AJN 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1803 OF 2009 Ismail Akbar Gavandi, R/o. Behind Pushpak Theatre, Pushpak Nagar, Tal Shirol, District Kolhapur. ) ) ) ... Petitioner Versus 1. State of Maharashtra through the Secretary, Rural Development Department, Mantralaya, Mumbai – 400 032. ) ) ) ) 2. Kolhapur Zilla Parishad, Kolhapur. ) ) 3. The Chief Executive Officer, Kolhapur Zilla Parishad, Kolhapur. ) ) 4. The Executive Engineer (Works), Kolhapur Zilla Parishad, Kolhapur. ) ) ... Respondents Mr. N.V. Bandiwadekar for the petitioner. Mr. S.N. Bhosle, A.G.P. for the State. Mr. R.D. Rane for respondents 2 to 4. CORAM : SMT. RANJANA DESAI & A.A. SAYED, JJ. DATE ON WHICH THE JUDGMENT IS RESERVED : 23RD SEPTEMBER, 2009. AJN 2 DATE ON WHICH THE JUDGMEMT IS PRONOUNCED : 5TH OCTOBER, 2009. JUDGMENT.:- (Per Smt. Ranjana Desai, J.) 1. Rule. The respondents waive service. By consent of the parties, taken up for hearing forthwith. 2. The petitioner holds qualification of Diploma in Civil Engineering. His father Akbar Gavandi was in the employment of respondent 2 – Kolhapur Zilla Parishad. He expired while in service. The petitioner submitted application to the Zilla Parishad for appointment on compassionate grounds. As there was no positive response from respondent 2, the petitioner filed Writ Petition No.4608 of 1999 in this court. On 8/10/1999 the petition was disposed of in terms of minutes duly signed by the parties. The material portion of the said order reads as under: “2. Petitioner had applied to Respondent No.2 – District Collector, Kolhapur for appointment as Junior Engineer on compassionate ground. AJN 3 From the affidavit in reply filed on behalf of Respondent No.3 – Zilla Parishad, Kolhapur it is observed that the District Collector by his letter dated 16.11.1998 had forwarded Petitioner’s name to the Zilla Parishad along with the name of 3 other candidates for giving appointment on compassionate ground in the post of Junior Engineer. However, there are presently 3 vacancies but the same are reserved for backward class candidates and, therefore the Petitioner cannot be given appointment for the present. 3. Till the vacancy in open category in the post of Junior Engineer becomes available the Zilla Parishad, Kolhapur shall appoint Petitioner in the post of Mestry Grade II on compassionate ground. The said appointment of Petitioner shall be without prejudice to his claim for appointment to the post of Junior Engineer on compassionate ground. As and when such vacancy in open category would become available, the Zilla Parishad shall appoint Petitioner in the said vacancy. 4. The Respondent No.3 – Zilla Parishad shall give the appointment to Petitioner as Mestry Grade II within 2 weeks.” 3. The case of the petitioner is that vide G.R. dated 20/5/1999, the cadre of “Mestry Grade II” was abolished AJN 4 and the cadre of “Civil Engineering Assistant” was created. The said resolution directed that after issuance thereof, no appointments should be made in the posts which were abolished including the post of Mestry Grade II. The said resolution further directed that the persons working in such posts should be absorbed in the newly created cadre of Civil Engineering Assistant. The petitioner’s case is that though the Zilla Parishad was aware when order dated 8/10/1999 was passed that the post of Mestry Grade II was abolished, the Zilla Parishad agreed to appoint the petitioner to the said post with further concession that the said appointment of the petitioner shall be without prejudice to his claim for appointment as Junior Engineer and as and when vacancy in open category becomes available, the Zilla Parishad would appoint him in the vacancy of Junior Engineer. 4. On 8/11/1999, the petitioner was appointed as “Mestry Grade II”. According to the petitioner, thereafter several vacancies of the post of Junior Engineer were AJN 5 available but the petitioner was not appointed. The petitioner made several representations to the Zilla Parishad for that purpose. But the Zilla Parishad failed to appoint the petitioner to the post of Junior Engineer. The petitioner, therefore, filed Contempt Petition No.155 of 2001. The petitioner also filed Writ Petition No.6380 of 2004 for directions against the Zilla Parishad, inter alia, to absorb him in the cadre of Civil Engineering Assistant with retrospective effect from 8/11/1999 on which date he was appointed as Mestry Grade II together with arrears of salary from that date till the date of his absorption as Civil Engineering Assistant. This petition was filed on the basis of G.R. dated 20/5/1999 by which cadre of “Mestry Grade II” stood abolished. 5. The Zilla Parishad filed Review Petition No.20 of 2005 seeking review of the consent order dated 8/10/1999 passed in Writ Petition No.4608 of 1999. On 16/6/2005, this court recalled order dated 8/10/1999. This court observed that appointment on compassionate ground is AJN 6 made to tie over the difficulties faced by a family. This court noted that in Writ Petition No.4608 of 1999, there was a clear averment that the employment was required to mitigate the hardships due to the death of the bread earner, which implied that no member of the family was employed anywhere. This court noted that mother of the petitioner was employed in the Zilla Parishad as a teacher and continued to be in the employment of the Zilla Parishad. However, impression was given to the Zilla Parishad that no member of the family was gainfully employed. This court observed that the Zilla Parishad cannot be expected to get all the information from various sections where thousands of employees are employed. It was for the petitioner to give the correct information. This court observed that there is an error apparent on the face of record in the order of this court dated 8/10/1999 inasmuch as it has been passed on a representation that there was a need of appointing the petitioner, there being no bread earner in the family, which representation is not true. This court, therefore, recalled order dated AJN 7 8/10/1999 by recording the statement made on behalf of the Zilla Parishad that the Zilla Parishad will not disturb the petitioner’s present employment. This court directed that since there is no such post as Mestry Grade II in the Zilla Parishad, Zilla Parishad shall adjust the petitioner in an appropriate post comparable to the post of Mestry Grade II as per the establishment schedule. This court observed that the petitioner will be entitled to his promotions as and when any occasion arises for being upgraded. The Zilla Parishad was however relieved of its obligation to give the petitioner appointment as a Junior Engineer as agreed in the Minutes of Order. 6. In view of the order passed on the review petition, learned counsel for the petitioner made a statement that he is not pressing Writ Petition No.6380 of 2004 before this court and in view of the said statement, the said petition was disposed of as withdrawn on 16/6/2005. It is pertinent to note that in that writ petition, the petitioner had made similar prayer which he has made in this AJN 8 petition. 7. On 14/2/2006, on a statement made by the counsel for the petitioner, Contempt Petition No.155 of 2001 was dismissed as withdrawn. 8. Despite the above, the petitioner made representations praying that he may be appointed as Civil Engineering Assistant from the date of his initial appointment as Mestry Grade II. By order dated 13/7/2006, the petitioner came to be absorbed as Civil Engineering Assistant, carrying the pay scale of Rs. 4,000-100-6000. The petitioner was not satisfied by this as he wanted to be absorbed as Civil Engineering Assistant from the date of his appointment as “Mestry Grade II”. By order dated 13/8/2008, respondent 4, inter alia, informed the petitioner that as per G.R. dated 20/5/1999, unless the absorption of eligible employees in the seven cadres mentioned in the G.R. is complete, no direct recruitment can be made in the cadre of Civil AJN 9 Engineering Assistant. Being aggrieved by this order, the petitioner has approached this court seeking quashing of the said order and for a direction to respondents 2 to 4 to absorb the petitioner in the post of Civil Engineering Assistant on the establishment of respondent 2 – Zilla Parishad with retrospective effect from the date of his initial appointment along with consequential monetary benefits. 9. We have heard Mr. Bandiwadekar, learned counsel for the petitioner. He has reiterated the averments made in the petition and contended that the petitioner is entitled to the relief prayed for by him. 10. It is not possible for us to accept Mr. Bandiwadekar’s submission. In our opinion, the petitioner cold not have filed the instant petition making the above prayers because Writ Petition No.6380 of 2004 making similar prayers was withdrawn by him on 16/6/2005. Besides, we are not inclined to grant any relief to the petitioner in our AJN 10 writ jurisdiction considering the fact that the petitioner got himself appointed on compassionate ground without disclosing to this court that his mother was employed in the Zilla Parishad. This court in its order dated 16/6/2005 passed on Review Petition No.20 of 2005 filed by the Zilla Parishad observed that the appointment on compassionate ground is made essentially to tie over difficulties faced by a family on account of death of the bread earner. Nobody has a right to appointment on compassionate ground and nobody can insist that he should be appointed to any particular post. This court observed that mother of the petitioner was employed in Zilla Parishad and this fact was not disclosed in the petition. An impression was created that no member of the family was gainfully employed. It is in these circumstances that this court recalled its order dated 6/10/1999. Apart from the fact that on merits, the petitioner does not deserve to get any relief from us, in our opinion, his conduct disentitles him from getting any relief from us in our writ jurisdiction. Had he disclosed to AJN 11 this court that his mother was working in Zilla Parishad, he would not have been appointed on compassionate ground. On the contrary, averment was made in the petition that the employment was required to mitigate the hardships due to the death of the bread earner. We are not happy about the petitioner’s conduct. What is more distressing is the fact that the petitioner is not content with what he has got, but is attempting to get more benefits, which he is not entitled to. It is on account of this fairness shown by learned counsel for Zilla Parishad that his appointment was not disturbed. This is noted in order dated 16/6/2005 passed by this court. In the circumstances, we find no merit in this petition. 11. The petition is dismissed with costs. [SMT. RANJANA DESAI, J.] [A.A. SAYED, J.]