Government Resolution imposing ban on fresh recruitment will not apply to the appointments made on compassionate basis: Bombay High Court

 on 02 08 2021 on 22 03 ppn 1 8.wp 4673.19.docIN THE HIGH COURT OF JUDICATURE AT BOMBAYCIVIL APPELLATE JURISDICTION WRIT PETITION NO.4673 OF 2019Sunil Gundu Desai.. Petitioner VersusThe State of Maharashtra & Ors... Respondents Mr.Chetan G. Patil a w Mr.Mandar G. Bagkar for the petitioner. Mrs.P.J. Gavhane AGP for the respondent nos.1 & 2 State. CORAM : R.D. DHANUKA R. I. CHAGLA JJ. DATE : 30th JULY 2021(through video conferencing) Judgment: .The petitioner seeks leave to amend to delete the respondentnos.3 & 4. Leave to amend is granted. Amendment to be carried outwithin one week from today. 2.Rule. Learned AGP waives service for the respondents.Heard finally by consent of parties. 3.By this petition filed under Article 226 of the Constitution ofIndia the petitioner is seeking a writ of certiorari for quashing and settingaside the impugned order dated 31st March 2018 passed by therespondent no.2 refusing to grant approval to the appointment of thepetitioner on the post of a peon in the Sahyadri Vidyalaya Schoolfrom 1st October 2014 with all consequentialbenefits. on 02 08 2021 on 22 03 ppn 2 8.wp 4673.19.doc4.The father of the petitioner who was working in the saidschool died on 30th July 2014. The petitioner had approached therespondent nos.3 & 4 on 26th August 2014 requesting that he should beappointed on the post of peon on compassionate basis. The said schoolappointed the petitioner on the post of a peon w.e.f. 1st October 2014vide order dated 25th September 2014. The respondent nos.3 & 4submitted a proposal for approval to the respondent no.2 EducationOfficerof this Court dated 13th February 2019 in the case ofSuraj Uttam Kamble Vs. State of Maharashtra & Ors. He submits thatthis Court has considered the similar Government Resolution andparticularly the one imposing ban dated 2nd May 2012. This Court has on 02 08 2021 on 22 03 ppn 3 8.wp 4673.19.docdecided the issue of applicability of the said Government Resolution tothe appointments made on compassionate basis and referred to priordecision in Writ Petition No.7507 of 2016 dated 11th December 2018 inparagraph 10 of the said judgment : “10.The question of applicability of GR dated 2 5 2012 toappointments on compassionate basis was subject matter ofconsideration in Writ Petition No.7507 2016 decided by thisCourt on 11th December 2018 to which one of uswas a party. We may refer to the relevantportion of paragraph 12 of the decision of this Court whichreads thus : “12. However in the Writ petition as also in theaffidavit in rejoinder it is reiterated that it isimpossible to sustain this ground of refusal. Theappointment on compassionate basis is made in termsof a Government circular dated 31st December 2002.That has not been superseded by this subsequentGovernment Resolution and particularly the oneimposing ban dated 2nd May 2012. In fact suchappointments were kept out of the purview of thegeneral ban imposed on recruitment. The very objectin all such appointments enables the StateGovernment to carry forward its earlier policy despitethe overall ban on recruitment and appointment.”6.It has thus been held that the prior decision dated 11thDecember 2018 squarely applies to the facts of the case grantingapproval to the appointment of the petitioner on the post of a ShikshanSevak since the date of his appointment with all consequential benefits.Such appointments were kept outside the purview of the general banimposed on recruitment. He has accordingly submitted that the saiddecision applies to the facts of this case. on 02 08 2021 on 22 03 ppn 4 8.wp 4673.19.doc7.We have considered the facts of the present case as well asthe judgment of the Division Bench of this Court in the case of SurajUttam Kamblewhich has relied upon the Bench’s earlierdecision in Writ Petition No.75016 dated 11th December 2018. Itis made clear from the said decision that appointment on compassionatebasis were kept outside of the purview of the general ban imposed onrecruitment by Government Resolution dated 2nd May 2012. This wouldapply also to the subsequent Government Resolution dated 12th February2015 which is the sole basis of the impugned order in the present case.Thus the said Government Resolution imposing ban on fresh recruitmentwill not apply to the appointments made on compassionate basis. Thevery object in all such appointments is to enable the State Government tocarry forward its earlier policy despite the overall ban on recruitmentand appointment. We are of the view that this petition is covered by thejudgment in the case of Suraj Uttam Kamble (supra). Although thelearned AGP appearing for the respondent nos.1 & 2 tried to defend theimpugned order there is no merit in the submission made by the learnedAGP. 8.We therefore pass the following order : (i)The impugned order dated 31st March 2018 is quashed and setaside.(ii)The respondent no.2 Education Officer is directed to grantapproval to the appointment of the petitioner on compassionate basis onthe post of peon in the said school w.e.f. 1st October 2014 with allconsequential benefits within a period of four weeks from the date of thisorder. on 02 08 2021 on 22 03 ppn 5 8.wp 4673.19.doc(iii)Writ petition is disposed of in the above terms. Rule is madeabsolute. There shall be no order as to costs. R. I. CHAGLA J. R.D. DHANUKA J. 

Summary: Government Resolution imposing ban on fresh recruitment will not apply to the appointments made on compassionate basis, simply because, the very object in all such appointments is to enable the State Government to carry forward its earlier policy despite the overall ban on recruitment and appointment, held, a division bench of Justice RD Dhanuka and Justice RI Chaglwa while adjudicating the matter in Sunil Gundu Desai v. The State of Maharashtra and Others; [WRIT PETITION NO.4673 OF 2019].  The father of the petitioner who was working in the said school died on 30th July 2014. The petitioner had approached the respondent nos.3 &amp; 4 on 26th August 2014 requesting that he should be appointed on the post of peon on compassionate basis. The said school appointed the petitioner on the post of a peon w.e.f. 1st October 2014 vide order dated 25th September 2014. The respondent nos.3 &amp; 4 submitted a proposal for approval to the respondent no.2 Education Officer (Secondary). However, no decision has been taken for approval. The management and the said school again submitted the proposal for approval to the appointment of the petitioner. The respondent no.2 returned the said proposal for approval of the petitioner’s appointment by placing reliance on the Government Resolution dated 12th February 2015. Being aggrieved by the impugned order, the present petition has been filed. Learned counsel appearing for the petitioner invited our attention to the impugned order and submitted that the sole basis for not approving the appointment of the petitioner on the post of peon in the said school is on the basis of Government Resolution dated 12th February 2015 by which such appointments were banned. He submits that the said Government Resolution dated 12th February 2015 applies with prospective effect.