificate and was relieved from service. This very document is significant from two view points, firstly during the course of employment, 6 an employee can be relieved from service on the ground of a resignation by Respondent No.3; Secondly, the concerned employee, who deserves to be dismissed or whose services are to be terminated, after following Service conditions by the competent authority, could be relieved from services; Third is the category, in accordance with Service Conditions of Respondent no.3, if an employee is found incapable for discharging his duties on the ground of illness. This 3rd course of action appears to have been resorted to by the respondents. This very fact is not seriously disputed on behalf of Respondent no.3. 10) The learned Counsel appearing for respondent no.3 supported the order passed. He invited our attention to Exhibit-C (page 28), which is a Certificate issued by the Medical Board. This document is of prime importance. It is not disputed by learned Counsel appearing for Respondent No.3 that this certificate has been issued by the Medical Board. The learned Counsel submits that the certificate (Exhibit-C) is issued in accordance with the provision contained in Rule 71(1) of Maharashtra Civil Services Rules. These MCS Rules are applicable to the employees of the State Government. Indisputably, these Rules have also been made applicable to the employees of Respondent No.3. A format of a 7 Certificate, to be issued under Rule 72(1) of MCSR, is laid down. The Certificate (Exhibit-C, page 28) is exactly in consonance with the said format. This certificate has been signed by the Members of the Medical Board. One of them appears to be President and two others are members of the Board. This certificate discloses that father of the petitioner, on the date of issuance of the certificate, i.e. 26th December, 2001, was around 47 years old. Counsel for the Respondent no.3 points out the age that has been claimed by the petitioner on the date of issuance of the certificate. In other words, according to counsel for Respondent no.3, father of petitioner claimed to be 47 years of age on that date and has been accepted by the Medical Board. The next sentence of this certificate has been pointed out to us by Mr.Choudhari, learned Counsel for petitioner. The Medical Board has observed that by appearance it felt father of the petitioner was around 47 years old. 11) This matter was before this Court day before yesterday. After arguing the matter for some time, the counsel for respondent no.3 sought time to get the original record from the respondent no.3. This was to ascertain the date of birth and age of father of the petitioner on 26th December, 2001. Time was granted. 8 Today, the learned Counsel Mr. Kulkarni, fairly states that the claim of the petitioner, that date of birth of his father as 27th December, 1955, is correct. In other words, father of the petitioner was 47 years old on the date of issuance of the certificate dated 26th December, 2001. Another important aspect that needs to be looked into that the said Certificate specifies as to incapacity of father of the petitioner for performing his duties as Compounder. The illness, which has been certified by the Medical Board is, “Diabetes Mellitus Ischemic heart disease with essential hypertension”. Mr.Kulkarni, learned Counsel, has made available the original copy of the Certificate from the file. We have seen the said certificate and considered the description of illness/ailment suffered by father of the petitioner at the relevant time. The original certificate, after perusal, has been returned to learned Counsel for Respondent No.3. 12) Mr.Kulkarni, learned Counsel, contended that Government Resolution dated 28th March, 2001, has been interpreted in its proper perspective by Respondent no.3. He points out Exhibit-E (page 30 of petition), which is a copy of Government Resolution dated 28th March, 2001. This Govt. Resolution is relevant from the point of 9 submission made on behalf of the respondent no.3. The said Govt. Resolution depicts that the Rules for appointments on compassionate ground, which were in existence on 25th October, 1994; 23rd August, 1996 and 12th March, 1997, have been revised and reconsidered by the State Government with certain modifications. Clause (B) of the said Govt. Resolution is relevant, according to which, the clauses 2(B), (C) (D) as set out in Govt. Resolution date 26th October, 1994 have been deleted and skipped and instead, amended clause 2(B) is incorporated, which is reproduced in verbatim as under : “ The employees, who incurred incapacity or incapability of performing duties perpetually on account of Cancer, paralysis or accident, before completing 50 years of their age, the family members of such employees can only be considered as eligible for appointments on compassionate ground”. 13) Mr.Kulkarni, learned Counsel, disputes the claim of the present petitioner on that ground that father of the petitioner was suffering from heart ailments at the relevant time. It is not in dispute that father of the 10 petitioner died on 13th November, 2006. We are not concerned with date of death of father of the petitioner. In the facts and circumstances of the present case, father of the petitioner was relieved from service on account of having incurred incapacity/incapability. The dispute is only in respect of a particular disease claimed by the petitioner. According to petitioner, his father had incurred incapacity on account of paralysis. Mr. Kulkarni, learned Counsel, submits that incapacity incurred by an employee on account of paralysis is not contemplated in the Government Resolution (Exhibit-C). 14) We have seen the Government Resolution (Exhibit-C). In our opinion, appointment on compassionate ground is a policy decision laid down by the State Government, principally on account of death of a Government employee and sufferance of the dependent family members of such employee. The objective in framing such a policy by the State Government is to make available immediate succor to the family members who have lost their bread-winner. Another aspect of the matter is, loss of employment by a Government employee owing to having incurred incapacity/incapability to perform the duties due to serious ailments/illness and accident. In the instant case, there is ample material on record 11 to show that father of the petitioner was working as Compounder with Respondent No.3, he had sustained paralytic attack, was admitted to primary health center initially and subsequently to private hospital, was treated for said illness and died in 2006. Fact remains that the family of deceased – Mr.Abdul Wahed Abdul Rajjak, has lost the bread-winner. The claim of the present petitioner that his father was bread-winner and after compulsorily retiring the father of the petitioner, his family is facing financial difficulties is justifiable. In our view, case of the present petitioner is squarely covered by Government Resolution (Exhibit-E). Therefore, the impugned order passed by Respondent No.3, needs to be quashed and set aside. We are therefore inclined to quash and set aside the impugned order in this petition with further directions to Respondent No.3. to consider the claim of the present petitioner for appointment on compassionate ground, as per his eligibility on a suitable post and in accordance with provisions of law and the relevant Government Resolution issued in this regard. 15) In the result, the writ petition is partly allowed. The impugned order dated 29th March, 2008 (Exhibit-H) issued by respondent No.3 - Chief Executive Officer, Zilla Parishad, Jalna, 12 is hereby quashed and set aside. The Respondent No.3 is directed to consider the claim of the present petitioner for appointment on compassionate ground as per his qualification, suitability and in accordance with provisions of law, and the relevant Government Resolution issued in this regard, within a period of three months from today. Rule is made partly absolute in above terms. There shall be no order as to costs. sd/- sd/- (K.U.CHANDIWAL) (S.B.DESHMUKH) JUDGE JUDGE bdv/ Authenticated copy (BD VADNERE,PS)