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SCA/15955/2010 7/ 7 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 15955 of 2010
For
Approval and Signature:
HON'BLE
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 ?
=====================================================
SHABIR
SIKANDARBHAI KURESHI - Petitioner(s)
Versus
STATE
OF GUJARAT THROUGH SECRETARY & 2 - Respondent(s)
=====================================================
Appearance :
Mr.A.S.Supehia,
learned advocate for MR SAMIR B GOHIL for
Petitioner(s) : 1,
Ms.Moxa Thakakr,learned ASST.GOVERNMENT PLEADER
for Respondent(s) : 1,
None for Respondent(s) : 2 -
3.
=====================================================
CORAM
:
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
Date
: 14/12/2010
ORAL
JUDGMENT
1. Rule.
Ms.Moxa Thakkar, learned Assistant Government Pleader, waives service
of notice of Rule on behalf of respondents. On the facts and in the
circumstances of the case and with the consent of the learned
advocates for the respective parties, the petition is being heard and
finally decided today.
2. This
petition, under Article 226 of the Constitution of India, has been
filed with the following prayers:
“A)
Quashing and setting aside the order dt.21.8.2010 and directing the
Respondents to consider the case of the petitioner for compassionate
appointment and appoint him on suitable post.
B)
During the pendency and final disposal of this petition, the
Respondents may be directed to appoint the petitioner on
compassionate appointment.
C) To
grant such and further relief as may be deemed fit and proper.”
3. The
brief facts of the case are that, the father of the petitioner, who
was serving as Cash Writer under respondent No.3, expired in harness
on 12-9-2005. The petitioner was a minor at the time of death of this
father. He made an application for grant of appointment on
compassionate grounds to respondent No.3 on 30-9-2005. By letter
dated 28-7-2006, the respondent No.3 asked the petitioner to apply
after attaining the age of majority. The petitioner attained the age
of majority on 9-8-2007 and made application dated 12-9-2007 for
grant of appointment on compassionate grounds. By letter dated
13-9-2007, the respondent No.3 forwarded the application of the
petitioner to respondent No.2. As no decision was taken in the
matter, the petitioner preferred Special Civil Application No.4207 of
2010 in this Court. By order dated 7-4-2010, this Court directed the
respondents to consider the case of the petitioner. Accordingly, the
respondents considered the case of the petitioner and the same was
rejected by impugned order dated 21-8-2010, in view of paragraph 8(B)
of the Government Resolution dated 10-3-2000 and Government
Notification dated 16-3-2005. Aggrieved by this action of the
respondents, the petitioner has approached this Court by filing the
present petition.
4. Mr.A.S.Supehia,
learned advocate for the petitioner, has submitted that the case of
the petitioner is squarely covered by the judgment of this Court in
Ajitsinh Chandrasinh Gohil v. Additional Director General of
Police and Anr. – 2007(3) GLH 313,
whereby, this Court has interpreted policy dated 10.03.2000 and has
held that the said policy does not provide that if the dependent was
minor at the time of the death of his father, his case cannot be
considered for such appointment. It is further submitted that in the
said judgment, it has been laid down that if the dependent is a minor
at the time of death of an employee, the application can be made by
the dependent within two years from attaining the age of majority. In
the present case, as the petitioner has attained majority on
9-8-2007, and the application has been made on 12-9-2007, the
respondents are bound to consider the case of the petitioner for
grant of compassionate appointment. The learned advocate for the
petitioner has brought to
the notice of this Court, order dated 27.08.2009 passed in Letters
Patent Appeal No.403 of 2009 in Special Civil Application No.603 of
2004, whereby, appeal preferred against the above-mentioned decision
of the learned Single Judge in Ajitsinh
Chandrasinh Gohil v. Additional Director General of Police and Anr.
(supra)
[being Special Civil Application No.603 of 2004] has been dismissed
in-limine.
5. I
have heard Mr.A.S.Supehia, learned advocate for the petitioner,
Ms.Moxa Thakkar, learned Assistant Government Pleader and perused the
averments made in the petition and other documents on record.
6. In
Ajitsinh Chandrasinh Gohil v. Additional Director General of
Police and Anr. (supra), the Court has held as under:
“8. Therefore,
in view of these provisions of item no.8 clause (B) referred to
above, in case if the member of the dependent family is minor at the
time of death of concerned Government employee, then, it is necessary
for the authority to wait till such minor member of dependent family
becomes major and in view of that rejection of application on the
ground that the petitioner was not major at the time of death of his
father is not sustainable as per the provisions of the policy dated
10.3.2000. It is not the case of the respondent authority that the
case of the petitioner is not covered by policy dated 10.3.2000.
Clarification made by the State Government in 2000 itself is
providing that if the member of the dependent family was minor at the
time of death of his father or mother or as the case may be, then, it
is necessary for such dependent to make such application within the
period of two years from the date on which he attains majority. In
this case, respondents have not pointed out before this Court that
such application was made by the petitioner beyond two years from the
date of his attaining the age of majority. In view of the aforesaid
provisions of item 8 Clause (B) of the policy dated 10.3.2000,
respondents are not justified in rejecting the case of the petitioner
on the ground that he had not become major at the time of death of
his father but the respondents shall have to consider the case of
such dependent who become major at the relevant time when his
application was being considered….”
7. The
resultant effect of the order dated 27.08.2009
passed in Letters Patent Appeal No.403 of 2009 would be that the
judgment in Ajitsinh Chandrasinh Gohil v.
Additional Director General of Police and Anr. (supra)
has attained finality and the respondents are bound to consider the
case of the petitioner on the basis of the principles laid down
therein, as the petitioner has made the application well within a
period of two years after attaining majority.
8. Accordingly,
the petition is allowed. The impugned order dated 21.8.2010 is
quashed and set aside. The respondents are directed to consider the
case of the petitioner for grant of compassionate appointment,
keeping in view the principles of law laid down in the
above-mentioned judgment. The same shall be done as expeditiously as
possible, and preferably within a period of three months from the
date of receipt of the Writ of this Court.
9. Rule
is made absolute. There shall be no orders as to costs.
(Smt.Abhilasha Kumari,J)
arg
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