FARAD CONTINUATION SHEET NO.

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

WRIT PETITION NO. 5609 OF 2010
"Anil s/o Bhatu Deshmukh Vs. The State of Maharashtra and others."

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Office Notes, Office

Court's or Judge's orders
Memoranda of Coram or directions and Registrar's orders.
appearances, Court's
Orders

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Mr. B.S. Deshmukh, Advocate for petitioner.

Mr. N.R. Shaikh, AGP for respondent State/Authorities i.e.
Respondent Nos. 1 and 2.
Mr. Rajendra N. Chavan, Advocate h/f. Mr. Vijay Sharma, Advocate
for respondent NO. 3

CORAM :- B.P. DHARMADHIKARI &

SUNIL P. DESHMUKH, JJ.

DATE :-

27TH JUNE, 2012.

PER COURT :1]

Heard Advocate Deshmukh, for petitioner, Advocate

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Chavan, for respondents No.3.Zilla Parishad, and AGP Shri N.R.

Shaikh, for respondent No.2.
2]

Advocate Deshmukh has contended that, Clause No.4

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of Govt. Resolution dated 23rd August, 1996, governing grant of

compassionate employment is bad. According to him, it is selfcontradictory and in any case, compliance with it, is not
controlled by the present petitioner.

He submits that thus, it

is capable of being abused. He invites attention to para.6 of the

petition to show that 3 candidates, namely, Shivkkumar Gulab
Chavan , Manohar Vithal Bagul and Prashant Bhagwat Patil have
been directly appointed on category C post, though they were
similarly situated, after present petitioner was appointed on
compassionate basis , on a post in lower category i.e. Category

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FARAD CONTINUATION SHEET NO.

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

WRIT PETITION NO. 5609 OF 2010
"Anil s/o Bhatu Deshmukh Vs. The State of Maharashtra and others."

C
ou

Office Notes, Office

Court's or Judge's orders
Memoranda of Coram or directions and Registrar's orders.
appearances, Court's
Orders

D. Category D represents Class IV posts , while CategoryC

include Class III posts. The facts are not in dispute.

Learned counsel for respondent No.3 has invited

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3]

attention to order dated 31.3.2005, by which petitioner has been

appointed on compassionate basis, against a Class IV post. He

points out that said appointment is in purely temporary capacity.

In this situation, according to him, petitioner has no right to post
and , therefore, he cannot maintain such petition.

Support is

being taken from judgment of this court dated 8.6.2010 in W.P.

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No. 2609 of 2009 and 3285 of 2009.

4]

Learned AGP for respondent Nos. 1 and 2 also take

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support from very same judgment and contends that petitioner

cannot assail Government Resolution dated 28th August, 1996.
5]

The

fact

that

petitioner

has

been

provided

employment on compassionate ground is not in dispute. Thus,

his entitlement thereto, has been examined within four corners of
the scheme and then work has been provided. Even perusal of
Clause IV, which has been assailed by the petitioner before us
reveals that compassionate appointment can be provided against
existing vacancies. The petitioner has been appointed against a
clear and vacant post.

His appointment, therefore, cannot be

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FARAD CONTINUATION SHEET NO.

rt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

WRIT PETITION NO. 5609 OF 2010
"Anil s/o Bhatu Deshmukh Vs. The State of Maharashtra and others."

C
ou

Office Notes, Office

Court's or Judge's orders
Memoranda of Coram or directions and Registrar's orders.
appearances, Court's
Orders

3
viewed as purely temporary.
appointment on probation.

At the most, it can be viewed as

Stipulation to the contrary, in his

6]

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h

order of appointment is, therefore, unsustainable.

In view of this, we are not in a position to hold that by

order dated 31.3.2005, petitioner has not been appointed on

compassionate basis. We find that petitioner has been appointed

on compassionate basis. We are not in a position to accept that
his appointment is of purely temporary nature.
Because of these findings, the judgment of this court

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y

7]

dated 28.6.2011 delivered in W.P. No. 3609 of 2009 and 3285 of

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2009, is not relevant for considering the present controversy.

8]

August,

Perusal of Clause IV of Govt. Resolution dated 23rd

1996

governing

the

grant

of

employment

on

compassionate basis shows that when a dependent is eligible for

employment against a class III (Group C category ) post, he could
be considered against a Class IV (Group D category) post, if there
is no vacancy in Class III category post. However, whenever such
vacancies become available in Class III category, he needs to be
shifted to Class III category and his appointment is to be
regularized as direct recruitment. The petitioner has no objection
to this part of Clause No.4.

However, entitlement of the

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FARAD CONTINUATION SHEET NO.

C
ou

Office Notes, Office

Court's or Judge's orders
Memoranda of Coram or directions and Registrar's orders.
appearances, Court's
Orders

rt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

WRIT PETITION NO. 5609 OF 2010
"Anil s/o Bhatu Deshmukh Vs. The State of Maharashtra and others."

petitioner to such shifting is made dependent upon an express

stipulation, in his order of appointment on compassionate ground.
If the order contains a stipulation that petitioner will be eligible to

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be shifted to Class III post after availability of vacancy, then only,

he becomes eligible and can be shifted.

If the order of

appointment does not contain that stipulation, he is not eligible at

9]

all.

The order of appointment is not to be drawn by a

person who is getting employment on compassionate ground.

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The petitioner, therefore, cannot be blamed for either presence

of such stipulation or its absence in his appointment order. The
appointment order dated 31.5.2003 does not contain any such

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stipulation. If the contention of the respective counsel appearing

for the respondents is to be accepted, then, it is apparent that
while preparing or drafting appointment order, the stipulation can
be introduced at the whim & caprice of issuing authority.

The

State Government or Zilla Parishad have not filed any affidavit in

reply. Therefore, the logic behind introducing such stipulation or
condition has not come before this court.
10]

In this situation, as we find that petitioner cannot be

blamed for absence of a particular stipulation in his appointment

order,

we hold that its absence cannot be used to his prejudice.

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FARAD CONTINUATION SHEET NO.

Office Notes, Office

Court's or Judge's orders
Memoranda of Coram or directions and Registrar's orders.
appearances, Court's
Orders

5
If

persons

in

waiting

list

for

C
ou

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

WRIT PETITION NO. 5609 OF 2010
"Anil s/o Bhatu Deshmukh Vs. The State of Maharashtra and others."

grant

of

appointment

on

compassionate ground, junior to the petitioner have been already

appointed on Class III Post, we direct respondent No.3 Zilla

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h

Parishad also to consider and appoint the present petitioner on

Class III post. In view of this direction, it is not necessary for us to
consider the challenge to validity of later part of Clause IV of

11]

Govt. Resolution dated 23rd August, 1996.

Accordingly, we direct respondent No.3 Zilla Parishad

to consider the entitlement of the petitioner against a vacancy in

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Class III category as per his seniority in waiting list for

appointment on compassionate ground and if he is found eligible,
grant him that post with deemed date. Necessary action in this

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respect be completed within 3 months from today. Writ petition is

partly allowed and disposed of.

No costs. Rule made absolute

accordingly.

[SUNIL P. DESHMUKH,J.]
grt/-

[B.P. DHARMADHIKARI,J]

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