In cases of compassionate appointment, the authorities must be sensitive and thoughtful: Bombay High Court

 on 15 06 2021 on 22 03 wp 1071 19.docIN THE HIGH COURT OF JUDICATURE AT BOMBAYCIVIL APPELLATE JURISDICTIONWRIT PETITION NO.1071 OF 2019Shri. Nikhil Maruti Gosarade)Age 31 years Occ. Nil )R o. ‘Shri Datta Kripa Banglow’ )Near Maheshwari Garden Mangal)Karyalaya New M.S.E.B. Dhamani)Road Vishrambag Sangli.)..PetitionerVersus1. The District Collector Sangli )Rajwada Chowk Sangli.)2. The District Collector Solapur)Solapur Tal. Mangalweda )Dist. Solapur)3. Division Commissioner)(Revenue) Sadhu Vaswani Council)Hall Pune Camp Pune Vidhan Bhavan)(Marathi) M.G. Road Pune.)..Respondents…..Mr.Abhijit Kulkarni i b Mr. Sachin Hande for Petitioner.Mr.Karan Thorat AGP for State.…..CORAM : SUNIL P. DESHMUKH &G. S. KULKARNI JJ.Reserved on : 5th MAY 2021 Pronounced on : 15th JUNE 2021.JUDGMENT:whereby thepetitioner’s Original Application No. 718 was rejected by thetribunal confirming an order dated 13 November 2017 passed byrespondent no.3 Divisional Commissionerrejecting thepetitioner’s application for compassionate appointment on a post fallingunder Class III.3.We note the relevant facts : In the year 1985 petitioner’s father Maruti GanpatGosaradeentered State Government service asa Clerk in the Office of District Collector at Sangli. As stated before thetribunal his entire service tenure was unblemished. By an order dated11 June 2013 issued in favour of late Maruti he was granted an ad hocpromotion to the post of Election Naib Tahsildarandwas so posted at Mangalweda District Solapur. On 7 December 2016 Maruti expired in harness in an accident. A certificate was alsoissued by the Tehsil office Mangalweda on 2 January 2017 certifying2 28 on 15 06 2021 on 22 03 wp 1071 19.docthat ‘late Maruti Election Naib Tahsildar expired while on duty’. 4.Late Maruti left behind him his legal heirs Smt.ShobhaMaruti Gosarade wife(widow) Mr.Nikhil Maruti Gosarade son(petitioner) and Sou. Nivedita Sachin Rajmane at Pune.Such application for compassionate appointment was made by thepetitioner without delay and or immediately after the death of his latefather Maruti. Respondent no. 3 however by a communication dated20 January 2017 rejected the petitioner’s application forcompassionate appointment recording that as his late father waspromoted as ‘Election Naib Tahsildar’ which was on a Group ‘B’ post asheld by him at the time of his death the petitioner was not eligible forcompassionate appointment. The reason being such appointment3 28 on 15 06 2021 on 22 03 wp 1071 19.doccannot be made when the employees who belong to Group ‘A’ and ‘B’ diein harness.5.The petitioner being aggrieved by such decision ofrespondent no. 3 approached the tribunal in Original Application no.5717. The tribunal by an order dated 18 September 2017disposed of the said proceedings whereby it quashed respondent no.3’sorder dated 20 January 2017 rejecting the petitioner’s application forcompassionate appointment and issued directions to the respondents todecide the case of the petitioner in the light of the decision of DivisionBench of the tribunal in the case of Shri Abhijeet Vishwas Mulik vs. TheDistrict Collector dated 18 February 2015 delivered in OriginalApplication No. 10912. The petitioner thereafter made furtherrepresentations dated 6 October 2017 14 October 2017 and 16October 2017 also enclosing therewith a copy of the tribunal’s order.6.By a fresh order dated 13 November 2017 passed byrespondent no.3 again petitioner’s application for compassionateappointment came to be rejected primarily on the same ground namely that the petitioner’s father at the time of his death was holding the postof Election Naib Tahsildar which was a Group ‘B’ post hence thepetitioner was not eligible for appointment on compassionate ground. 4 28 on 15 06 2021 on 22 03 wp 1071 19.doc7.Petitioner was of the firm opinion that it was notpermissible for respondent no. 3 to reject the petitioner’s application onthe same ground on which his application for compassionateappointment was earlier rejected on 20 January 2017. The petitionerhence filed a Contempt Petition before the tribunal however the samewas permitted to be withdrawn to enable him to file a substantiveoriginal application before the tribunal so as to challenge the freshdecision of respondent no.3 dated 13 November 2017. The petitioner accordingly filed the original application in question interalia prayingfor setting aside of the said order dated 13 November 2017 passed byrespondent no. 3 rejecting the petitioner’s application for compassionateappointment. He made a further prayer that a direction be issued to therespondents to grant appointment to the petitioner on a Class III post ofClerk Talati on compassionate ground.8.Case before the tribunal: The petitioner contended that the reason for rejection of hisapplication for compassionate appointment namely that the petitioner’sfather was working on a Group ‘B’ post was not only wholly erroneousand illegal but was also contrary to the record. He contended that hisfather late Maruti substantively belonged to a non gazetted post in5 28 on 15 06 2021 on 22 03 wp 1071 19.docGroup ‘C’ as he was promoted as Election Naib Tahsildar purely on ad hoc basis which was ex facie clear from the promotion order dated 11June 2013 issued to him. He contended that as the promotion grantedto his late father was not a regular promotion but a mere ad hocpromotion there was no vested right in the petitioner’s father toregularly hold the said promotional post in the absence of a regularpromotion order. The petitioner contended that also the ad hocpromotion order dated 11 June 2013 issued to his late father did notrefer to any pay scale in which the salary could be drawn. Hecontended that the specific conditions as set out in the said promotionorder for the ad hoc promotion to be regularised never materialized.According to the petitioner the cumulative effect of all such factors necessarily is to the effect that the petitioner’s father at the time of hisdeath was holding a post and or was an employee in the Group ‘C’cadre. The petitioner hence contended that he was entitled to claim acompassionate appointment in the Group ‘C’ post. In the alternative the petitioner also contended that the post of Naib Tahsildar was not agazetted post as also seen from the promotion order. The petitioneralso contended that as observed by the tribunal the petitioner’s casewas fully covered by the decision of the tribunal in Shri AbhijeetVishwas Mulik case which has been completely overlooked and or givena go by by respondent no.3 although there was a specific direction to6 28 on 15 06 2021 on 22 03 wp 1071 19.docthat effect in the earlier order passed by the tribunal on the petitioner’soriginal application. Although there were other grounds of challenge we need not detail them having already set out the principal grounds as asserted by the petitioner. 9.Respondent no.3 contested the original application by filinga reply affidavit of Dagadu Sukhdev Khumbar working as Tahsildar(Revenue) in the office of Divisional Commissioner Pune Division Pune. As to how a Tahsildar could file an affidavit when the decisionwas taken by respondent no.3 is another question as at least from therecord we do not find anything which precluded respondent no.3 to filean affidavit to justify his decision. Be that as it may by the affidavit itwas interalia contended that the petitioner’s father belonged to Group‘B’ post of Naib Tahsildar as the general promotion order dated 11June 2013 for certain names(which included thepetitioner’s father at Serial No.7) specifically set out that suchcandidates were promoted on regular basis. It was contended that asper Government Resolution dated 13 November 1998 the post of NaibTahsildar was declared as Group ‘B’ post. While dealing with thepetitioner’s contention that it was only an ad hoc promotion grantedvide promotion order dated 11 June 2013 issued in favour ofpetitioner’s late father the respondent’s case was that the petitioner’s7 28 on 15 06 2021 on 22 03 wp 1071 19.doclate father was granted temporary ad hoc promotion for 11 months asper the routine procedure and for the reason that petitioner’s fatherwas not reverted back to the Group ‘C’ post after 11 months it ought tobe presumed that he was holding a Group B post. It was furthercontended that the petitioner’s father also availed all benefits of aGroup ‘B’ officer w.e.f. 1 January 2010namely that a contribution of Rs.480 per month was deductedtowards the group insurance benefit which was also availed by hisfamily. On the petitioner’s case that relief be granted to him relying onAbhijeet Vishwas Mulik’s case(supra) as directed by the tribunal in itsprevious order the reply was nothing short of accepting such plea of thepetitioner. The peculiar reply was that although Abhijeet’s case wassimilar to the petitioner’s case however in the said case the tribunal’sorder was challenged before this Court in Writ PetitionNo. 1820 of2018 and the directions of the High Court to comply with tribunal’sorder were accepted.Tribunal’s Order : 10.Considering the rival contentions the tribunal rejected thepetitioner’s original application. The fulcrum of the tribunal’s reasoningbeing that the petitioner’s late father was a Group ‘B’ officer for the8 28 on 15 06 2021 on 22 03 wp 1071 19.docreasons interalia as set out in paragraphs 18 to 20 which read thus:“18.Perusal of the record produced by the Respondent No.3 shows asunder:(a)The deceased was considered during the meeting of the DPCon 10.09.2012. The Minutes of the Meeting identified 26vacant posts and proposed names of Awal Karkun andMandal Adhikari to the rank of Naib Tahasildar.(b)According to the same the deceased was promoted onregular post and his name figures at Serial No.31.(c)He has been promoted and was drawing the salary in the newpay scale of Rs.9300 34800 with grade pay of Rs.4300 fromthe date of his promotion till his expiry. His last basic salarywas Rs.13989 + 4500 . His total period in this particularpay scale was for more than four years on a continuous basiswithout any break till be expired. He has also been given theGroup Insurance available to Group ‘B’ category.19.Available record confirms that the deceased was workingas Naib Tahasildar in the pay scale of Rs.9300 34800 with Rs.400 as grade pay. He received the Group Insurance amount ofRs.4 80 000 .20.For the reasons above stated it is clear that the deceasedGovernment servant was Group ‘B’ officer. The G.R. dated 22nd August 2005 states that the legal heirs of Group ‘C’ and Group ‘D’ are entitled forcompassionate appointment. The prayer made by the applicant toconsider him for the compassionate appointment is therefore rejected.The Original Application is dismissed with no order as to costs.”SUBMISSIONS11.Mr.Kulkarni learned counsel for the petitioner in assailingthe impugned order would submit that the very foundation of thetribunal’s reasoning to hold that the petitioner’s late father was a GroupB employee is wholly contrary to the record hence perverse. It issubmitted that it was ex facie clear from the promotion order dated 11June 2013 as issued to the petitioner’s late father that the promotion9 28 on 15 06 2021 on 22 03 wp 1071 19.docgranted to him to the post of Election Naib Tehsildar was an ad hocpromotion as clause 4(1) of the promotion order recorded that thepromotion was merely of a temporary nature for 11 months or till theexpiry of the period of supernumerary post of the candidates sponsoredby the Maharashtra Public Service Commission or till the retirement ofthe concerned employee whichever occurs earlier. It is submitted thatthe ad hoc nature of the promotion was also clear from Clause 4(4) ofthe promotion order which recorded that the said promotion is beinggranted subject to the final approval of the Maharashtra Public ServiceCommission to the regular select list. According to Mr.Kulkarni suchclauses in the promotion order could not have been ignored by thetribunal to hold that the petitioner’s late father was regularly promotedto record a finding that he was holding a post in Group ‘B’ at the time ofhis death. It is next submitted that the ad hoc nature of the promotionorder could also be clearly seen from the fact that it did not specify anypay scale. He submits that mere receipt of the salary in the pay scale ofthe said promotional post could not have resulted into an automaticconferring of a regular promotion in the Group ‘B’ post. It is submittedthat there was no order or any other material on record which wouldshow that the effect of the ad hoc promotional order dated 11 June2013 issued to the petitioner’s late father stood obliterated and orsubstituted by a regular promotion order. It is next submitted that the10 28 on 15 06 2021 on 22 03 wp 1071 19.docrespondents reliance on the general promotion orderto contend that as the petitioner’s late father was placed at serialno.7 under the heading “regular promotion” he was regularlypromoted was also misconceived and contrary to the very document inasmuch as in clause 4(1) and 4(4) of the said order itself providedthat the promotion was purely on temporary basis for a period of 11months or till the expiry of the period of supernumerary post of thecandidates sponsored by the Maharashtra Public Service Commission ortill the retirement of the concerned employee whichever occurs earlier.It is submitted that identical conditions were incorporated in theindividual ad hoc promotion order dated 11 June 2013 issued to thepetitioner’s late father. Mr.Kulkarni would submit that in the absence ofany regular promotion order issued to him the petitioner’s fatheralthough was granted an ad hoc promotion to the Group B post hecontinued to belong to the Group ‘C’ and not in Group ‘B’ post. Hewould hence submit that the petitioner was entitled to apply for acompassionate appointment in the Group ‘C’ post. As regards thejudgment of the Division Bench of the tribunal in Shri.Abhijeet VishwasMulikthe tribunal has correctlyobserved that a regular promotional exercise which was undertaken bythe respondents to promote the petitioner’s late father on the Group ‘B’post of Naib Tahasildar. It is submitted that even the pay scale whichwas drawn by the petitioner’s late father was of the promotional post as also the group insurance facility came to be availed by him and thebenefits of the same were granted to the petitioner’s family. It is next12 28 on 15 06 2021 on 22 03 wp 1071 19.docsubmitted that the petitioner’s case cannot be compared with AbhijeetVishwas Mulik’scase as in the said case only because this Courthad confirmed the orders passed by the tribunal holding that thedeceased was granted ad hoc promotion as Naib Tahasildar the benefitwas granted to the applicant therein. Mr.Thorat however would notdispute that there is no material to indicate that the ad hoc promotionorder dated 11 June 2013 issued to the petitioner’s father was neithersubstituted nor was confirmed by issuance of a regular promotionalorder. He would also not dispute that clauses 4(1) and 4(4) of the saidpromotion order clearly provided that the promotion was purely on ad hoc basis. He would also not dispute that even the general promotionorder dated 11 June 2013 had also incorporated clauses at the bottomof the list without making exception to any names referred to in the list to record that the promotions were purely ad hoc basis. He would alsonot dispute that the wordings of clause 4(1) and 4(4) of the saidgeneral order indicating adhoc promotion were identical to the oneincorporated in the individual promotion order issued in favour of thepetitioner’s late father.Reasons and Conclusion13.Having heard learned counsel for the parties and havingperused the record we may at the outset observe that the petitioner’s13 28 on 15 06 2021 on 22 03 wp 1071 19.docfather Maruti Gosarade died in harness on 7 December 2016 andimmediately after his passing away the petitioner made an applicationon 22 December 2016 for appointment on compassionate ground. Suchapplication suffered its first rejection at the hands of respondent No.3on 20 January 2017 on the ground that the petitioner’s late fatherbeing a government servant in the Group ‘B’ categorythe petitioner would not be eligible to apply for compassionateappointment as an appointment on compassionate ground ispermissible only of an eligible family member of a Group ‘C’ and ‘D’employee who dies in harness. Such reason as set out in the saidPune Division reads thus: “As per information given by you by the letter under reference Maruti Ganpati Gosrade expired on the date 07 12 2006 in accident while working at Election Nayab Tahasildar Mangalvedha Dist.Solapur. It is requested to give appointment on compassionate groundto Shri. Nikhil Maruti Gosrade by the letter under reference. However as per the Government Resolution No. 1004 M.No.51 2004 Eight dated 22 08 2005 the appointment on compassionate ground isadmissible only to the eligible family members of Group C and D employees only who have expired during service. As Late MarutiGanpati Gosrade was working as Election Nayab Tahasildar and as theNayab Tahasildar cadre belongs to Group B you request can not begranted. 14 28(Signature Illigible)(Sudhakar Telang)Deputy Commissionerwith a further direction that a fresh decisionbe taken by respondent No.3 in the light of the tribunal’s decision in thecase Shri. Abhijeet V. Mulik versus the Collector of Kolhapur. Thetribunal’s order in the present facts has a significant relevance requiringit to be noted. It reads thus: “Heard Mr.M.B.Kadam the learned Advocate for the Applicantand Ms.N.G.Gohad the learned Presenting Officer for theRespondents.This OA brought by the heirs and LRs of the deceased NaibTahasildar can be disposed of here and now.The Applicant is the son of the said deceased. The saiddeceased died on 7th December 2016. The reason why the request forenlisting his name came to be rejected was vide Exh.’F’and the ground was that he was a Group ‘B’ Officer(Non gazetted) while the said entitlement is only to the heirs and LRsof Group ‘C’ and Group ‘D’ employees. After some debate at the Barwhere my attention was invited to a Judgment rendered by thisTribunal presided over by me in OA 1008 2016and in order to facilitate the said Respondent to proceed inthe matter in accordance herewith Exh.’F’ dated 20.1.2017stands quashed and set aside. Compliance within eight weeksfrom today and the Applicant be informed of its outcome within one15 28 on 15 06 2021 on 22 03 wp 1071 19.docweek thereafter. The OA is allowed in these terms with no order as tocosts.”15.Perusal of the above order of the tribunal clearly indicatesthat the tribunal noted that the only ground on which the request of thepetitioner was turned down by respondent no.3 was on account of thefact that the petitioner’s late father was a Group ‘B’ officer on the basisof the promotion order issued to him on 11 June 2013 which was in factan order granting ad hoc promotion. The petitioner had categoricallycontended that promotion of his late father was an ad hoc promotion.He also contended that the tribunal had considered a similar case indeciding the application filed by Abhijeet Vishwas Mulikhence his case was squarely covered by such decision. It is in thesecircumstances the tribunal disposed of the original application with adirection to the respondent to consider such facts and that a decision betaken considering Abhijeet Vishwas Mulik’s caseand take a decisionand accordingly quashed the order impugned therein dated 20 January2017by the16 28 on 15 06 2021 on 22 03 wp 1071 19.docimpugned order dated 13 November 2017 issued by respondent no. 3 Divisional Commissioner Pune Division Pune surprisingly on identicalreasons as contained in the first rejection which in fact were set asideby the tribunal by its order passed on the petitioner’s first originalapplication. The said order reads thus:Letter bearing No. Rev. Estt. 3 WS 31 2017 dated20.01.2017 of this Office.2) Decision dated 18.09.2017 given in the Original Application No.574 2017 filed before the Hon ble Maharashtra AdministrativeTribunal.3) Applications dated 06.10.2017 14.10.2017 and 16.10.2017 madeby Shri Nikhil Maruti Gosrade residing at New M.S.C.B. DhamaniRoad Dutt Kripa Bungalow Near Maheshwari Garden MangalKrayalaya Sangli.ORDER:On the date 18.09.2017 the Hon ble Tribunal has givenfollowing decision in the Original Application No. 574 2017 filedbefore the Maharashtra Administrative Tribunal by Shri. Nikhil MarutiGosrade against the reply given by this office under the letter dated20 01 2017 referred to at Sr. No. 1 in the preface.The Original Application No. 1008 2016 has been allowed.The Hon ble Tribunal has directed that the decision in the matter of theApplicant should be taken as per the instructions dated 18.07.2017given in the matter viz. Shri. Abhijeet V. Mulik versus the Collector ofKolhapur mentioned therein and has cancelled the letter dated20.1.2017 of this Office referred to at Sr. No. 1 in the Preface. In pursuance of the said decision on the dates 06.10.2017 14.102017 and 16.10.2017 Shri. Nikhil Maruti Gosrade has madeapplications to this Office and has requested therein to take an actionto give an appointment on compassionate basis as per the decision17 28Office of the Divisional Commissioner Pune Division Vidhan Bhavan Pune.No. Rev. Estt. 3 S.R. 18 Pune Date: 13.11.2017 on 15 06 2021 on 22 03 wp 1071 19.docgiven by the Hon ble Maharashtra Administrative Tribunal.While granting promotion to Late M.G. Gosrade in N.T. Cadreunder this Office Order dated 11.06.2013 it has been mentionedtherein that the said promotion shall be for the period of 11 months ortill expiry of the period of most of the posts of the candidatessponsored by the Maharashtra Public Service Commission or tillretirement of the persons concerned whichever is earlier. M. G.Gosrade expired on the date 07.12.2016 and prior to that he wasworking on the post of Nayab Tahasildar.As per the Government Resolution Revenue and ForestDepartment No. RCT 1095 M. No. 230 E 7 dated 13 11 1998 it hasbeen notified for giving the status as Gazetted Officer Group B to allthe posts in Nayab Tahasildar Cadre. Therefore prior to death Late.Gosrade was the Gazetted Officer Group B in the Nayab TahasildarCadre.By the Government Resolution Finance Department dated2 8 2010 Changes have been made from the date 1 1 2010 in therate of monthly Contribution of the State Government EmployeesGroup Insurance Scheme and the benefits to be received therefrom. Asper the said Government Resolution it has been fixed to recover thecontribution of amount of Rs. 480 from the monthly salary of theConcerned officer from the date 0101 2010 for Group ‘B’. Accordingly if the contributor in this Scheme dies while being in GovernmentService the insurance amount to be paid to the family members hasbeen fixed as Rs. 4 80 000 and accordingly the insurance amount ofRs. 4 80 000 has been paid to the heirs of Late Gosrade on the date29 12 2016. Thus he has been given the benefit to be received forthe post of Nayab Tahasildar Gazetted Officer Group ‘B’.In the decision given on the date 18 9 2017 by the Hon’bleTribunal in the matter of Original Application No. 574 2017 it hasbeen mentioned that the decision in the matter of Shri. Nikhil Gosradeshould be taken in pursuance of the instructions given in OriginalApplication No. 1008 2016and 4(4) of the promotionalorder issued to the petitioner’s father. The official translation of clauses4(1) and 4(4) reads thus: “04.Terms and Conditions in respect of promotion.1)This promotion list is merely of temporary nature. Thepromotion of the employees in the Ad hoc promotion list shall be for11 months or till the expiry of the period of supernumerary post of thecandidates sponsored by the Maharashtra Public Service Commissionor till the retirement of the concerned employee whichever occursearlier.… .. .. 4)The said promotion is being given subject to the final approvalof the Maharashtra Public Service Commission to the regular selectlist.”The above clauses identically appeared in the general promotionorder dated 11 June 2013.19.It is thus difficult to fathom as to how such specific clausesappearing in the said promotional order issued in favour of thepetitioner’s late father as also contained in the general promotionorder issued on 11 June 2013 could be discarded by the tribunal. Toread the general promotion order dated 11 June 2013 conferringregular promotion to the petitioner’s late father also cannot be acceptedfor two reasons firstly for the reason that it contained Clauses 4.1 and4.4 which were applicable to all categories of candidates whose names20 28 on 15 06 2021 on 22 03 wp 1071 19.docwere specified in the said order which showed that the promotionsmade by such order were purely ad hoc. Secondly although suchgeneral promotion order was issued however a specific promotionorder of the even date was issued in favour of the petitioner’s latefather incorporating Clauses 4.1 and 4.4which unequivocallyindicated that the promotion as granted to the petitioner’s late fatherwas ad hoc and not a regular promotion. Most significantly it was thisorder of ad hoc promotion which was acted upon for all materialpurposes as clear from the record. Thus merely categorizing petitioner’slate father under the heading ‘regular promotion’ in the secondpromotion order was not sufficient to hold that he was regularlypromoted. The general promotion order was required to be read in itsentirety alongwith its clauses which indicated that the entirepromotions as made therein by the said order were ad hoc. We also findthat there is no material whatsoever on record as also fairly concededby the learned AGP that the ad hoc promotional orderwas never substituted by issuance of a regular promotionalorder. It is also not in dispute that the name of petitioner’s late fatherqua such promotion was never notified in any final list of regularlypromoted candidates which would show that in reality he was neversubstantively promoted to the Group ‘B’ post and was kept as an ad hocpromotee. Merely providing a pay scale of a higher post without a21 28 on 15 06 2021 on 22 03 wp 1071 19.docregular promotion would not bring about a situation that the legalcharacter of an ad hoc promotion order would get transformed into a‘regular promotional order’. In other words in the present case unlessthere was to be a conscious act or a decision in law to regularlypromote by issuance of a regular promotion order in favour ofpetitioner’s late father by no stretch of imagination and or by applyingany standard it could have been held that the ad hoc promotion stoodconverted into a regular promotion. In regard to the emoluments thelaw would require that if an employee is posted on a particular posteven temporarily or ad hoc he would be entitled to draw the pay scaleand benefits of such post till he continues to hold such post on theprinciple of equal pay for equal work. The petitioner’s late father beingpaid the salary or the pay scale of Naib Tahasildar could not have beenany indicia of his regular promotion to the post of Naib Tahasildar inthe absence of a regular promotional order issued in his favour. Thetribunal has completely ignored these basic facets by inappropriatelyconstruing the ad hoc promotional order as issued to petitioner’s latefather to be a regular promotion.20.In our clear opinion the tribunal’s interpretation of the ad hoc promotional order dated 11 June 2013 results in attributing adifferent meaning from what was actually provided by Clauses 4(1) and22 28 on 15 06 2021 on 22 03 wp 1071 19.doc4(4) of the said promotional order amounting to a patent perversity.This is thus a case wherein respondent no.3 for reasons best known tohim completely misconstrued and misinterpreted the promotion orderdated 11 June 2013 by reading it to be a regular promotion beinggranted to the petitioner’s late father. The tribunal could not havemechanically and or without applying its mind to the plain and clearmeaning of the said clauses of the promotional order dated 11 June2013 confirmed such decision of respondent no. 3. The judicial burdenand responsibility on the tribunal was certainly rigorous andinsurmountable when the petitioner knocked its door complaining ofbrazen arbitrariness of respondent no.3.21.There is yet another significant aspect of the matter namelythat in the earlier order passed by the tribunal on the first originalapplication filed by the petitioner there was a clear direction to therespondents to consider the petitioner’s case as per the decision inAbhijeet Vishwas Mulik case. The tribunal had also set aside the veryreasoning as contained in the order communication dated 20 January2017in rejecting the petitioner’s application for compassionateappointment. In this regard we may observe that the reasoning as setout in the penultimate paragraph of respondent no.3’s order dated 13November 2017 in no manner amounted to compliance of the said23 28 on 15 06 2021 on 22 03 wp 1071 19.docdirections of the tribunal on the petitioner’s first original application.This for the reason that respondent no.3 on the same reasoning ascontained in the earlier order dated 20 January 2017 on completelyirrelevant considerations as also without application of mind and intotal disregard to the tribunal order for the second time rejected thepetitioner’s application. In our opinion the tribunal was also too casual in not interfering with the absolute mechanical and careless approach ofrespondent no.3 in issuing an order dated 13 November 2017. Theimpugned order passed by the tribunal could not have sustained suchillegality of respondent no.3. We thus feel that the petitioner was notwell advised to withdraw the contempt petition as in our clear opinion the order dated 13 November 2017 passed by the respondent no.3certainly did not comply with the tribunal’s direction and its clear andabsolute mandate namely that the petitioner’s application be decided inthe light of the observations of the Division Bench in Abhijeet VishwasMulik case which was confirmed by the Division Bench of this Court.From a reading of the penultimate paragraph of respondent no.3’sdecision dated 13 November 2017 a glaring perversity and disrespectby respondent no.3 to the tribunal’s order is apparent which ought tohave been severely deprecated by the tribunal. The reasons as set out byrespondent no.3 in the impugned rejection of the petitioner’sapplication are certainly of a nature which would shock the conscience24 28 on 15 06 2021 on 22 03 wp 1071 19.docof the Court when respondent no.3 in the penultimate paragraphalthough acknowledges that the tribunal had directed that thepetitioner’s application be decided as per the directions in Abhijit V.Mulik casehowever at the same time he brushes aside thesame saying that it is being challenged before the High Court. Inrespondent no.3 saying so in our opinion there are two aspects whichcannot be overlooked and or are required to be judicially noticed.Firstly what is apparent is the patent disregard shown by respondentno.3 to the orders passed by the tribunal and secondly a supposedlyclever manner and or a sharp practice adopted by respondent no. 3 towriggle out of the order of the tribunal on patently irrelevant orsenseless reasoning. Such approach was least expected from a highofficial who stood at the level of Divisional Commissioner that too inhandling a delicate issue namely of compassionate appointment. Suchobjectionable conduct on the part of the Divisional Commissioneramounted to playing with the livelihood of the petitioner’s family. Suchaspect has been completely overlooked by the tribunal in passing theimpugned order. We in fact wonder whether we should reopen thecontempt proceedings against respondent no. 3 when we have noticedthat the conduct of respondent no. 3 prima facie amounted to becontumacious. We however leave the issue at this. 25 28 on 15 06 2021 on 22 03 wp 1071 19.doc22.Now coming to the tribunal’s order in our opinion thetribunal ought to have followed the decision of the tribunal in the caseof Abhijeet Vishwas Mulikwhich was a case exactly similar tothe present case. This more particularly when the Division Bench of thisCourt in its judgment in Abhijeet Vishwas Mulikreferring to adecision of Aurangabad Bench of this Court in Dinesh s o ShamraoSonawane Versus The State of Maharashtra in Writ Petition No.5440 of2009 dated 5 February 2010 had held that an ad hoc and temporarypromotion does not entitle the promotee to claim status as Group ‘B’employee. This Court held that the original applicant’s late father inthe said case who had substantively held a Group ‘C’ post waspromoted purely on temporary basis for three months to a Group ‘B’post of Naib Tahasildar which was seen from the promotional order asappropriately recognized by the tribunal. It was observed that the verywording of the ad hoc promotional order itself was clear that it entailedautomatic termination after a certain period and it was subject to theapproval of the Maharashtra Public Service Commission. This Courthad also held that the tribunal was right in holding that the father ofthe original applicant thereinwasnot a Group ‘B’ employee in terms of the Government Resolution dated28 March 2001 and hence there was no bar to the consideration of thecase of the said respondent for appointment on compassionate basis.26 28 on 15 06 2021 on 22 03 wp 1071 19.docAs observed above in our opinion the petitioner was identically placedas in the case of Abhijeet Vishwas Mulik(SUNIL P. DESHMUKH)28 28 

Summary: In cases of compassionate appointment, not only the authorities but also the tribunal is required to be more careful, sensitive and live to the human considerations and adopt a cautious approach before denying benefit under the compassionate appointment, provisions. A division bench of Justice Sunil P Deshmukh and Justice G S Kulkarni, while adjudicating the matter in Shri Nikhil Maruti Gosarde v. The District Collector, [WP 1071 of 2019]; dealt with the issue of the grounds for compassionate appointment. In the year 1985, petitioner’s father entered State Government service, as a Clerk in the Office of District Collector at Sangli. As stated before the tribunal, his entire service tenure was unblemished. By an order dated 11 June 2013, issued in favour of late Maruti, he was granted an ad-hoc promotion to the post of Election Naib Tahsildar (a Group B post) and was so posted at Mangalweda, District Solapur. On 7 December 2016, Maruti expired in harness, in an accident. A certificate was also issued by the Tehsil office, Mangalweda on 2 January, 2017, certifying that ‘late Maruti-Election Naib Tahsildar, expired while on duty’. Late Maruti left behind him, his legal heirs wife(widow), son (petitioner) and daughter (married daughter). As a consequence of the sudden death of the sole breadwinner, late Maruti’s family was left in a financial crisis, affecting their very livelihood. In an attempt to tide over such crisis, the petitioner being the only family member who could take up an employment, submitted an application with the respondents for compassionate appointment on the post of “a Clerk” in the office of respondent no.2. Such application was made on 23 December, 2016. Another dated 28 December, 2016, was submitted by him in the office of respondent no. 3-Divisional Commissioner (Revenue Camp) at Pune. Such application for compassionate appointment was made by the petitioner without delay and/or immediately after the death of his late father Maruti. Respondent no. 3, however, by a communication dated 20 January, 2017, rejected the petitioner’s application for compassionate appointment, recording that as his late father was promoted as ‘Election Naib Tahsildar’, which was on a Group ‘B’ post, as held by him at the time of his death, the petitioner was not eligible for compassionate appointment. The reason being, such appointment cannot be made when the employees who belong to Group ‘A’ and ‘B’ die in harness. Thus, the writ petition was filed by the aggrieved in the instant case.