Appointment And Right To Continue In Service Of Compassionate Appointee Cannot Be Taken Away Except In Accordance With Law: Bombay High Court
The Bench quashed the bid to cancel compassionate appointments made after treating posts as Group-B solely on pay-scale, noted that the later Government Resolutions classified them Group-C.
The Bombay High Court has held that once a compassionate appointee is confirmed in service, the right to continue cannot be taken away except in accordance with law. The Court set aside a Tribunal order that had left open the cancellation of two compassionate appointments made in 2004 and 2008.
The Division Bench held that the State could not treat the deceased employees’ posts as Group-B solely on the basis of pay-scale. It noted that four later Government Resolutions classified the posts as Group-C, and that neither the Respondents nor the Tribunal had considered them.
A Bench of Justice Suman Shyam and Justice Gautam A. Ankhad observed, “…Having thus acquired the status of confirmed employees, the Petitioners have acquired a right to continue in service, subject to the applicable service rules. Such appointment and right to continue in service cannot be taken away except in accordance with law. The Petitioners have been in service for almost two decades. Therefore, any attempt to remove them from service in this matter, at this belated stage, would not only run contrary to the very object of compassionate appointment, but the same would also be contrary to relevant Service Rule. In the facts and circumstances of the present case, we are of the view that the process adopted by the Respondents was not in accordance with law”.
Senior Advocate Narendra V. Bandiwadekar appeared for the petitioner and A I Patel, Additional GP appeared for the respondent.
Avinash Wagh’s father, a Group-C junior clerk, died in service in 2001, and Wagh was appointed as Group Instructor on December 1, 2004. Abhay Khond’s father, a Training Officer, died in 2003, and Khond was appointed Junior Clerk-cum-Typist on January 31, 2008. In 2010, show cause notices were issued to both, asking why their appointments should not be cancelled. The notices relied on a Government Resolution dated July 2, 2002 and a confidential departmental letter dated May 19, 2010, treating the pay-scale of Rs 6,500-10,500 as Group-B.
Both petitioners approached the Tribunal, which granted interim protection but later dismissed their Original Applications. The High Court continued the protection on December 1, 2014, and both remained in service.
The Court found that Government Resolutions dated October 22, 2008, March 31, 2010, May 14, 2010 and August 31, 2010 treated the post in that pay-scale as Group-C. The Respondents had not shown these were withdrawn or superseded, and the departmental letter did not address them.
The Bench also weighed equity. It noted there was no laches, fraud or misconduct, that the petitioners had served for about two decades and had crossed the age limit for government entry. Relying on Md. Zamil Ahmed v. State of Bihar, it held that the State cannot take advantage of its own mistake. It clarified that the 2021 Resolution extending the policy to Groups A and B was not treated as the source of the petitioners’ entitlement.
The Court set aside the Tribunal’s judgment to the extent it dismissed the two applications and allowed both petitions in terms of prayer clauses (a) to (d). It added that the order was passed in peculiar facts and shall not be treated as a precedent.
Cause Title: Avinash Kondiram Wagh v. In-charge Deputy Director, Vocational Education & Training & Anr. (Neutral Citation: 2026:BHC-AS:44316-DB)
Appearances:
Petitioners: Senior Advocate Narendra V. Bandiwadekar with Advocates Vinayak R. Kumbhar and Rajendra B. Khaire.
Respondent: A I Patel, Additional GP, Reena Salunkhe, Kavita N. Solunke, Additional GP, Rupali Shinde, AGP.