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LPA/682/2003 7/ 7 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 682 of 2003
in
SPECIAL
CIVIL APPLICATION No. 10587 of 2002
with
CIVIL
APPLICATION No.3270 of 2003
For
Approval and Signature:
HONOURABLE
MR.JUSTICE A.L.DAVE
HONOURABLE
SMT.JUSTICE ABHILASHA KUMARI
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
STATE
OF GUJARAT - Appellant(s)
Versus
DIPAK
KUMAR MOHANBHAI JADAV & 1 - Respondent(s)
=========================================================
Appearance :
MS
SANGEETA VISHEN, AGP for Appellant(s) : 1,
MR IS SUPEHIA for
Respondent(s) : 1,
RULE SERVED for Respondent(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE A.L.DAVE
and
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
Date
: 08/07/2008
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE A.L.DAVE)
The
appellant-State is aggrieved by an order passed by the learned
Single Judge in Special Civil Application No.10587 of 2002 on 22nd
January, 2003. The said petition was preferred by the respondent
No.1 aggrieved by the action on the part of the appellant of not
granting compassionate appointment to him.
The
facts of the case can be stated thus:
The
father of respondent No.1 was serving as a Driver with Taluka
Development Officer at Rajkot. He expired on September 20, 1995,
while in harness. The respondent No.1 therefore applied for grant of
an appointment on compassionate ground by application dated 6th
January, 1999, which was rejected by the appellant-authority
considering the relevant Circulars/ Resolutions of the Government.
He again applied for the post on 8th January, 2001. Since
there was no reply, he preferred Special Civil Application No.10587
of 2002 which came to be allowed by the learned Single Judge by an
order dated 22nd January, 2003. This order has aggrieved
the appellant-authority and hence this Appeal.
Learned
Assistant Government Pleader Ms.Sangeeta Vishen submitted that the
case of respondent No.1 could not be favourably considered by the
appellant because his case did not fall within the income criteria
fixed by the Government by various Resolutions and Circulars. The
learned Single Judge has taken a view that while considering income
criteria, income received by way of family pension is required to be
excluded from the income of the family and if that was done, the
family income of the respondent No.1 would be below the criteria
fixed, making the case of respondent No.1 fall within the parameters
for consideration for grant of appointment on compassionate grounds.
However, Ms.Vishen submitted that this aspect has been considered in
detail by a Division Bench of this Court (Coram: J.N.Bhatt &
Kundan Singh, JJ.) while dealing with Letters Patent Appeal No.97 of
2002 with allied matters, by judgment dated 31st March,
2003. Ms.Vishen submitted that it is clearly observed in the said
decision that it is for the Government to fix the parameters for
considering the cases for compassionate appointment and the Court
may not interfere in exercise of powers under Article 226 of the
Constitution of India in such a situation. She submitted further
that the cut-off date fixed by the Government has also been upheld
by the Division Bench by the said judgment. It is, therefore,
submitted that the Appeal may be allowed and the order of the
learned Single Judge may be set aside.
Learned
advocate Mr.I.S.Supehia for the respondent No.1 has opposed this
Appeal.
We
have considered rival side submissions. It is clear that the case of
respondent No.1 was rejected on income criteria. The income limit
fixed for the family income was Rs.2,500/- per month with effect
from 1st January, 1995, and in the case of respondent
No.1, the family income was more than that, if the amount of family
pension received was taken into consideration. Therefore, the
question that falls for consideration is whether the view taken by
the appellant-authority is correct? We find that the said view is
taken on the basis of the Circulars and Resolutions issued by the
Government from time to time.
We
have gone through a copy of the judgment rendered by the Division
Bench of this Court in Letters Patent Appeal No.97 of 2002 dated
31st March, 2002, wherein in paragraphs 21, 22 and 23, it
has been observed thus:
?S21. As it is a question of law, that question of law can be raised at any stage, even before the Supreme Court
also. The decisions of the learned Single Judges of this
Court are against the instructions, rules and policy
framed by the Government regarding the income limit which
are against the decisions of the Supreme Court. The
learned Single Judges are not entitled to bypass the
relevant instructions, rules and policy framed by the
State Government regarding employment on the basis of
compassionate ground wherein the income of family pension
has also been included. It is complete domain of the
State Government over the policies that can be changed,
modified and altered from time to time. This Court under
Article 226 of the Constitution cannot direct the
authorities of the State Government to ignore or relax
the family pension under the instructions and to consider
the applications for appointments on compassionate
ground. If the instructions, rules or policy prescribe
certain income limit including the family pension per
incuriam that condition cannot be overlooked or ignored
by this Court as held by the Supreme Court in the cases
referred to above. As such, the income criteria
mentioned in the instructions and policy framed by the
State Government, this Court cannot interfere with the
same and cannot direct the authorities concerned of the
State Government contrary to the income criteria
mentioned in the instructions and policy framed by the
State Government even though those instructions and
policy or resolution or circular etc. are not framed
under any statutory Rules under Articles 309 and 162 of
the Constitution of India as the Supreme Court has
directed that those instructions and policy should be
adhered and followed. This Court has no jurisdiction
even to dispense with the income criteria with
retrospective effect prior to 1-1-1996 as provided by the
resolution dated 10-3-2000.
22. Considering the facts and circumstances of the
case, submissions made by the learned counsel for the
parties, decisions of the Supreme Court and this Court
referred to hereinabove and the material on record, we
are constrained to hold that this Court cannot ignore or
strike down the terms and conditions of the instructions
and the policy framed by the State Government from time
to time regarding the income criteria for appointment on
compassionate ground. As such, all the Letters Patent
Appeal are allowed and the impugned judgments and orders
of the learned Single Judges rendered in the concerned
petitions are hereby quashed and set aside. The above
numbered petitions are dismissed and rule issued therein
stand discharged subject to our observations hereafter,
with no order as to costs.
23. However, in L.P.A. No. 344 of 2002 the learned
counsel for the respondent original petitioners of
Special Civil Application No. 11416 of 2000 contended
that the the appellant authority committed grave error in
calculating the family income of the deceased employee,
the income of grand father has also been included such
income of grand father cannot be included as per any
norms or guide lines or terms and conditions of the
Policy / instructions as such this Court is required to
direct the authority concerned to reconsider the case of
the respondent/original petitioner excluding the income
of grand father. Such prayer does not appear to be
unreasonable. It is also submitted that in some of he
cases mentioned above, the respondents have been provided
employment in compliance with the orders of the learned
Single Judges of this Court, they should not be disturbed
even the judgments of the learned Single Judges are not
sustained.??
It
is thus clear that the decision by the appellant-authority was
well-founded and did not call for any interference by entertaining
the petition, as has been done by the learned Single Judge.
Compassionate
appointment is not a matter of right and the Government may fix
criteria for the purpose as a matter of policy and once that is
done, judicial review thereof would not be warranted unless policy
is not properly followed. In the light of what is observed by
earlier Division Bench, with which view we also concur, the Appeal
merits acceptance. It is, therefore, allowed. The order dated 22nd
January, 2003, passed by the learned Single Judge in Special Civil
Application No.10587 of 2002 is hereby set aside. There shall be no
order as to costs.
Civil
Application No.3270 of 2003 is disposed of in the light of dismissal
of the Appeal. Notice is discharged.
(A.L.Dave,
J.)
(Smt.Abhilasha
Kumari, J.)
(sunil)
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