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CIVIL APPEAL NOS.409-410 OF 2015 (Arising out of S.L.P. (C) Nos. 20840-41/2014) Vijaya Ukarda Athor (Athawale) ..Appellant Versus State of Maharashtra and Ors. ..Respondents

REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLALTE JURISDICTION

CIVIL APPEAL NOS.409-410 OF 2015
(Arising out of S.L.P. (C) Nos. 20840-41/2014)
Vijaya Ukarda Athor (Athawale) ..Appellant

Versus

State of Maharashtra and Ors. ..Respondents

J U D G M E N T

R. BANUMATHI, J.

Delay condoned. Leave granted.
2. These appeals arise out of the impugned Order dated 18.03.2013
passed by the High Court of Bombay Bench at Nagpur, in W.P. No.1341 of 2013
and Order dated 22.11.2013 passed in the Review Application No.511 of 2013
in Writ Petition No.1341 of 2013, whereby the High Court dismissed the Writ
Petition and also the Review Application thereby declining to issue
direction to consider the case of the appellant for compassionate
appointment.
3. The issue relates to the compassionate appointment between the
rival claimants. Late Ukarda Athor (Athwale), who was working as a clerk
in Municipal Corporation, Amravati, had two wives namely Shantabai Ukarda
Athor and Kuntabai Ukarda Athor. He died on 18.06.1997. The appellant-
Vijaya Ukarda Athor (Athawale), is daughter of Late Ukarda Pundlikrao Athor
(Athawale) through the first wife, 3rd respondent is the son of Late Ukarda
Athor through the second wife. Smt. Shantabai Ukarda Athor, mother of the
appellant, filed a Regular Civil Suit No.40 of 2001 in the Court of Civil
Judge (Junior Division), Anjanagaon-Surji, Dist. Amravati, seeking for a
declaration being the legal heirs of deceased Ukarda Athor, they have the
right in the property, pension and funds of deceased Ukarda Athor and the
said suit was decreed by the judgement dated 15.01.2005. In the Succession
Case No.6/1998 Dated 24.09.2007 filed under Section 372 of the Indian
Succession Act, 1925, the Civil Judge (J.D.), Distt. Amravati, interalia,
ordered that the mother of the appellant would be entitled for the benefit
of the pension of the deceased. In the succession case, it was further
ordered that the appellant and her mother would be entitled to 1/4th share
each of total amount of GPF and other funds of Ukarda Athor. On 25.5.2009,
respondent No.3 moved an application seeking compassionate appointment. On
19.4.2012, the appellant filed an objection application, raising objection
for consideration of job application filed by respondent No.3 and
requesting the authorities not to give him the compassionate appointment.
The Municipal Corporation vide order dated 18.09.2012 appointed respondent
No.3- Sagar Ukarda thereby declaring the appellant ineligible for the
compassionate appointment as she has already got married.
4. Aggrieved by the order of non-grant of appointment, appellant
herein filed a Writ Petition No.1341 of 2013 before the High Court of
Bombay. Vide order dated 18.03.2013, the High Court dismissed the
aforesaid writ petition holding that on the date of appointment, the
appellant was a married daughter and the policy decision was taken by the
State Government on 26.2.2013 for grant of compassionate appointment to
married daughter and before the said date the appellant was not eligible
for any appointment. The appellant filed a review application before the
High Court which was also dismissed vide order dated 22.11.2013. In these
appeals, the appellant assails the above orders.
5. Learned counsel for the appellant contended that at the time of
death of her father Mr. Ukarda Athor (dated 18.06.1997) the appellant who
was then a minor, submitted an application seeking appointment on
29.12.1997 and again after attaining majority, the appellant sought
compassionate appointment for the post of clerk vide her application dated
19.03.1998, filed in a prescribed proforma. However, for a long time, no
appointments took place in the respondent-Corporation. It was also
submitted that appellant got married in 2009, but still she would take care
of the needs of her widowed mother and there is no bar for giving
compassionate appointment to a married daughter and rejecting the claim of
a married daughter who is otherwise suitable for seeking compassionate
employment defies any logic. It was submitted that the High Court did not
keep in view that the appointment has been sought on compassionate grounds
for the post of clerk ever since the death of appellant’s father as per the
well settled proposition laid down by the Supreme Court. It was contended
that the compassionate appointment given to respondent No.3, who is an
illegitimate son of the deceased-employee is not sustainable.
6. The learned counsel for the second respondent-Corporation
submitted that the appointment on compassionate ground cannot be claimed as
a matter of right but can be claimed only in terms of the Rules or
Regulations framed in this regard. Placing reliance upon the judgments of
this Court in the case of Shreejith L. vs. Deputy Director (Education)
Kerala and Ors., (2012) 7 SCC 248 and The Chief Commissioner, Central
Excise and Customs, Lucknow & Ors. vs. Prabhat Singh, 2013 (1) SCALE 506,
it was submitted that where the norms have been laid down for making
compassionate appointments, the same have to be strictly followed.
7. The learned counsel further submitted that when the application
for compassionate appointment was considered as per Government Resolution
dated 26.10.1994, only unmarried daughter was eligible to be considered for
compassionate appointment. Learned counsel urged that the State Government
has taken a Policy Decision only on 26.02.2013, as per which the married
daughters would also be eligible for consideration for the grant of
compassionate appointment subject to the fulfilment of certain conditions.
The learned counsel further contended that before 26.02.2013 since the
appellant was not eligible to be considered for compassionate appointment,
the High Court rightly dismissed the writ petition and the impugned orders
do not suffer from any infirmity warranting interference.
8. The learned counsel for the respondent No.3 submitted that even
though respondent No.3 is the son of a deceased employee out of second
wedlock and illegitimate child, yet there is no denying the fact that he
remains the son of deceased-Ukarda Athor and therefore, the respondent No.3
was entitled to the same treatment as is available to the child of first
marriage. It was submitted that as the illegitimate son of the deceased
the 3rd respondent is entitled to get appointment on compassionate ground
subject to the fulfilment of certain criteria as laid down by the
authorities and in consideration of the status of the respondent No.3 and
the Policy Decision of the State Government, rightly respondent No.3 was
given the appointment and the High Court rightly dismissed the writ
petition and also the review application and the impugned orders warrant no
interference.
9. We have carefully considered the rival contentions and perused
the impugned order and other materials on record.
10. The fact that the appellant is the daughter through the first
wife-Shantabai Athor and respondent No.3 is the son through the second wife-
Kuntabai Athor of Late Ukarda Athor are not in dispute. Ukarda Athor died
on 18.06.1997. According to the appellant, her mother submitted an
application dated 29.12.1997 stating that her daughter Vijaya Athor-
appellant who is aged seventeen years and then a minor studying in 10th
standard, should be given compassionate appointment when she attains
majority. According to the appellant after she attained majority she has
submitted another application on 19.03.1998, seeking compassionate
appointment; but for quite sometime, the same was not considered by the
authorities. The appellant was married in the year 2009. The contention of
the appellant is that her application for compassionate appointment was
kept pending by the authorities without any justifiable reason. But
according to the respondent No.2-Corporation, giving employment in
government service on compassionate ground was then governed by “Government
Resolution, General Administration Department, No.
Comp.1093/2335/M.No.90/93/Eight, dated 26 October, 1994”. As per the said
Resolution only the unmarried daughter of the deceased would be eligible
for the appointment as per Rules. Reliance is placed on clause (3)(a) of
Government Resolution which reads as under:
“(3) (a). Husband/wife, son or unmarried daughter of the deceased/
prematurely retired government employee OR son/unmarried daughter lawfully
adopted, before death/premature retirement, shall be deemed to be the
relatives eligible to be appointed as per rules. Except them, no other
relative shall get the benefit under this scheme.”
The State Government has taken a Policy Decision on 26.02.2013 and
held that the married daughters are also entitled for compassionate
appointment subject to certain conditions.
11. In our considered view, the questions viz.: (i) the effect of
“Government Resolution, General Administration Department, No. Comp.
1093/2335/M. No.90/93/Eight, dated 26.10.1994 and effect of Clause (3)(a);
(ii) the plea that the appellant submitted application on 29.12.1997 and
19.03.1998, that the same was not considered by the authorities for quite
sometime; (iii) at the time when the applications for compassionate
appointment was considered in 2012 whether 3rd respondent was eligible to
be considered; (iv) the effect of subsequent policy decision dated
26.02.2013 taken by the State Government as per which the married daughter
is also eligible to get compassionate appointment; and (v) such other
relevant questions which are to be examined. In our considered view,
instead of this Court examining the above questions, the matter is to be
remitted back to the High Court for considering the above questions in the
light of the facts and circumstances of the case.
12. In the result, the impugned Orders of the High Court in Writ
Petition No.1341 of 2013 dated 18.03.2013 and Review Application No. 511 of
2013 dated 22.11.2013 are set aside and the appeals are allowed and the
matter is remitted back to the High Court for consideration of the matter
afresh. The High Court shall give sufficient opportunity to the appellant
and the respondents and consider the matter afresh expeditiously and in
accordance with law.

………………………..J.
(V. Gopala Gowda)

………………………..J.
(R. Banumathi)
New Delhi;
January 14, 2015

ITEM NO.1B-For Judgment COURT NO.11 SECTION IX

S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (C) No(s). 20840-20841/2014

(Arising out of impugned final judgment and order dated 18/03/2013 in WP
No. 1341/2013,22/11/2013 in MA No. 511/2013,22/11/2013 in WP No. 1341/2013
passed by the High Court Of Bombay At Nagpur)

VIJAYA UKARDA ATHOR(ATHAWALE) Petitioner(s)
VERSUS
STATE OF MAHARASHTRA AND OTHERS Respondent(s)

Date : 14/01/2015 These petitions were called on for pronouncement of
JUDGMENT today.

For Petitioner(s) Mr. Sanjai Kumar Pathak,Adv.
Mr. Ashish Kumar Sinha, Adv.
Mr. Arpit Rai, Adv.

For Respondent(s) Mr. Shankar Chillarge, Adv.
Mr. Aniruddha P. Mayee,Adv.

Mr. Suhas Kadam, Adv.
For M/s Lemax Lawyers & Co.

Hon’ble Mrs. Justice R. Banumathi pronounced the judgment of
the Bench comprising Hon’ble Mr. Justice V. Gopala Gowda and Hon’ble Mrs.
Justice R. Banumathi.
Delay condoned.
Leave granted.
The appeals are allowed in terms of the signed order.

(VINOD KR. JHA) (RENU DIWAN)
COURT MASTER COURT MASTER
(Signed Reportable judgment is placed on the file)

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