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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APELLATE JURISDICTION
WRIT PETITION NO. 1284 OF 2011
1. Aparna Narendra Zambre - ]
nee - Aparna Mohan Kulkarni ]
Age 26 years, Occ: Unemployed R/o. 481, ]
Kirti Apartment, Overseer Colony South, ]
Shivajinagar, Sangli ]
2. Vaishali Mohan Kulkarni ]
Age 52 years, Occ: Unemployed R/o.481,
ig ]
Kirti Apartment, Overseer Colony South, ]
Shivajinagar, Sangli ] ...Petitioners
V/s.
1. Assistant Superintendent Engineer, ]
Krishna -Koyna Upsa Sinchan Project Board, ]
Sangli ]
2. Collector, Office of the Collectorate, Sangli ]
3. The State of Maharashtra ]
through its Department of Irrigation, Mantralaya, ]
Mumbai ]
(Notice to be served on the A.G.P., High Court, ]
Mumbai) ] ...Respondents
Mr. A.M. Kulkarni with Mr. Akshay Shinde for the Petitioners
Mr. A.B. Vagyani, A.G.P., for Respondents No. 2 and 3
CORAM: A.M. KHANWILKAR AND
MRS. MRIDULA BHATKAR, JJ.
RESERVED ON: 5TH MAY, 2011
PRONOUNCED ON: 1ST AUGUST, 2011
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JUDGMENT (Per A.M. Khanwilkar, J.):-
This petition is filed by the heirs and family members of
deceased Mohan Kulkarni, who was working as an Assistant Engineer in
Mhaishal Pump House No. 2, who died in harness on 8th September,
2003, leaving behind petitioner No. 2 as his widow and two daughters.
Petitioner No. 1 is one of the daughters of deceased Mohan. At the
relevant time, she was unmarried. The other daughter was already
married in November, 2002, before the said Mohan Kulkarni died in
harness.
2. After the death of Mohan, his widow, petitioner No. 2 made
an application on 29th July, 2004 addressed to the Executive Engineer,
Mhaishal Pump House No. 2 at Sangli, requesting to appoint her
unmarried daughter, petitioner No.1, to the post of Junior Clerk or any
other suitable post on compassionate ground. She further stated that she
has no objection if petitioner No.1, who was her unmarried daughter,
were to be given such appointment. The said proposal was forwarded to
the Superintending Engineer, Krishna-Koyna Upsa Sinchan Project
Board at Sangli by the Executive Engineer on 27th August, 2004. On 10th
September, 2004, respondent No. 1 forwarded the said application to
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the Collector, Sangli, for necessary action. The name of petitioner No. 1
came to be included in the Wait List of candidates to be appointed on
compassionate ground prepared by the Collector as well as the
Department. By letter dated 10th December, 2007, respondent No. 1
informed petitioner No. 1 that her name was included in the Wait List
prepared by the Office of the Collector and was at Serial No. 146 and at
Serial No. 10 in the Wait List prepared by the Department some time in
August, 2005. Petitioner No. 1 was also informed to remain present in
his office on 17th December, 2007 with relevant documents. It is the case
of the petitioners that necessary documents were produced by the
petitioners. The petitioners, once again, received a communication dated
2nd June, 2009, calling upon them to remain present in the office with the
relevant documents. Accordingly, petitioner No.1 went to the office of
the respondents on 3rd June, 2009, and, again, on 5th June, 2009. On 8th
June, 2009, the Collector called upon respondent No. 1 to give para-wise
remarks on the proposal of petitioner No. 1 and to submit a detailed
report. Respondent No. 1, once again, confirmed the position that name
of petitioner No. 1 is included in the Wait List prepared prior to 22nd
August, 2005. Petitioner No. 1 was called upon to submit undertaking in
the prescribed format and to furnish necessary information. Accordingly,
petitioner No. 1 submitted the undertaking / affidavit on 31st July, 2009
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as per the requirements specified in the written communication received
by her dated 13th July, 2009. The petitioners were shocked and surprised
to receive communication from the Executive Engineer dated 10th
November, 2010. It is mentioned therein that petitioner No. 2, being
widow, was getting monthly pension, and, in the view of the Department,
she was financially sound and was not dependent on petitioner No. 1.
Then, referring to Government Resolution dated 26th October, 1994, it
was stated that petitioner No.1 was ineligible to be appointed on
compassionate ground, being married daughter of the deceased
employee. As per the said Government Resolution, besides the other
family members mentioned therein, only an unmarried daughter is
eligible to be considered for appointment on compassionate ground. This
decision is challenged in the present petition.
3. The petitioners not only pray for quashing and setting aside
of the said decision, but also pray for direction against the respondents to
forthwith appoint petitioner No. 1 to a suitable post with effect from 29th
July, 2004, along with back wages and consequential benefits.
4. This petition is opposed by the Department. The learned
A.G.P. has adopted the reasons stated in the impugned communication
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dated 10th November, 2010, and has contended that the said view is
consistent with the policy of the Government notified in the Government
Resolution dated 26th October, 1994. According to the learned A.G.P.,
so long as the said policy is in place and the validity thereof is not being
challenged on permissible grounds, no fault can be found with the
conclusion reached by the Authority of rejecting the request of petitioner
No. 1 for being appointed on compassionate ground.
5. Having considered the rival submissions, we would first
advert to the admitted facts of the present case. It is common ground that
Mohan Kulkarni, father of petitioner No. 1 and husband of petitioner
No.2, was working as Assistant Engineer in Mhaishal Pump House
No. 2. He died in harness on 8th September, 2003, leaving behind the
petitioners and one more daughter, who was already married in
November, 2002. Admittedly, petitioner No.1 was unmarried at the time
when her father, Mohan Kulkarni, expired on 8th September, 2003. She
was unmarried even on 29th July, 2004 when application was made for
considering her case for appointment in a suitable post on compassionate
ground. She was unmarried even when her name was included in the
Wait List on 22nd August, 2005. She, however, got married on 11th July,
2007. She was called upon to comply with formalities for being
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considered to be appointed on suitable post on compassionate ground in
June, 2009. It is common ground that the fact that petitioner No. 1 got
married on 11th July, 2007 was disclosed to the authorities. Petitioner
No.1 filed undertaking / affidavit, inter alia, stating that her mother,
petitioner No. 2, was getting pension amount, which was not sufficient to
maintain herself. Therefore, she was interested in taking up job so as to
support her mother, who was entirely dependent on the income of her
father. She has also stated that her husband was not opposed to assist
petitioner No.2 financially in the event she were to get employment on
compassionate ground. In substance, she claimed that it was her desire
to get employment so as to support her mother, petitioner No. 2, and to
overcome her financial hardship.
6. According to the petitioners, in spite of this stand of the
petitioners, the respondents rejected the claim of petitioner No.1 for
being appointed on suitable post on compassionate ground. Only two
reasons are recorded in the impugned communication received by the
petitioners. Firstly, petitioner No. 2 was getting Family Pension, which,
according to the respondents, was sufficient to maintain herself.
According to the respondents, it is not as if petitioner No. 2 was
dependent on petitioner No. 1. The other reason mentioned in the
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impugned communication is that petitioner No. 1, being married
daughter, was not eligible to be considered for appointment on
compassionate ground.
7. Reverting to the first reason mentioned in the impugned
communication, we fail to understand as to how that ground can be said
to be germane for rejecting the request of the petitioners to appoint
petitioner No. 1 on compassionate ground. If that logic was to be upheld,
it would necessarily follow that even other eligible family members
(referred to in the Government Resolution) of the deceased employee,
would become ineligible for appointment on compassionate ground.
In that, even in the case of other family members such as son, unmarried
daughter, widow, the same reason would be attracted, which would result
in making the scheme of appointment on compassionate ground, such as
clause 3(a) of Government Resolution dated 26th October, 1994, being
otiose. Suffice it to observe that the fact that Family Pension is being
received by the widow or other eligible family members of the deceased
employee can be no basis to deny them the benefit of appointment on
compassionate ground. That concession is in addition to the relief of
Family Pension, which is, essentially, intended to meet the immediate
financial hardship suffered by the members of the family due to the
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sudden demise of the deceased employee. Indeed, after appointment on
compassionate ground, whether the Family Pension should be paid is a
matter to be governed by the extant Rules. The very object of
appointment of dependant of deceased employee, who died in harness, is
to relieve immediate hardship and distress caused to the family by sudden
demise of the earning member of the family. Providing Family Pension
may be lessening the financial hardship, but not completely relieving the
family members of the deceased employee of financial hardship and
distress caused due to his sudden demise, resulting in loss of his regular
salary, on which the entire family was dependent.
8. That takes us to the second reason, which weighed with the
authorities to reject the claim of petitioner No. 1. For that, we may have
to refer to clause 3(a) in the Government Resolution dated 26th October,
1994, which reads thus:-
“‘kklu fu.kZ;] lkekU; iz’kklu foHkkx] Ø- vdaik 1093@2335@iz-Ø 90@93@vkB
fnukad 26 vkWDVkscj 1994
vuqdaik dkj.kkLro ‘kkldh; lsosr uksdjh ns.;kckcrph lq/kkfjr
fu;ekoyh1- egkjk”Vª jkt; ‘kklukP;k loZ dk;kZy;kr vuqdaik dkj.kkLro
djko;kP;k] use.kqdkauk gs fu;e ykxq jkgrhy-
2- [kkyhy izdkjkae/;s eksM.kkÚ;k ‘kkldh; deZpkÚ;kaps ¼:ikarfjr
LFkk;h o vLFkk;h vkLFkkiusojhy deZpkjh /k:u½ 3-¼v½ ;sFkhy::: Downloaded on – 09/06/2013 17:34:46 :::
9 128411ukrsokbZd ;k fu;ekuqlkj vuqdaik dkj.kkLroj ‘kkldh; lsosr
ue.kqdhlkBh ik= vlrhy %&
¼v½ ‘kkldh; lsosr vlrkuk fnoaxr >kysys deZpkjh]
¼c½ {k;] ddZjksx bR;knh xaHkhj vktkjkeqGs] l{ke oS|dh;
vf/kdkÚ;kaP;k izek.i=kuqlkj vdkyh fuo`Rr >kkysys vf/kdkjh@deZpkjh
¼d½ ekufld fadaok ‘kkjhfjd fodykaxrk vkY;kus] l{ke
oS|dh; vf/kdkÚ;kus iq<hy lsoslkBh v{ke BjfoY;kus vdkyh fuo`Rr
dj.;kr vkysys fdaok ojhy dkj.kkLro lsosrwu dkkysys ijarw egkjk”Vª ukxjh lsok ¼fuo`fRrosru½ fu;e] 1982
e/khy fu;e 72 ¼3½ vuqlkj i;kZ;h in nsÅ d:ughrs u Lohdkjrk
lsokfuo`Rrh Lohdkj.kkjs deZpkjh-
3- ¼v½ fnoaxr@vdkyh fuo`Rr ‘kkldh; deZpkÚ;kaph
irh@iRuh] eqyxk fdaok vfookfgr eqyxh vFkok eqR;wiwohZ@ vdkyhlsokfuo`Rrh iwohZ dk;ns’khj jhR;k nRrd Äsrysyk@?ksrysyh eqyxk@eqyxh
gh fu;ekuqlkj use.kqdhl ik= ukrsokbZd ekuU;kr ;srhy- ;kf’kok; vU;
dqBY;kgh ukrsokbZdkl ;k ;kstuspk Qk;nk feG.kkj ukgh-
¼c½ lnj use.kwd ‘kkldh; deZpkÚ;kaP;k QDr ,dkp
ukrsokbZdkl nsrk ;sbZy-……”
English translation of the abovesaid extract of the said
Government Resolution reads thus:
“Government Resolution, General Administration
Department, No. Comp. 1093/ 2335/ M. No. 90/ 93/ Eight
Dated : 26 October, 1994.
Revised rules in respect of giving employment in
government Service on Compassionate ground.
(1) These rules shall be applicable to the appointments,
to be made on compassionate grounds, in all the offices of
the State Government of Maharashtra.
(2) The relatives of the government employees
mentioned at 3 (A) (including the employees borne on
converted permanent and temporary establishments) falling
in the belowmentioned categories shall be eligible, under::: Downloaded on – 09/06/2013 17:34:46 :::
10 128411these rules, for appointment in the government service on
compassionate ground :-
(a) Employees, died while in government
service.
(b) Officers/ Employees, retired prematurely
under certificate of the competent medical officer,
on account of serious ailments like Tuberculosis,Cancer etc.
(c) Employees, declared incompetent for further
service by the Competent medical officer on
account of mental or physical disability, who aremade to retire prematurely or who have been
removed from service on the aforesaid ground.
(d) Employees, who became handicapped on
account of accident while discharging their duties, in
the government service, but, who did not accept analternative post in spite of offering it under Rule
72 (3) of Maharashtra Civil Services (Pension) Rules
1982, and opted retirement.
(3) (a) Husband/ wife, son or unmarried daughter of the
deceased / prematurely retired government
employee OR son/ unmarried daughter lawfullyadopted, 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.
(b) The said appointment can be given to only one
relative of government employees.
…….”
9. Two broad questions would arise while answering this
issue. Firstly, whether the eligibility of the candidate such as petitioner
No. 1 should be reckoned with reference to the date when she became
eligible for consideration to be appointed on compassionate ground, or
whether her eligibility should be reckoned with reference to the date
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when the suitable vacancy becomes available? Secondly, whether the
expression “unmarried daughter” in clause 3(a) of the Government
Resolution can be said to be just and fair, as it excludes the married
daughter for being appointed on compassionate ground?
10. So far as the first point is concerned, we agree with the
petitioners that there are authorities of the Apex Court, on Service
Jurisprudence, in abundance, taking the view that the required
qualification of the candidates should be examined with reference to the
date of making application and not with reference to the date of selection.
The Apex Court has consistently held that, in the absence of a fixed date
indicated in the advertisement / notification inviting applications, with
reference to which, the requisite qualification should be judged, the only
certain date for the scrutiny of the applications will be the last
date for making the applications. [See Rekha Chaturvedi v.
University of Rajasthan, 1993 Supp (3) SCC 168, and Ashok Kumar
Sonkar v. Union of India & Ors., (2007) 4 SCC 54.]
11. In the present case, the father of petitioner No.1 expired on
8th September, 2003, and the application for appointment on
compassionate ground was made soon thereafter, on 29th July, 2004. On
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the date when petitioner No. 1 made application, she was found
to be eligible. Admittedly, she was not married until then, and possessed
other qualifications. Applying the principle underlying the abovesaid
decisions of the Apex Court, the required qualification of petitioner No. 1
should and ought to be judged with reference to the date of her
application made on 29th July, 2004. Indeed, petitioner No. 1 got married
on 11th July, 2007. The question is: Whether, on account of this
circumstance, she became ineligible, being married daughter of the
deceased employee?
12. This question has been exhaustively considered by the
learned Single Judge of our High Court (Smt. Nishita Mhatre, J.), while
deciding Writ Petition No. 6056 of 2010 in the case of The State of
Maharashtra & Ors. v. Medha Prashant Parkhe, vide judgment dated
October 26, 1020. The learned Single Judge has held that clause 3(a) in
the Government Resolution dated 26th October, 1994 is arbitrary and
results in discrimination against married daughter. This decision has
analysed several judgments which have questioned the nexus of
exclusion of married daughters from consideration for appointment on
compassionate ground. The learned Single Judge has adverted to the
exposition of the Calcutta High Court in the case of Smt. Usha Singh v.
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State of West Bengal & Ors., 2003 (2) LLN 554, questioning the nexus
of leaving out married daughter from consideration. The Calcutta High
Court, in paragraph 7 of the said decision, has observed that right to
marry is a necessary concomitant of right to life guaranteed under Article
21 of the Constitution. Right to life includes right to lead a healthy life
so as to enjoy all the faculties of the human body in their prime
condition. In paragraph 10 of the same judgment, the Court proceeded to
pose several questions which were unanswerable, including the nexus
between the qualification of unmarried daughters and the object sought
to be achieved. It went on to observe that, if anyone suggests that a son,
married or unmarried, would look after the parent and his brothers and
sisters, and that a married sister would not do as much, the answer would
be in the negative.
13. In another decision of the Karnataka High Court relied upon
by the learned Single Judge of our High Court, it is observed that the
‘dependency’ should be the yardstick and not the ‘marriage’ to wipe out
the tears from the eyes of the suffering family on account of the loss of
an earning member in the family [see Manjula v. State of Karnataka by
its Secretary, Department of Cooperation Bangalore & Anr., 2005
(104) FLR 271].
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14. The learned Single Judge has also adverted to the decision
in the case of R. Jaymma v. Karnataka Electricity Board & Anr., AIR
1993 I LLJ 587 of the Karnataka High Court, which has held that Article
14 of the Constitution assures to all citizens equality before the law and
legal protection of the law. Article 15 expressly prohibits discrimination
on the ground of sex. Article 16 guarantees equality of opportunity in
matters of public employment. Keeping in mind those principles, the
learned Single Judge of our High Court has observed that the provision
such as clause 3(a) of Government Resolution dated 26th October, 1994,
which excludes married daughter from consideration, is manifestly
discriminatory and arbitrary. As a consequence of this opinion, the
prefix “unmarried” may have to be struck down being unconstitutional.
That would make even a married daughter eligible for consideration.
15. We may usefully refer to the decision of the Division Bench
of the Madras High Court in the case of U. Arulmozhi v. the Director of
School Education in Writ Petition No. 18916 of 2004 decided on 20th
February, 2006 reported in (2006) 2 LW 324 (Mad) (DB). While dealing
with the identical provision in the Government Order, the Court held that
exclusion of married daughter from consideration for appointment on
compassionate ground is untenable. The Court reasoned that the
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provision in question [such as clause 3(a) of G.R. dated 26th October,
1994] does not envisage at the time of actual employment that such
unmarried daughter should continue to be unmarried nor does it provide
that, after the unmarried daughter gets employment on compassionate
ground, she cannot marry in future. Further, there is no column in the
format of application to be submitted to indicate that the applicant at the
time of her employment is required to disclose whether she is married in
the meantime. Nor there is any requirement that an unmarried daughter
is required to remain as a spinster for ever. The Court then found that, if
an unmarried daughter, after getting appointment, has liberty to marry, it
is unfathomable as to why the married daughter be deprived of the
concession.
16. We are conscious of the fact that the petitioners have not
challenged the validity of clause 3(a) of Government Resolution dated
26th October, 1994. We may, however, rest this decision singularly on
the first broad point referred to above. The question is: The eligibility for
appointment should be reckoned from which date? Is it on the date of
selection or with reference to the date of making application? As has
been held earlier, the date of application ought to be reckoned for the
purpose of eligibility of the candidate and not the date of selection.
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The fact that, in the present case, the application for appointment of
petitioner No. 1 on compassionate ground was made on 29th July, 2004 is
indisputable. That was well within time. At the relevant time, petitioner
No. 1 was unmarried. It is also common ground that the name of
petitioner No. 1 was included in the Wait List on 22nd August, 2005.
This event is also crucial to determine the eligibility of the incumbent.
Even at that time she was unmarried. She got married only on 11th July,
2007. Thus, applying the legal position, the date of application and, at
any rate, the date of inclusion of her name in the Wait List ought to be
reckoned for considering the claim of petitioner No. 1. As she was
“unmarried” on that date, she fulfilled the requirements of clause 3(a) of
the Government Resolution. The fortuitous circumstance of her marriage
on 11th July, 2007, while her name remained on the Wait List since 2005
on account of non-availability of vacancy against which she could be
appointed, cannot be the basis to deny her the concession provided to the
family members of deceased Government employee for being appointed
on compassionate ground, which is intended to meet the immediate
financial hardship suffered by the members of the family due to the
sudden demise of the deceased employee.
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17. On this finding, it is unnecessary for us to traverse the wider
issue as to whether the provision contained in clause 3(a) of Government
Resolution dated 26th October, 1994 restricting the concession only to an
unmarried daughter is ultra vires the Constitution.
18. We may now refer to the other decisions pressed into
service by the petitioners. Reliance has been placed on the exposition in
the case of Savita Samvedi & Anr. v. Union of India & Ors., (1996) 2
SCC 380. In this case, the circulars issued by the Railway Board were
under challenge. The first Circular provided for allotment of railway
accommodation to the retired railway employee and also to his unmarried
daughter on out-of-turn basis. That was subsequently clarified by
another circular so as to extend the scope of concession even to married
daughters, subject to fulfilment of certain requirements.
Those conditions were assailed, being contrary to Article 14 of the
Constitution of India. The Court observed that such conditions in respect
of married daughters were wholly unfair, gender-biased, unreasonable
and liable to be struck down under Article 14 of the Constitution. As
aforesaid, it is not necessary for us to go into the larger question on the
facts of the present case.
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19. Reliance is then placed on the decision in the case of
Dr. Mrs. Vijaya Manohar Arbat v. Kashirao Rajaram Savai & Anr.,
(1987) 2 SCC 278. In that case, the question which arose for
consideration was: Whether the parents were entitled to ask for
maintenance from their married daughter under Section 125 of the
Criminal Procedure Code. That question has been answered in the
positive by the Apex Court. Relying on this decision, it is contended by
the petitioners that petitioner No. 1 having submitted undertaking /
affidavit to the effect that the dominant purpose of seeking employment
on compassionate ground was to financially support her mother,
petitioner No. 2, who was the family member of the deceased employee,
and that plea having gone unchallenged, it was not open to the authorities
to reject her application for appointment on compassionate ground. We
find force in this submission.
20. Considering the above, both the grounds referred to in the
impugned communication dated 10th November, 2010 are untenable. In
that case, the basis on which the application of petitioner No. 1 for
appointment on compassionate ground has been rejected by the Authority
cannot be sustained. That does not mean that petitioner No. 1 would be
entitled for the relief of declaration that she is appointed on a suitable
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post with effect from 29th July, 2004, which was the date on which she
made application. After that application, her name was included in the
Wait List in August, 2005. That, by itself, did not give her right of
appointment. That created only a right in her favour for being considered
for appointment as and when suitable vacancy arose. That process was
commenced in June, 2009, when her number in the Wait List matured for
consideration, in anticipation of the vacancy of suitable post. Her
proposal was processed at different levels until November, 2009.
Thereafter, the impugned communication was sent. It is possible that, if
the authorities were to accept her application for appointment on
compassionate ground, she may have got employment some time in
November or December, 2010. However, petitioner No. 1 cannot be
heard to claim relief of payment of back wages and other consequential
benefits from the date of her application on 29th July, 2004. For, until a
right to appointment was created in favour of petitioner No. 1, she cannot
claim relief of back wages as such. Accordingly, while setting aside the
impugned communication, we would direct the authorities to re-consider
the claim of petitioner No. 1 for being appointed on compassionate
ground against a suitable vacancy expeditiously; and appoint her if she is
found eligible in all other respects, including no other senior person to
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her in the concerned Wait Lists is yet waiting to be appointed against
suitable vacancy.
21. Accordingly, we partly allow the Writ Petition on the
following terms:-
(a) The impugned communication dated 10th
November, 2010 issued by the Office of the
Executive Engineer, Exhibit ‘A’, is quashed and set
aside.
(b) The respondents are directed to forthwith
re-consider the claim of petitioner No. 1 for being
appointed on compassionate ground against
suitable vacancy; and if all other candidates senior
to her in the concerned Wait Lists are already
appointed, shall proceed to appoint petitioner No. 1
against a suitable vacancy, if found to be eligible in
all other respects.
(c) No order as to costs.
MRS. MRIDULA BHATKAR, J. A.M. KHANWILKAR, J.
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