: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT PETITION NO.3606 OF 2006 WRIT PETITION NO.3606 OF 2006 WRIT PETITION NO.3606 OF 2006 1. Smt. Tulsabai Chandrakant Pawar (Paradhi) 1. Smt. Tulsabai Chandrakant Pawar (Paradhi) 1. Smt. Tulsabai Chandrakant Pawar (Paradhi) 2. Dipak Chandrakant Pawar (Paradhi) ...Petitioners. 2. Dipak Chandrakant Pawar (Paradhi) ...Petitioners. 2. Dipak Chandrakant Pawar (Paradhi) ...Petitioners. V/s. V/s. V/s. 1.Maharashtra State Road Transport 1.Maharashtra State Road Transport 1.Maharashtra State Road Transport & Anr. ...Respondents. & Anr. ...Respondents. & Anr. ...Respondents. Shri Amol B. Desai for the Petitioners. Shri Amol B. Desai for the Petitioners. Shri Amol B. Desai for the Petitioners. Shri G.S.Hegde for the Respondents. Shri G.S.Hegde for the Respondents. Shri G.S.Hegde for the Respondents. CORAM: B.H.MARLAPALLE & CORAM: B.H.MARLAPALLE & CORAM: B.H.MARLAPALLE & J.H.BHATIA, JJ. J.H.BHATIA, JJ. J.H.BHATIA, JJ. DATE : 24th November, 2006. DATE : 24th November, 2006. DATE : 24th November, 2006. P.C.: P.C.: P.C.: 1. Heard Shri Desai, the learned counsel for the 1. Heard Shri Desai, the learned counsel for the 1. Heard Shri Desai, the learned counsel for the petitioners. petitioners. petitioners. 2. The husband of the petitioner no.1 and the 2. The husband of the petitioner no.1 and the 2. The husband of the petitioner no.1 and the father of petitioner no.2, Late Shri Chandrakant Pawar father of petitioner no.2, Late Shri Chandrakant Pawar father of petitioner no.2, Late Shri Chandrakant Pawar (Paradhi) was in the employment of the (Paradhi) was in the employment of the (Paradhi) was in the employment of the Respondent-Corporation as a conductor and while in Respondent-Corporation as a conductor and while in Respondent-Corporation as a conductor and while in service, he died on 6-5-02 as a Tuberculosis patient. service, he died on 6-5-02 as a Tuberculosis patient. service, he died on 6-5-02 as a Tuberculosis patient. The petitioner no.1 submitted an application for The petitioner no.1 submitted an application for The petitioner no.1 submitted an application for compassionate appointment either for herself or for her compassionate appointment either for herself or for her compassionate appointment either for herself or for her son on 16-7-02. Subsequently, the Corporation called son on 16-7-02. Subsequently, the Corporation called son on 16-7-02. Subsequently, the Corporation called upon her to find out whether she would prefer to have upon her to find out whether she would prefer to have upon her to find out whether she would prefer to have her son on attaining his majority or her own case should her son on attaining his majority or her own case should her son on attaining his majority or her own case should : 2 : be considered for such employment vide its letter dated be considered for such employment vide its letter dated be considered for such employment vide its letter dated 8-11-02 and by her letter dated 26-12-2002, the 8-11-02 and by her letter dated 26-12-2002, the 8-11-02 and by her letter dated 26-12-2002, the petitioner no.1 communicated that her son’s case be petitioner no.1 communicated that her son’s case be petitioner no.1 communicated that her son’s case be considered for a compassionate employment on attaining considered for a compassionate employment on attaining considered for a compassionate employment on attaining majority, which he attained on 15-11-2004. By her majority, which he attained on 15-11-2004. By her majority, which he attained on 15-11-2004. By her representation dated 11-2-05, she reminded the representation dated 11-2-05, she reminded the representation dated 11-2-05, she reminded the corporation to appoint her son, petitioner no.2 on corporation to appoint her son, petitioner no.2 on corporation to appoint her son, petitioner no.2 on compassionate appointment as per the scheme framed by compassionate appointment as per the scheme framed by compassionate appointment as per the scheme framed by the Respondent-Corporation for the same. As there was the Respondent-Corporation for the same. As there was the Respondent-Corporation for the same. As there was no response, she has approached us. no response, she has approached us. no response, she has approached us. 3. The Respondent-Corporation has filed 3. The Respondent-Corporation has filed 3. The Respondent-Corporation has filed affidavit-in-reply and has not disputed the affidavit-in-reply and has not disputed the affidavit-in-reply and has not disputed the correspondence between the parties including the correspondence between the parties including the correspondence between the parties including the application dated 15-11-04 submitted by the petitioner application dated 15-11-04 submitted by the petitioner application dated 15-11-04 submitted by the petitioner no.1. Corporation has contested the claim for no.1. Corporation has contested the claim for no.1. Corporation has contested the claim for compassionate appointment on the grounds that compassionate appointment on the grounds that compassionate appointment on the grounds that disciplinary enquiry was initiated against late Shri disciplinary enquiry was initiated against late Shri disciplinary enquiry was initiated against late Shri Chandrakant Pawar for serious acts of misconduct Chandrakant Pawar for serious acts of misconduct Chandrakant Pawar for serious acts of misconduct involving the misappropriation of the Corporation’s involving the misappropriation of the Corporation’s involving the misappropriation of the Corporation’s revenue. The Domestic Tribunal had held him guilty and, revenue. The Domestic Tribunal had held him guilty and, revenue. The Domestic Tribunal had held him guilty and, therefore, he was issued with a second show-cause notice therefore, he was issued with a second show-cause notice therefore, he was issued with a second show-cause notice for the proposed dismissal from the service and instead for the proposed dismissal from the service and instead for the proposed dismissal from the service and instead of filing a reply, late Chandrakant Pawar approached the of filing a reply, late Chandrakant Pawar approached the of filing a reply, late Chandrakant Pawar approached the Labour Court and obtained the order of stay thereby Labour Court and obtained the order of stay thereby Labour Court and obtained the order of stay thereby restraining the Corporation from proceeding further and restraining the Corporation from proceeding further and restraining the Corporation from proceeding further and : 3 : more particularly, on proposed dismissal from the more particularly, on proposed dismissal from the more particularly, on proposed dismissal from the service. While this case was pending in the Labour service. While this case was pending in the Labour service. While this case was pending in the Labour Court, he died on 6-5-02 and,therefore, final action of Court, he died on 6-5-02 and,therefore, final action of Court, he died on 6-5-02 and,therefore, final action of dismissal could not be materialised. However, the dismissal could not be materialised. However, the dismissal could not be materialised. However, the competent authority issued the order on 19-9-02 competent authority issued the order on 19-9-02 competent authority issued the order on 19-9-02 declaring that the charges framed against him were declaring that the charges framed against him were declaring that the charges framed against him were proved. In short, the Corporation claims that the proved. In short, the Corporation claims that the proved. In short, the Corporation claims that the dismissal order was in offing after the Labour Court dismissal order was in offing after the Labour Court dismissal order was in offing after the Labour Court would vacate the stay and solely on account of his would vacate the stay and solely on account of his would vacate the stay and solely on account of his demise on 6-5-02, punishment of dismissal from the demise on 6-5-02, punishment of dismissal from the demise on 6-5-02, punishment of dismissal from the service could not be awarded against the late Shri service could not be awarded against the late Shri service could not be awarded against the late Shri Chandrakant Pawar. In the view of the Corporation, the Chandrakant Pawar. In the view of the Corporation, the Chandrakant Pawar. In the view of the Corporation, the petitioner’s claim for compassionate appointment could petitioner’s claim for compassionate appointment could petitioner’s claim for compassionate appointment could not be considered for two reasons, namely, first that not be considered for two reasons, namely, first that not be considered for two reasons, namely, first that there was the disciplinary enquiry pending against him there was the disciplinary enquiry pending against him there was the disciplinary enquiry pending against him and he was already issued a second show-cause notice for and he was already issued a second show-cause notice for and he was already issued a second show-cause notice for the proposed dismissal from the service. Secondly, the the proposed dismissal from the service. Secondly, the the proposed dismissal from the service. Secondly, the employee died on 6-5-02 and the petitioner no.2 attained employee died on 6-5-02 and the petitioner no.2 attained employee died on 6-5-02 and the petitioner no.2 attained the majority on 15-11-04. Under the scheme of the the majority on 15-11-04. Under the scheme of the the majority on 15-11-04. Under the scheme of the Corporation, reservation for the appointment on Corporation, reservation for the appointment on Corporation, reservation for the appointment on compassionate ground is not envisaged and , therefore, compassionate ground is not envisaged and , therefore, compassionate ground is not envisaged and , therefore, such claim could not be considered. such claim could not be considered. such claim could not be considered. 4. We have perused the circular dated 16-2-94 4. We have perused the circular dated 16-2-94 4. We have perused the circular dated 16-2-94 issued by the Respondent-Corporation setting out the issued by the Respondent-Corporation setting out the issued by the Respondent-Corporation setting out the guide-lines for appointment on compassionate ground and guide-lines for appointment on compassionate ground and guide-lines for appointment on compassionate ground and : 4 : the said scheme is applicable to the wards of the the said scheme is applicable to the wards of the the said scheme is applicable to the wards of the employees who died while on active duty. Late Shri employees who died while on active duty. Late Shri employees who died while on active duty. Late Shri Chandrakant Pawar died of tuberculosis though while in Chandrakant Pawar died of tuberculosis though while in Chandrakant Pawar died of tuberculosis though while in service but it could not be stated that he died while on service but it could not be stated that he died while on service but it could not be stated that he died while on active duty. In the said circular, there is also a active duty. In the said circular, there is also a active duty. In the said circular, there is also a provision for appointment on compassionate ground to the provision for appointment on compassionate ground to the provision for appointment on compassionate ground to the wards of the employees who die while in service but not wards of the employees who die while in service but not wards of the employees who die while in service but not on duty and there is some waiting period for a minor on duty and there is some waiting period for a minor on duty and there is some waiting period for a minor ward enabling him to approach the Corporation with a ward enabling him to approach the Corporation with a ward enabling him to approach the Corporation with a request to consider his case for compassionate request to consider his case for compassionate request to consider his case for compassionate appointment on attaining majority. Notwithstanding the appointment on attaining majority. Notwithstanding the appointment on attaining majority. Notwithstanding the said provision, we are satisfied that the petitioners’ said provision, we are satisfied that the petitioners’ said provision, we are satisfied that the petitioners’ case does not call for considerations for appointment on case does not call for considerations for appointment on case does not call for considerations for appointment on compassionate ground for the sole reason that punishment compassionate ground for the sole reason that punishment compassionate ground for the sole reason that punishment of dismissal was in the offing but for the stay granted of dismissal was in the offing but for the stay granted of dismissal was in the offing but for the stay granted by the Labour Court which was ex-parte, the order could by the Labour Court which was ex-parte, the order could by the Labour Court which was ex-parte, the order could not be issued before 6-5-02. We, therefore, do not find not be issued before 6-5-02. We, therefore, do not find not be issued before 6-5-02. We, therefore, do not find that this is an appropriate case to invoke our that this is an appropriate case to invoke our that this is an appropriate case to invoke our extraordinary powers under Article 226 of the extraordinary powers under Article 226 of the extraordinary powers under Article 226 of the Constitution of India and issue directions as prayed for Constitution of India and issue directions as prayed for Constitution of India and issue directions as prayed for appointment on compassionate ground against the appointment on compassionate ground against the appointment on compassionate ground against the respondents. respondents. respondents. 5. The Petition 5. The Petition 5. The Petition is, therefore, rejected summarily. : 5 : (J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.) (B.H.MARLAPALLE,J.) (B.H.MARLAPALLE,J.) (B.H.MARLAPALLE,J.)