Case Note & Summary
The dispute arose from the death of Dasharath Limba Pawar, who was employed as a Driver with the Sub-Divisional Engineer, Ujani Kalva Sub-Division No.42, Solapur, Respondent No.5. The petitioners, his widow Kanchan Dasharath Pawar and son Anand Dasharath Pawar, filed the writ petition seeking directions to Respondent Nos.3 to 5 to appoint Petitioner No.2 on compassionate grounds. The petition was pressed only insofar as Petitioner No.2 was concerned. After the employee died on 04 May 2001, his widow made an application on 01 June 2001 for compassionate appointment. Her name was included in the waiting list at Serial No.19, and the respondents assured her that she would be given an appointment immediately. However, her application remained pending with the respondents until the year 2008. By communication dated 29 December 2008, the Deputy Executive Engineer, Ujani Canal Division-8, Solapur informed her that her application was filed, as she had completed the age of 40 years. Thereafter, her son attained the age of majority, and on 05 June 2010, she submitted an application to replace her name with her son's name in the waiting list. Respondent No.4, vide communication dated 12 August 2010, stated that as she had completed 40 years of age on 31 May 2007, her application could not be considered, and as per the Government Rules, the name of Petitioner No.2 could not be considered for inclusion in the waiting list. The application was filed. After several correspondences with Respondent Nos.3 to 5, the petitioners filed the writ petition. The core legal issues were whether the son's name could be substituted in the waiting list after the mother's age disqualification and whether the delay in processing the application barred the claim. The counsel for the petitioners contended that the issue was squarely covered by the decisions of the Full Bench of the High Court in Kalpana wd/o Vilas Taram and another Vs The State of Maharashtra and Others and in Anup Rajendra Maske Vs. The Chief Executive Officer, Zilla Parishad, Solapur and Others. The learned AGP for the respondents did not dispute the law laid down in Kalpana Taram and submitted that the name of Petitioner No.2 could be substituted and included in the waiting list. The High Court considered the facts and reproduced paragraph 38 of the Full Bench decision in Kalpana Taram, which stated that a minor applicant may make an application after attaining 18 years and the waiting list name continues till age 45, and that lapse of long time in making appointment and allowing substitution are separate and distinct, and cannot be intermingled to deny substitution. The Court held that the law laid down in Kalpana Taram squarely applied and that seeking substitution of the name of Petitioner No.2 in place of Petitioner No.1 on account of her having completed the age limit of 40 years was not contrary to the object and purpose for which compassionate appointment is granted. Consequently, the writ petition was allowed in terms of prayer clauses (b) and (c) as regards Petitioner No.2, and Respondent Nos.3 to 5 were directed to include the name of Petitioner No.2 in the waiting list for compassionate appointment. Rule was made absolute insofar as Petitioner No.2 was concerned.
Headnote
A) Service Law - Compassionate Appointment - Substitution of Name in Waiting List - Government Rules (Not specified) - The widow of a deceased employee applied for compassionate appointment and was placed in a waiting list, but her application was filed when she completed 40 years; after her minor son attained majority, the mother sought substitution of his name; relying on Full Bench decision in Kalpana Taram, the High Court held that such substitution is not contrary to the object and purpose of compassionate appointment and directed Respondent Nos.3 to 5 to include the son's name in the waiting list - Held that the son's claim upon attaining majority survives despite the mother's age disqualification (Paras 4-12). B) Service Law - Compassionate Appointment - Delay and Substitution Distinct - Government Rules (Not specified) - The Full Bench decision in Kalpana Taram clarified that a minor applicant may make an application after attaining 18 years, and the waiting list name continues till age 45; lapse of long time in making appointment and allowing substitution are separate and distinct, and cannot be intermingled to deny substitution - The High Court reproduced paragraph 38 of the Full Bench and applied it to reject the respondents' denial based on Government Rules - Held that the delay in appointment and substitution are distinct, so substitution cannot be denied by adding periods (Paras 10-11).
Issue of Consideration
Whether the name of Petitioner No.2 could be substituted in place of Petitioner No.1 in the waiting list for compassionate appointment after the original applicant crossed the age limit, and whether the delay in considering the application barred such substitution.
Final Decision
The Writ Petition was allowed in terms of prayer clauses (b) and (c) as regards Petitioner No.2. Respondent Nos.3 to 5 were directed to include the name of Petitioner No.2 in the waiting list for compassionate appointment. Rule was made absolute insofar as Petitioner No.2 was concerned.
Law Points
- Compassionate appointment waiting list permits substitution when original applicant crosses age limit
- delay in processing application cannot defeat minor child's claim upon attaining majority
- lapse of time in appointment and substitution are distinct and cannot be intermingled to deny substitution
- Full Bench decision in Kalpana Taram applies
- name of minor child can be included in waiting list after attaining majority.
