1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY : AURANGABAD BENCH WRIT PETITION NO. 1975 OF 2007 Kiran s/o. Sopan Sase, age 35 years, occ. nil, R/o. Sawali Society, Plot No. 38, Gulmohar Road, Sawedi, Ahmednagar. - - - - - Petitioner versus 1. The State of Maharashtra. 2. The Superintending Engineer, [Mechanical Division], Pune. 3. The Asstt. Superintending Engineer [Mechanical Division], Pune. 4. The Executive Engineer, [Mechanical Division], Nasik. - - Respondents Shri R. A. Tambe, Advocate holding for Shri P. S. Dighe, Advocate for the petitioner. Shri N. B. Patil, Asstt. Govt. Pleader for Respondents. CORAM : B. R. GAVAI & N. D. DESHPANDE, JJ. Reserved for orders on : 31st July 2009 Pronounced on : 11th August 2009 2 ORDER : [ Per N. D. Deshpande, J. ] 1. Rule. Rule made returnable forthwith. Heard by consent. 2. The petitioner above named filed this petition under Article 226 and 227 of the Constitution of India for a writ of mandamus to seek an appointment on compassionate ground and for appropriate direction to consider his candidature to the post of Junior Clerk upon death of his brother namely; Kishor Sopan Sase (since deceased) who was working as Junior Clerk with the Irrigation Department of the respondents and died on or about 24-2-2006 in an accident. 3. It was further urged to quash and set aside the communication dated 7-2-2007 issued by the respondents Nos.3 and 4 thereby rejecting the candidature for further consideration on compassionate ground as sought. The said communication dated 7-2-2007 has been impugned in this petition. 4. In order to substantiate his petition, it is further stated by the petitioner that deceased Kishor was the only earning member in the family and petitioner and his mother were solely dependent on the income of the deceased brother Kishor at the time of his death. Deceased Kishor, though married, was single when died after his wife 3 namely; Smt. Anuradha got divorce by mutual consent on or about 12-5-1999 and then she got remarried also. His mother did not claim any appointment on compassionate ground and also by separate application made to the Executive Engineer, Nashik Division, Nashik canvassed for appointment of the petitioner on compassionate ground in place of her deceased son on the foot of Government Resolution dated 20-10-1996. Petitioner thus fulfilled necessary criteria and also possessed required qualification namely; passed XII th Standard in the year 1991 and obtained Certificate of M.S. C.I.T. Course on 10-10-2006 and a Certificate of G.C.C. Board in Typing. Therefore, petitioner and his mother both requested the respondents for his appointment on compassionate ground vide application dated 20-3-2006 through his mother to the respondent No.3. Thereafter, petitioner submitted all relevant documents along with application on 25-7-2006, as sought from the office of respondent No.3 in support of his sole claim and, therefore, submitted document of divorce between deceased brother Kishor and his wife Anuradha and her affidavit for not claiming any benefit. Petitioner also stated that after her divorce, she got re-married and thus, her name was also struck off from the ration card of Sase family. His application was processed for his appointment on the compassionate ground. Petitioner placed reliance on the relevant communication dated 2-8-2006, which is 4 Exhibit F, received from the Office of Executive Engineer (Mechanical Division), Nashik. 5. On 7-2-2007, respondents Nos.3 and 4 informed that as per relevant Government Resolution dated 20-8-1996, petitioner was not eligible for being appointed on compassionate ground and filed his application. Therefore, a detailed representation was made reiterating the need of employment and highlighting his suitability and qualification to the said post and urged for reconsideration. 6. Heard both sides. Learned Counsel for the respondent vehemently opposed the petition stating that the case of the petitioner is not covered under the scheme for appointment on compassionate ground because the deceased was married and petitioner brother, therefore, was not totally dependent on him. 7. Shri Tambe, learned Counsel for the petitioner, submitted that after the divorce, the deceased brother cannot be said to be "married" and the legality of the divorce cannot be questioned in this petition when it is admitted fact that the divorcee of the deceased brother employee had re-married and her affidavit is filed on record to that effect, supporting petitioner's alleged claim for appointment on 5 compassionate ground and the couple had no issue out of the wedlock. The dictionary meaning of "Unmarried" - Its primary meaning is 'never having married', but it is a word of flexible meaning and it may be construed as not having a husband or wife at the time in question; e. g. widow or widower or divorcee. 8. However, in para 11 of the petition, petitioner has stated that his mother is aged, his sister got married and residing separately with him and further that petitioner has also got married and has to maintain his wife in order to show the dire need of employment. 9. Thus, it is seen that at the time of filing the petition, petitioner was married and, therefore, his case cannot be considered. The scheme is meant for only unmarried brother and sister of the unmarried deceased employee and they should be solely dependent on the deceased income. Shri Tambe, without any hesitation, further submitted that there is criminal prosecution pending against the petitioner during the course of hearing of this petition. 10. Appointment on compassionate ground is not a legal right. Considering these facts on record, and that the petitioner brother was married and, therefore, cannot be said to be dependent at the 6 relevant time of filing of the petition. Considering his marital status and pending criminal prosecution, no discretionary powers can be used under extra ordinary writ jurisdiction of this Court. No case is made out by the petitioner for such appointment in the Government employment. Petition being devoid of merits deserves to be dismissed. Hence dismissed. Rule discharged. ( N.D.DESHPANDE, J. ) ( B. R. GAVAI, J. ) pnk/wp197507