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LPA/535/2011 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 535 of 2011
In
SPECIAL
CIVIL APPLICATION No. 3213 of 2007
with
CIVIL
APPLICATION NO. 3792 OF 2011
in
LETTERS
PATENT APPEAL No. 535 OF 2011
=========================================================
ATULKUMAR
BECHARBHAI PARMAR - Appellant(s)
Versus
STATE
OF GUJARAT & 3 - Respondent(s)
=========================================================
Appearance
:
MR
SP MAJMUDAR for
Appellant(s) : 1,MR KUNTAL A JOSHI for Appellant(s) : 1,
MR NJ
SHAH, ASSTT.GOVERNMENT PLEADER for Respondent(s) : 1, 3,
None for
Respondent(s) : 2,
4,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE V. M. SAHAI
and
HONOURABLE
MR.JUSTICE G.B.SHAH
Date
: 23/03/2011
COMMON
ORAL ORDER
(Per
: HONOURABLE MR.JUSTICE V. M. SAHAI)
1. We
have heard Mr.S.P.Majmudar, learned counsel for the appellant and
Mr.N.J.Shah, learned Asstt. Govt. Pleader appearing for the
respondents.
2. The
father of the petitioner who was in Government service, died in
harness. The appellant- petitioner made an application for
appointment on compassionate ground, to the Director of Agriculture,
Govt. of Gujarat, which was rejected on 21.11.2000. The petitioner
filed Special Civil Application No. 5435 of 2002 in which, a
direction was issued to the respondent authority to consider his case
under the Government Resolution dated 10.3.2000 and 7.9.2002. Since
he was not appointed on compassionate ground, he filed another
Application being Misc.Civil Application No.1078 of 2003 in the
earlier writ petition for issuance of contempt proceedings. The said
application was disposed of on 2.9.2003, on the statement of learned
Asstt.Govt. Pleader that his application for compassionate ground
would be considered. Thereafter, a direction was issued by
respondent Gujarat Subordinate Services Selection Board to the
Director General of Police to consider the appointment of the
appellant-petitioner on Class-III post of un-armed Police Constable.
On 1.7.2003, the appellant was appointed as un-armed Police
Constable, but he failed in physical test.
3. Thereafter,
the Director General of Police wrote a letter to the Gujarat Public
Service Commission to find out a post for the appellant-petitioner,
but ultimately, the Director General of Police, on 18.12.2003 himself
appointed the appellant as an armed Police Constable and was posted
at Anand. Due to the ill-health, the petitioner could not attend the
training of armed Police Constable and produced the medical
certificate and requested for a change of cadre. The appointment of
the appellant as armed Police Constable was cancelled and he was
posted as Clerk in the office of the Police Commissioner, Ahmedabad.
Another order was issued on 24.3.2005 by which, it was ordered that
the appellant would be paid a fixed monthly salary of Rs.2,500/- as a
Junior Clerk for a period of five years. It is this order, which is
challenged by the appellant before the learned Single Judge as he
claimed that he was appointed as armed Police Constable, he was
getting regular pay scale of Rs.2750-4400 per month and now he has
been appointed on a fixed pay.
4. Mr.Majmudar,
learned counsel vehemently urged placing reliance on the Government
Resolution dated 7.9.2002 which provides that if a person is entitled
to receive compassionate appointment, then he would be entitled to
the pay scale of that post.
5. We
are of the considered opinion that once the appellant-petitioner was
found unsuitable for appointment for the post of unarmed Police
Constable, he ought not to have been appointed as armed Police
Constable. There is nothing on record to suggest that he was
successful in physical test. Further, once he was appointed as
un-armed Police Constable, his claim for compassionate appointment
came to an end. It was not open to the respondents to again appoint
him as armed Police Constable and to change the cadre from the post
of armed Police Constable to the post of Junior Clerk. As the Rules
for compassionate appointment and the scheme of compassionate
appointment do not provide that the compassionate appointment
appointee can change his cadre and his request can be accepted.
Compassionate appointment is given as one time measure. However, even
then, the respondents took a liberal view and have granted fresh
appointment to the appellant as Junior Clerk on a fixed salary of
Rs.2,500/- per month in pursuance of the Government Resolution dated
15.6.2004. We do not find any illegality in the order of the learned
Single Judge.
6. From
the record, we find that the appellant was appointed on compassionate
ground as armed Police Constable, but he submitted a medical
certificate that he was unable to discharge his duty and wanted a
change. Therefore, his appointment was cancelled. Once the
appointment was cancelled, it is not open to the respondents to grant
any fresh appointment to the appellant either on the post of Junior
Clerk or any other post because compassionate appointment is one time
measure. However, the respondents took a sympathetic view and gave
him fresh appointment in pursuance of the Government Resolution on
fixed pay of Rs.2,500/- per month on the post of Junior Clerk.
Sufficient liberal attitude has already been taken by the respondents
in favour of the appellant. Therefore, we are not inclined to
interfere with the impugned order. We do not find any illegality in
the order passed by the learned Single Judge dated 3.5.2010 in
Special Civil Application No.3213 of 2007. The appeal fails and is
dismissed accordingly.
7. In
view of the order passed in the main appeal, the Civil Application
for stay does not survive and it is also dismissed accordingly.
(V.M.Sahai,
J.)
Sreeram. (G.B.Shah,
J.)
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