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SCA/14220/2010 3/ 9 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 14220 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 ?
=========================================================
VIKRAM
BHURABHAI DANGAR - Petitioner(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
=========================================================
Appearance
:
MS
HARSHAL PANDYA FOR MR PARESH UPADHYAY
for
Petitioner(s) : 1,
MR PRANAV TRIVEDI, ASST.GOVERNMENT PLEADER for
Respondent(s): 1
-3,
=========================================================
CORAM
:
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
Date
: 04/02/2011
ORAL JUDGMENT
1. Rule.
Mr.Pranav Trivedi, 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
counsel 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 :
The
Honourable Court may be pleased to issue a writ of mandamus or any
other appropriate writ, order or
direction to the respondent authorities and may be pleased to
:-
(A) quash
and set aside the impugned communication dated 15.1.2009, Annexure-A
to this petition, whereby the
application of the petitioner for compassionate appointment is
rejected, and
(B) further
be pleased to direct respondent Board to reconsider the case of the
petitioner for appointment on compassionate ground, and
(C) award
the cost of the petition, and
(D) pending
admission and final disposal of this petition, the Honourable Court
may be pleased to respondent authorities to reconsider the case of
the petitioner for appointment on compassionate ground, and/or
(E) grant
any other relief or pass any other order which the Honourable Court
may consider as just and proper in the facts and circumstances of the
case.
3. Briefly
stated, the facts of the case are that, the father of the petitioner,
Shri Bhurabhai Mansurbhai Dangar, who was working as Armed Police
Constable in the Police Department, expired in harness on 9.12.2006,
leaving behind a widow, two sons and a daughter. The petitioner,
being the eldest son in the family, made an application for
compassionate appointment to Superintendent of Police, Junagadh
(respondent No.3), on 8.2.2007, which was forwarded to the Gujarat
Subordinate Service Selection Board for further necessary procedure,
as per letter dated 1.2.2008 of the respondents. The petitioner did
not hear anything with regard to his above-mentioned application and
respondent No.3 informed the petitioner on 15.1.2009 that the said
application has been rejected by the authorities on the ground that
he has not acquired the minimum qualification, that is, Secondary
School Certificate Examination (‘SSC’, for short), within the
stipulated period of six months from the date of death of his father.
The petitioner, thereafter, appeared in the SSC examination in
March, 2007, but could not clear one paper, which ultimately was
cleared by the petitioner in July, 2007, that is, shortly after the
period of six months after the death of his father on 9.12.2006.
Aggrieved by the rejection of the application, the petitioner has
approached this Court by filing the present petition.
4. Ms.Harshal
Pandya, learned advocate for Mr.Paresh Upadhyay, learned
counsel for the petitioner has submitted that the rejection of the
application of the petitioner on the ground that he has not passed
the SSC Examination within six months from the date of death of his
father is unjust and arbitrary, as the said period of six months
expired on 9.6.2007 whereas the petitioner obtained the necessary
qualification in the month of July, 2007 itself. It is further
submitted that the embargo of six months contained in Government
Resolution dated 10.3.2000 is not realistic, as it is not in the
hands of the dependent of the deceased employee, to clear the
examination within the stipulated period of six months, as the date
of death of the employee cannot be known in advance.
5. The
learned counsel for the petitioner has brought to the notice of this
Court, order dated 15.10.2010, passed in Special Civil Application
No.8553/2010 wherein the Court had directed the respondents to
consider the case of the petitioner therein for appointment on
compassionate grounds, in similar circumstances. It is stated by the
learned advocate for the petitioner that the respondents may be
directed to consider the case of the petitioner in the light of the
observations of the Court made in this judgment.
6. Mr.Pranav
Trivedi, learned Assistant Government Pleader submits that the
petitioner did not obtain the requisite qualifications of SSC within
a period of six months from the date of death of his father,
therefore, his request has been rightly rejected.
7. I
have heard the learned counsel for respective parties and perused the
averments made in the petition and other documents on record.
8. In
Special Civil Application No.8553/2010, decided by order dated
15.10.2010, the petitioner therein had made an application seeking
appointment on compassionate grounds within the time limit of six
months. However, he did not possess the minimum educational
qualifications of new SSC on the date of filing his application,
therefore, such appointment was denied to him. In such a situation,
the observations made in the said order are reproduced hereinbelow :
3. Any
insistence for a particular qualification that too for giving
appointment in Class-IV category while considering the case for
appointment on compassionate ground is nothing but indirectly
frustrating the object of giving appointment on compassionate ground,
more so, when the candidate is not possessing qualification of new
SSC on the date of his filing the application and the result is
declared thereafter. In the present case, the result was declared on
31.5.2007. The action of the authority, rejecting the application on
this ground is not only unjust, but arbitrary as it frustrates the
entire object of providing the scheme for giving appointment on
compassionate ground.
3.1 Taking
into consideration the fact that the father of the petitioner was
serving as Peon in the office of the Collector, Porbandar, what is
claimed by the petitioner is only appointment on compassionate ground
and the object of floating the scheme for giving appointment on
compassionate ground is to see that the family is not pushed into
pitiable condition on sad demise of bread earner. In the present
case, the petitioner was not holding the new SSC examination
qualification is not something which was within the control of the
petitioner and more particularly unfateful event of the death of the
petitioner’s father was certainly not within the control of anybody.
It cannot be foreseen by the petitioner to expedite the getting of
required qualification only because his father is going to expire on
a particular day similarly it is not possible for the father of the
petitioner to postpone the death until his son gets the qualification
of new SSC so as to enable him to get appointment on compassionate
ground.
4. In
view of the aforesaid discussion, this Court finds that the decision
of the authority of denying the appointment on compassionate ground
to the petitioner is unjust, arbitrary and is required to be quashed
and set aside. It is accordingly quashed and set aside. The
authorities are directed to consider and appoint the petitioner on
compassionate ground within six weeks from the date of receipt of
this order. Rule is made absolute to the aforesaid extent. No
costs.
9. In
the present case, the impugned order dated 15.1.2009 reveals that the
case of the petitioner for appointment on compassionate grounds has
been rejected, as he did not acquire the qualification of SSC within
a period of six months from the date of death of his father. In view
of the observations made in order dated 15.10.2010 reproduced
hereinabove and the statement of the learned advocate of the
petitioner, the case of the petitioner requires reconsideration at
the hands of the respondents.
10. It
is stated by Ms.Harshal Pandya, learned advocate for Mr.Paresh
Upadhyay, learned counsel for the petitioner that order dated
15.10.2010 in Special Civil Application No.8553/2010 has not been
challenged by the respondents. Considering the above facts and
circumstances and as the petitioner has now passed the requisite
examination, the interest of justice would be met, if the respondents
are directed to reconsider the case of the petitioner in right
perspective, keeping in view the observations made in order dated
15.10.2010 passed in Special Civil Application No.8553/2010. It is so
directed. The decision, after reconsideration, may be conveyed to
the petitioner at the earliest. The petitioner shall be at liberty to
approach this Court, if aggrieved.
The
petition is disposed of, in the above terms, without entering into
the merits of the case. Rule is
made absolute to the above extent only.
Direct
Service is permitted.
(Smt.
Abhilasha Kumari, J.)
~gaurav~
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