MAHARASHTRA ADMINISTRATIVE TRIBUNAL MUMBAI

BENCH AT AURANGABAD

ORIGINAL APPLICATION NO. 175 OF 2023

(Subject – Compassionate Appointment)
DISTRICT :- JALNA
Ramesh Bansi Tekale, )
Age 45 years, Occu. Unemployed, )
R/o Harpala, Tq. Jafrabad, Dist. Jalna. ) .. APPLICANT

VERSUS
1) The Secretary, )
General Administration Department, )
Mantralaya, Mumbai-32. )

2) The District Collector, )

Jalna. )

3) The Executive Engineer, )

Public Works Department, Old Jalna. )

4) The Sub Divisional Officer, )

Public Works Department, Sub Division,)
Jafrabad, Dist. Jalna. ).. RESPONDENTS
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APPEARANCE : Shri D.R. Irale Patil, counsel for the
applicant.

: Shri A.P. Basarkar, Presenting Officer for the

respondent authorities.
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CORAM : JUSTICE SHRI V.K. JADHAV, MEMBER (J)

DATE : 12.09.2024
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ORDER

1. Heard Shri D.R. Irale Patil, learned counsel

appearing for the applicant and Shri A.P. Basarkar, learned

Presenting Officer appearing for respondent authorities.

 2 O.A. No. 175/2023

2. The present Original Application is disposed of

finally with the consent of both the sides.

3. By filing the present Original Application, the

applicant is seeking direction to respondents to consider the

application dated 13.08.2012 filed by the applicant and his

placement in the seniority list maintained by the Collector at Sr.

No. 15 and to issue appointment order on compassionate

ground. The applicant is also seeking quashment of order dated

25.02.2022 passed by respondent No. 3.

4. Brief facts as stated by the applicant giving rise to

the Original Application are as follows :-

(i) The father of the applicant viz. Bansi Jayaji Tekale

was working under Public Works Sub Division at Jafrabad

in category-D employee. Further while in service, he met

with an accident on 08.09.2012 and died. In terms of

G.R. dated 22.08.2005, the applicant, being a son, has

submitted an application within one year from the date of

death of Government servant and as per the said G.R., he

would be entitled to get appointment till he attain the age

of 40 years.

(ii) It is the further case of the applicant that since 2012

the name of the applicant is kept in waiting list at Sr. No.

 3 O.A. No. 175/2023

15. More than 11 years has been passed. In between

2012-2022, at the level of respondent authorities number

of vacancies has been filled in category-D. The applicant

however has been deprived from the appointment.

(iii) The applicant further contends that by impugned

order dated 25.02.2022 issued by respondent No. 3, the

applicant’s name was removed from the waiting list solely

on the ground that he has crossed the age of 45 years.

Hence, the present Original Application.

5. Learned counsel for the applicant submits that in

terms of Circular dated 05.02.2010, the Government has issued

directions to the authorities that before filling the vacancies by

nominations, the wait list candidates should be given priority.

Further by issuing G.R. dated 21.09.2017, the Government has

increased the percentage from 5% to 10% for appointment on

compassionate ground and also age limit up to 45 years for

appointment on compassionate ground.

6. Learned counsel for the applicant submits that

respondent authorities by relying upon the G.R. dated

29.09.2017 informed to the applicant that he has now

completed 45 years of age and therefore, he cannot be

 4 O.A. No. 175/2023

continued in the waiting list. Learned counsel submits that

said G.R. dated 29.09.2017 applied prospectively and not

retrospectively. The applicant has filed application way back in

the year 2012. The applicant is not at fault.

7. Learned counsel for the applicant further submits

that impugned order dated 25.02.2022 was not communicated

to the applicant at any point of time. His name was also

included in the waiting list and as such, the duty is cast upon

the respondents to grant him opportunity of being heard and

applicant should have been placed under the special category. It

is difficult to believe that the respondent authorities would not

find out the vacancy in the other sister department of the

Government in time. Learned counsel submits that in a case of

Kalpana Vilas Taram & Anr. Vs. The State of Maharashtra and

Ors., the Full Bench of Hon’ble High Court of Bombay, Bench at

Nagpur has held that policy framed for wait listing is not

contrary to the very object and purpose of compassionate

appointment. In view of the same, removing the name of the

applicant from the wait list is contrary to the very object and

purpose of compassionate appointment. Learned counsel thus

submits that the present Original Application deserves to be

allowed.
 5 O.A. No. 175/2023

8. Learned Presenting Officer on the basis of affidavit in

reply filed on behalf of respondent Nos. 3 & 4 submits that as

per clause No. 11(AA) of G.R. dated 21.09.2017, the age limit

prescribed is 45 years of age and after completion of 45 years of

age, the name of the candidate in the waiting list is required to

be removed. Accordingly, respondent No. 3 on 25.02.2022

communicated to the applicant that the applicant has already

completed 45 years of age and therefore, his name is removed

from the waiting list prepared for appointment on

compassionate basis.

9. Learned Presenting Officer submits that pursuant to

the G.R. dated 11.09.2019 issued by the State of Maharashtra,

the posts which were fallen for the appointment on

compassionate ground in the ratio of 20% on the vacant posts

since 2009 to 2012 are shown, in which the proposal of the

applications received from the date of 31.07.2006 to 06.01.2012

are taken into consideration and accordingly, those candidates

were given the appointment till the end of year 2022. In all 16

candidates have been appointed since 2019 to 2022 in the

reciprocated ratio of 20% as per the G.R. dated 11.09.2019.

Learned P.O. submits that in the aforesaid proposal, the name

of the applicant was not appeared, as the applicant has

 6 O.A. No. 175/2023

submitted his application on 13.08.2012. Meanwhile, the

applicant has crossed the age of 45 years on 20.05.2021 and

therefore, considering the clause 11(AA) of G.R. dated

21.09.2017; the applicant was found disentitled for the

appointment on compassionate ground. Learned P.O. submits

that there is no substance in the present Original Application

and the same is liable to be dismissed.

10. Learned Presenting Officer submits that the ratio

laid down in a case of Kalpana Vilas Taram & Anr. Vs. The State

of Maharashtra and Ors. relied upon by learned counsel for the

applicant is not applicable to the facts of the present case.

11. In terms of earlier G.R. dated 22.08.2005, age limit

is prescribed for compassionate appointment to the eligible legal

heirs of deceased Government employee as 40 years.

Subsequently by issuing G.R. dated 21.09.2017, the said age

limit is extended and instead of 40 years, it is now 45 years. It

further appears from the affidavit in reply filed on behalf of

respondent Nos. 3 and 4 that the appointments are made till

the end of year 2022 and in all 16 candidates have been

appointed since 2019 to 2022 in the reciprocated ratio of 20%

as per the G.R. dated 11.09.2019. Unfortunately, name of the

applicant was not included in the list, as the applicant has

 7 O.A. No. 175/2023

submitted application on 13.08.2012 and the said list was

exhausted to the extent, who has submitted application for

appointment on compassionate ground till 06.01.2012.

Meanwhile, the applicant has crossed the age of 45 years on

20.05.2021. There is no provision to extend the age in the

scheme of compassionate appointment particularly in the

consolidated G.R. dated 21.09.2017.

12. In a case of Kalpana Vilas Taram & Anr. Vs. The State

of Maharashtra and Ors. in W.P. No. 3701/2022 and other

connected W.Ps., relied upon by learned counsel for the

applicant in para No. 48, the Full Bench of the Hon’ble High

Court of Bombay, Bench at Nagpur has observed that the

purpose of the waiting list in relation to compassionate

appointment is different. It is nothing but a list of aspirants who

are in line, which is maintained on the basis of the date of

application. Moreover, such list does not have any fixed life after

which it would lapse. In para No. 49, the Hon’ble Full Bench

has observed that compassionate appointment is a concession

and not a vested right and also compassionate appointment is

not to provide for endless compassion. Therefore, it cannot be

said that it would add insult to the injury if such a person who

has been waitlisted continues to be so waitlisted for decades

 8 O.A. No. 175/2023

together and the policy of substitution of such a waitlisted

person is permitted. The Full Bench of Hon’ble High Court of

Bombay, Bench at Nagpur therefore does not find that the

policy framed for wait listing would be contrary to the very

object and purpose of the compassionate appointment.

13. The Full Bench of Hon’ble High Court of Bombay,

Bench at Nagpur in the aforesaid W.P. No. 3701/2022 in para

Nos. 48, 49 & 51 has made the following observations :-

“48. However, the purpose of the waiting list in relation to

compassionate appointments is different than the purpose stated
herein above. The waiting list in the matter of compassionate
appointment is nothing but a list of aspirants who are in line,
which is maintained on the basis of the date of application.
Moreover, such list doesn't have any fixed life after which it
would lapse. Such list infact provides transparency in the
process of appointment and helps the aspirants to know their
status as regards the appointment. Therefore, it would help to
eliminate any possibility of arbitrariness in appointments,
particularly when such appointments take long time to come into
being for the reason that such appointments are permissible only
on a fixed percentage of posts of total vacancy.

49. It is a settled law that compassionate appointment is a

concession and not a vested right. It is also a settled law that
the idea of compassionate appointment is not to provide for
endless compassion. Moreover, in the G.R. dated 21/09/2017 it
is specifically stated that compassionate appointment cannot be
claimed by way of inheritance. Therefore, it cannot be said that
it would add insult to the injury if such a person who has been
waitlisted continues to be so waitlisted for decades together and
the policy of substitution of such a waitlisted person is
permitted.

51. In these circumstances and in the light of above discussion,

we answer the reference as under :
 9 O.A. No. 175/2023

Sr. Questions Answer

No.
(i) Considering the object of The view taken in the case
compassionate appointment, of Dnyaneshwar Musane
to provide immediate (supra) by the Division
succour to the family of the Bench of this Court and
deceased employee who other similar matters, is
dies in harness, as is spelt correct and is in consonance
out in Umesh Kumar Nagpal with the object of
(supra), Nilima Raju compassionate appointment
Khapekar (supra) and spelt out in Umesh Kumar
Debabrata Tiwari (supra) Nagpal (supra), Nilima Raju
whether the view taken in Khapekar (supra) and
Dnyaneshwar Musane and Debabrata Tiwari (supra)
other similar matters as
indicated above would be
correct ?
(ii) Whether the policies of the a) Maintaining a wait list of
State, which provide for the candidates for
creating a wait list of the compassionate appointment
candidates for is not contrary to the object
compassionate appointment and purpose for which a
and in cases permits compassionate appointment
substitution, even on has to be granted.
account of crossing a
particular age limit of 45 b) Seeking substitution of
years is contrary to the the name of another member
object and purpose for which in place of a member who
a compassionate has applied, on account of
apportionment has to be crossing the age limit of 45
granted? years is not contrary to the
object and purpose for which
compassionate appointment
must be granted.

14. In this context, the Full Bench has only ruled that

there cannot be any bar for substitution after the candidate has

crossed the age limit.

15. In view of above discussions, I do not find substance

in the present O.A. It is not out of place to mention here that

learned counsel for the applicant was directed to take

 10 O.A. No. 175/2023

instructions from the applicant as to whether there is any

another member in the family for substitution. On instructions,

learned counsel for the applicant submits that there is no other

member for substitution. Hence, the following order :-

ORDER

(i) The Original Application is hereby dismissed.

(ii) In the circumstance, there shall be no order as to costs.

(iii) The Original Application is accordingly disposed of.

PLACE : Aurangabad. (Justice V.K. Jadhav)

DATE : 12.09.2024 Member (J)

KPB S.B. OA 175 of 2023 VKJ Compassionate Appointment