VIJAYA UKARDA ATHOR (ATHAWALE)versusSTATE OF.MAHARASHTRA AND ORS.

                        [2015] 1 $.C.R. 462


A             VIJAYA UKARDA ATHOR (ATHAWALE)
                             /      v.
             STATE OF.MAHARASHTRA AND ORS.
             (CIVIL APPEAL NOS.409-410 OF 2015)
                      ·, JANUARY 14, 2015
B
        [V. GOPALA GOWDA AND R. BANUMATHI, · JJ.)              '

          Service law - Compassionate Appointment - Non-grant
    of, to the appellant-daughter of the deceased employee in the ·
C   Municipal Corporation - However, compassionate
    appointment given to the illegitimate son of the deceased
    employee -. Writ petition by the appellant - Dismissal of, on
    th·e ground that the appellant was married in the year 2009,
    thus, was ineligible for compassionate appointment,- Policy
O   decision was taken by the State Government on 26.2.2013 for
    grant of compassionate· appointment to married daughter -
    Said order upheld in review application - Appeal before this .
    Court - The questions as regards the effect of Government ·
    Resolution whereby only unmarried daughters of the deceased
E   was eligible for appointment; policy decision dated
    26.02.2013 taken by the State Government as per which the
    married daughter is also eligible to get compassionate
    appointment; non-consideration of the applications submitted
    by· the appellant; eligibility of the illegitimate son of the
F   deceased employee for compassionate appointment,
    remitted back to the High Court for consideration, in the light
    of the facts and circumstances of the case - Government
    Resolution, Genera/Administration Department, No. Comp.
    109312335/M. No.90193/Eight, dated 26.10.1994 - Policy
    decision.               ·    ·
G
                                                               '-
          Shreejith L. vs. Oepu.ty Director (Education) Kera/a and
    Ors. 2012 (6) SCR 427: (2012) ..7 SCC 248; The· Chief
    Commissioner, Central Excise and Customs, Lucknow & Ors.

H                                . 462
  VIJAYA UKARDA ATHOR (ATHAWALE) v. STATE OF 463
                 MAHARASHTRA
 vs. Prabhat Singh 2012 (11) SCR 209 : 2013 (1) SCALE 506                    A
 - referred to.
                           Case Law Reference:
    . 2012 (6) SCR 427 .                  Referred to               Para 6
                                                                             B
      2012 (11) SCR 209                  . Referred to              Para 6

     CIVIL APPELLATE JURISDICTION : Civil Appeal No. 409-
 410 of 2015.

      From The Judgment and Order dated 18.03.2013 and .                     c
 22.11.2013 of the High Court of Judicature of Bombay Bench
 at Nagpur in Writ Petition No. 1341 of 2013 and Miscellaneous
 Application No. 511 of 2013 respectively.      ·

     Sanjai Kumar Pathak, Arpit Rai, Shashi Pathak for the                   D
 Appellant: ·

     Suhas Kadam Anirudha Rajput, Lemax Lawyers & Co.,
 Shankar Chillarge, Aniruddha P.. Mayee, Satyajit A. Desai,
 Anagha S. Desai for the Respondents.
                                                                             E
      The Judgment of the Court was delivered by ·.
           •1          •   -   '~.   '                     \




      R. BANUMATHI, J. 1. 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                    F
  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
· declinirig to issue direction to consider the case of the appellant        G
  for compassionate appointment.                         ·
                                              ~.   .   v       ..



     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, ~ad              H
   464       SUPREME COURT REPORTS               [2015] 1 S.C.R.


A 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
B 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
c 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
D 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
E 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
F 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
G 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
H appointment to married daughter and before the said date the
VIJAYA UKARDA ATHOR (ATHAWALE) v. STATE OF 465
       MAHARASHTRA [R. BANUMATHI, J.]
appellant was not eligible for any appointment. The appellant      A
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    8
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     C
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      D
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 c.lerk ever since the
death of appellant's father as per the well settled proposition    E
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.
                                                                   F
     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   G
case of Shreejith L. vs. Deputy Director (Education) Kera/a
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
                                                                   H.
    466       SUPREME COURT REPORTS                 [2015] 1 S.C.R.


A   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
B   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
C   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.

D         8. The learned counsel for the respondent No.3 submitted
    t.hat 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
E   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
F   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.

G       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
H through the second wife-Kuntabai Athor of Late Ukarda Athor
VIJAYA UKARDA ATHOR (ATHAWALE) v. STATE OF 467
       MAHARASHTRA [R. BANUMATHI, J.]
are not in dispute. Ukarda Athor died on 18.06.1997.                 A
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              B
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   c
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           D
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:
                                                                     E
     "(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    F
     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
                                                                     G
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       H
    468          SUPREME COURT REPORTS              [2015] 1 S.C.R.


A 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
B 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
c 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
D 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
E and in accordance with law.

    Nidhi Jain              Appeals allowed & remitted back to High Court.