1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.5552 OF 2009 Bhaskar S/o.Bhagwan Gadekar, Age-30 years, Occu-Agriculture and Labour, R/o.Tisgaon, Tq.Pathardi, Dist. Ahmednagar PETITIONER VERSUS 1. The State of Maharashtra 2. The Zilla Parishad, Ahmednagar Through its Chief Executive Officer, Zilla Parishad, Ahmednagar RESPONDENTS Mr.A.P.Avhad, learned counsel for petitioner. (CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.) RESERVED ON : 25/08/2009 PRONOUNDED ON : 27/08/2009 ORDER : (Per A.V.Potdar, J.) 1. By the present writ petition under Article 226 of The Constitution of India, the petitioner applicant has prayed that the order passed by the C.E.O., Zilla Parishad, Ahmednagar dt. 03/03/1999 rejecting the application of the petitioner for the compassionate appointment to be quashed and set aside. The petitioner has also prayed for issuance of writ of mandamus for 2 directions to respondent no.2 Zilla Parishad, Ahmednagar to direct to appoint the petitioner on compassionate ground as per the scheme laid down by Government Resolution dated 26/10/1994. 2. Heard learned counsel appearing for the petitioner. According to the petitioner, the father of the petitioner was working as an Assistant Teacher with the Primary School run by the Zilla Parishad, Ahmednagar, at Datarwadi, Tal.Pathardi, Dist : Ahmednagar. He expired on 21/04/1997 while in service. The elder brother of the petitioner by name Ashok got temporary appointment as Assistant Teacher at Beed on 08/07/1996. In regular course, he became permanent. In view of the resolution passed by the State Government dated 26/10/1994, the petitioner applied to the 2nd respondent to appoint him on the compassionate ground vide application dated 10/02/1998. The said application was rejected by the C.E.O., Zilla Parishad, Ahmednagar vide his order dated 03/03/1999 on the ground that while scrutinizing the application submitted by the petitioner, it is noticed that at the time of demise of his father, his elder brother was already serving as an Assistant Teacher at Ganesh Vidyalaya, Ashti, Beed. In the premise, his application can not be considered for compassionate appointment as it do not cover under Clause 7(B) of the Government Resolution dated 26/10/1994. This communication is impugned in the present writ petition. 3. Undisputedly, the application for appointment on 3 compassionate ground is filed by the petitioner was rejected by the respondent no.2 and by communication dated 03/03/1999 informed to the petitioner. Thereafter the present petition is filed on 01/08/2009 i.e. near about after 10 years and 5 months. In the petition, the petitioner has nowhere explained the delay in filing the writ petition challenging the said communication. According to learned counsel appearing for the petitioner, he has explained this laches in para no.8 of the writ petition as according to him, the petitioner was having poor knowledge of Law and procedure to be followed for the appointment on compassionate ground. The petitioner was initially busy in improving the condition of his family as he was holding small piece of an agricultural land and was maintaining his family from the income derived from that agricultural land. After he got the proper guidance, he had filed the present writ petition. Hence according to him, he has properly explained the delay. 4. In support of contention of the petitioner, learned counsel placed reliance on the ruling reported in AIR 1993 Supreme Court 802, in the matter of M/s.Dehri Rohtas Light Railway Company Limited versus District Board, Bhojpur and others, On the observations in para no.12 and 13, wherein it is observed that “the real test to determine delay in such cases is that the petitioner should come to the writ Court before a parallel right is created and that the lapse of time is not attributable to any laches or negligence. The test is not to physical running of time. Where the circumstances justifying the 4 conduct exists, the illegality which is manifest can not be sustained on the sole ground of laches. Further reliance is also placed on the ruling given by the Division Bench of this Court reported in 2008(3) ALL M R 240 in the matter of Vijay Kumar Gupta versus state of Maharashtra and others, on the observations in para no.19 wherein it is observed that “Repetitive wrongs are incapable of excuse injuria non excusat injurian. The jurisdiction of the Court under Article 226 of the Constitution of India is an extraordinary jurisdiction and can be fairly invoked even on equitable principles. Merely because the parties in order to hush up the matter and to prevent proper adjudication of a matter of public importance wanted to withdraw their steps would not frustrate the exercise of constitutional jurisdiction of the court by such clever devises. Nobody should be permitted to over reach the process of law as none is above Law. In such circumstances where arbitrariness in state action is exposed , the delay per se is not so material.” So far as the ratio about the delay in filing the writ petition as observed in both these rulings is concerned, we are of the considered view that these authorities are not applicable in the present writ petition. 5. It is observed by the Apex Court in the judgment reported in 2006(5) Supreme Court Casts 766 in the matter of State of J & K and others versus Sajad Ahmed Mir, in para no.11 that, “the compassionate appointment is an exception to the general rule. Normally, an employment in the Government or other public sectors should be open to all eligible candidates who can come forward to 5 apply and compete with each other. It is in consonance with Article 14 of the Constitution. On the basis of competitive merits, an appointment should be made to public office. This general rule should not be departed from except where compelling circumstances demand, such as, death of the sole breadwinner and likelihood of the family suffering because of the setback. Once it is proved that in spite of the death of the breadwinner, the family survived and substantial period is over, there is no necessity to say “goodbye” to the normal rule of appointment and to show favour to one at the cost of the interests of several others ignoring the mandate of Article 14.” In the present case, also a bread earner in the family expired in the year 1997. The application was moved for the appointment on compassionate ground, which was rejected in the year 1999, and after 10 years, the present writ petition is filed i.e. after total 12 years after the death of the bread earner in the family. 6. In the premise, the writ petition suffers from unexplained delay and laches, hence devoid of any merit. Hence, the writ petition stands dismissed with no order as to costs. (A.V.POTDAR, J.) (P.V.HARDAS, J.) khs/AUGUST 2009/wp5552-09 6