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SCA/8343/2011 8/ 8 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 8343 of 2011
=========================================================
KARANSINH
VAJESINH PARMAR - Petitioner(s)
Versus
STATE
OF GUJARAT THROUGH SECRETARY & 2 - Respondent(s)
=========================================================
Appearance
:
MR
AG JOSHI for
Petitioner(s) : 1,MR DIPAK H SINDHI for Petitioner(s) : 1,
MR
MAULIK NANAVATI AGP for Respondent(s) : 1,
None for Respondent(s)
: 2 - 3.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 07/07/2011
ORAL
ORDER
Heard
learned advocate Mr. DH Sindhi on behalf of petitioner, learned AGP
Mr. Maulik Nanavati appearing for respondent.
The
father of petitioner Mr. Vajesinh Parmar was working as Dy.
Mamlatdar at Modasa under Collector, expired on 24/8/2000 while in
service. Thereafter, an application was made by petitioner for
compassionate appointment which was rejected only on ground that
application submitted by petitioner is not in time means beyond
period of three months prescribed under Government Resolution.
Therefore, same was not accepted.
Thereafter,
again request was made by petitioner to reconsider his case for
compassionate appointment to respondent, but no response is given by
respondent. Therefore, petition being SCA no. 6434/2007 preferred
before this Court by petitioner wherein this Court has passed an
order on 12/3/2007 which is quoted as under:
” Heard
the learned advocate Mr. AL Sharma on behalf of the petitioner,
learned AGP Mr. Apurva Dave appearing for respondent.
The
grievance of the present petitioner is that, application for
compassionate appointment has been rejected only on the ground of
limitation without considering the Government Policy dated 10/3/2000
and 7/9/2002.
The father of the petitioner Shri Vajeshinh M. Parmar was working as
Deputy Mamlatdar at Modasa, under Collector, Sabarkantha expired on
24/8/2000, while in service. At the time of death of his father the
age of petitioner was 16 years and 8 months. Therefore, application
was filed on 30/11/2000. Thereafter, Deputy Collector by his letter
dated 28/11/2001 moved the proposal for consideration of petitioner’s
case for grant of appointment on compassionate ground. On 12/4/2002,
it was informed to the petitioner that his application is beyond the
period of three months prescribed under the Government Resolution
and therefore, not accepted. Thereafter, request was made by the
petitioner to reconsider his case for compassionate appointment to
the respondent but no response has been given by the respondent.
In
view of the aforesaid fact and considering the submissions made by
both the learned advocates, and considering the object of the scheme,
which is to offer appointment on compassionate ground to the
dependent of deceased employee, what is the object to put such
conditions while framing the policy for compassionate appointment
that the dependent should have to become major within six months from
the death of the deceased employee.
According
to my opinion, there is no rational behind it. However, on technical
ground, the application of petitioner has been rejected which is
contrary to the main object of the policy which was to provide
support of the petitioner of deceased employee who has died while in
service. Therefore, keeping in mind the object of scheme and policy
of such appointment on compassionate ground, respondents are required
to reconsider the matter on merits rather than by rejecting it on
technical ground.
In
view of the aforesaid fact, it is directed to the respondents to
reconsider the case of the petitioner on merits without raising
objection of the limitation within a period of two months from the
date of receiving the copy of this order and communicate the decision
immediately to the petitioner.
In
view of the above observations and directions, present petition is
disposed of without expressing any opinion on merits.
However,
in case if ultimate decision is adverse to the petitioner, it is open
for the petitioner, to challenge the same before appropriate forum in
accordance with law.
Direct
service is permitted.”
In
pursuance to order passed by this Court, decision has been taken by
respondent on 7/6/2007 Annexure A page 18 where according to
Government policy dated 10/3/2000 as per Schedule I application
which was made by petitioner was in time but at that occasion,
petitioner was minor. Therefore, his request was rejected.
In
light of this back ground again petition is filed by petitioner
challenging order passed by State of Gujarat on 7/6/2007.
Learned
advocate Mr. Sindhi submitted that in case if at the time when
application was made by petitioner, he was found to be minor then at
least respondent should have to wait as per Government policy dated
10/3/2000 Clause 8(B). However, from perusal of record annexed to
petitioner, there is no subsequent application preferred by
petitioner after he become major for claiming compassionate
appointment according to Government policy dated 10/3/2000. In such
cases, when dependent is minor then at least respondent authority
must have to wait till he become major. Thereafter, his application
is to be considered according to policy.
Similar
view has been taken by Madras High Court in case of Mohanambal
Vs. Director, Land and Survey Department, Kancheepuram District and
Others reported in 2011 (2) MLJ 47. The relevant para
8 to 12 are quoted as under:
“8. The
petitioner’s mother immediately applied for compassionate
appointment after the death of petitioner’s father. The second
respondent having not taken the ground, which is now taken in the
impugned order, for rejecting the earlier claim made by the
petitioner, I am of the view that the reason stated in the impugned
order viz. petitioner has not submitted the application within three
years from the date of death of her father, can not be sustained.
This Court directed the petitioner to produce an income certificate
of the petitioner’s family recently obtained, to verify the
financial status of the family as on today. The learned counsel for
the petitioner produced an income certificate dated 23/11/2010
issued by the Tahsildar, Ambattur, wherein it is stated that the
petitioner’s husband is doing cooli work and earning Rs. 2000/- per
month.
9. Similar
issue was considered by the Supreme Court in the decision in Syed
Khadim Hussain Vs. State of Bihar (2006) 9 SCC 195 wherein also the
Supreme Court considered the fact that the wife of the deceased
having applied for compassionate appointment in time and as she was
found not eligible, the application submitted by the other legal
heir was directed to be considered even after the lapse of eleven
years. In paragraphs 5 and 6 of the said decision the Supreme Court
held thus,
“5. We
are unable to accept the contention of the counsel for the State, in
the instant case, the widow had applied for appointment within the
prescribed period and without assigning any reasons the same was
rejected. When the appellant submitted the application he was 13
years’ old and the application was rejected after a period of six
years and that too without giving any reason and the reason given by
the authorities was incorrect as at the time of rejection, of the
application he must have crossed 18 years and he could have been
very well considered for appointment. Of course, in the rules framed
by the State there is no specific provision as to what should be
done in case the departments are minors and there would be any
relaxation of age in case they did not attain majority within the
prescribed period for submitting application.
6.As
the widow had submitted the application in time, the authorities
should have considered her application. As eleven years have passed
she would have not be in a position to join the government service.
In our opinion, this is a fit case where the appellant should have
been considered in her place for appointment. Counsel for the State
could not point out any other circumstances of this case, we direct
the respondent authorities to consider the application of the
appellant and give him appropriate appointment within reasonable
time at least within a period of three months. The appeal is
disposed of in the above terms. No costs.”
10. The
Government advocate cited the decision in Sanjay Kumar Vs. State of
Bihar AIR 2000 SC 2782: (2000) 7 SCC 192: (2000) 1 MLJ 44: 2000 –
III – LLJ – 1004, which has no application to the facts
in this case as the claimant in the cited case applied for
compassionate appointment for the first time after eight years.
Similar claim of compassionate ground appointment was rejected in
the decision in Punjab National Bank Vs. Ashwinikumar Taneja AIR
2004 SC 4155: (2004) 7 SCC 265: 2004 – III- LLJ – 536 on
the ground of non existence of financial hardship. Relief was
denied to person in the decision in Santosh Kumar Dubey vs. State of
Uttar Pradesh (2009) 6 SCC 481: (2009) 5 MLJ 1284 on the ground that
even though a person was not found traceable for seven years even
thereafter within five years, no claim for compassionate appointment
was made by the legal heir.
11. Similar
claim of the deceased Tamil Najdu Electricity Board Employee was
considered and relief granted by the Division Bench of this Court in
Indirani Ammal Vs. Chief Engineer, TNEB W.A. No. 3050/2003 dated
8/3/2005 (P. Santhasivam, J, (as he then was) and S.K.K, J). The
said decision was confirmed by the Supreme Court in Civil Appeal no.
2039 of 2006 dated 30/3/2010. Another Division Bench of this Court
in W. A. No. 42/2007 dated 2/7/2009 also took same view, which was
also confirmed by the Supreme Court in SLP (C) No. 8305/2010 dated
6/7/2010. The contra view taken by another Division Bench of this
Court was set aside by the Supreme Court in C. Appeal no. 2858-2859
of 2010 dated 30/3/2010. The said order reads as follows:
“Civil
appeal No. 2858-2859 of 2010 (arising from SLP (C) No. 5068-5069 of
2009)
Leave
Granted.
Heard
learned Counsel for the parties.
These
appeals have been filed against the impugned judgment of the High
Court of Madras dated 29/9/2006 and subsequent order dated 25/8/2008
passed in the Review Application.
The
Division Bench of the High Court has reversed the judgment of the
learned Single Judge only on the ground of delay who directed
compassionate appointment to the appellant. The appellant was a
minor at the time of the death of his father and since the mother of
the appellant applied within time, we are of the opinion that the
appellant, after becoming major should have been granted
compassionate appointment.
Accordingly,
we allow these appeals, set aside impugned judgment of the Division
Bench and restore the judgment of the learned Single Judge. No
costs.”
12. Here
in this case, the petitioner’s mother applied for compassionate
appointment within one year and she was not given appointment due to
want of minimum qualification of eight standard and the petitioner
being only other legal heir, pursuing the matter and agitating her
right for all these years. In the light of the present financial
status of the petitioner, the decision in Syed Khadim Hussain Vs.
State of Bihar (Supra) applies to the facts of this case.”
In
light of observation made by Madras High Court relying upon decision
of Apex Court, let petitioner may make detailed application for
claiming compassionate appointment on the basis of Government policy
dated 10/3/2000 within a period of one month from date of receiving
copy of present order.
As
and when respondent no. 1 receive such application from petitioner
claiming compassionate appointment, it is directed to respondent no.
1 to reconsider application of petitioner on the basis of policy
dated 10/3/2000 and decide it in accordance with law within a period
of three months from date of receiving copy of representation from
petitioner and communicate decision to petitioner immediately.
In
view of above observation and directions, present petition is
disposed of by this Court without expressing any opinion on merits.
However, in case if ultimate decision is adverse to petitioner, it
is open for petitioner to challenge same by filing appropriate
proceeding before appropriate forum in accordance with law. Direct
service is permitted.
(H.K.RATHOD,
J)
asma
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