JUDGMENT
K.R. Vyas, J.
1. The petitioner, one of the sons of the deceased Monabhai Punabhai Khatana, who was serving as Compounder at village Patanvav in the Alopathy Clinic run by the District Panchayat, Rajkot, has challenged the order at Annexure-C dated November 12, 1981 passed by the District Health Officer conveying the decision of the State Government not to appoint the petitioner on compassionate ground as the income of the family of the deceased exceeded Rs. 400/- per month. The petitioner has, therefore, prayed to direct the respondent to reconsider the case of the petitioner for appointment to the post of the clerk or on any equivalent post and to appoint hint on such post forthwith.
2. The petitioner belongs to the community recognised as backward class community by the Baxi Panch. The petitioner has passed S.S.C. Examination. The father of the petitioner, as stated above was serving as Compounder under the establishment of the respondents and he expired on September 18, 1976 as a permanent Govt .servant. It is the case of the petitioner that the deceased father of the petitioner left behind him his widow, three sons and a daughter and that the petitioner is the youngest son of the deceased. The elder son of the deceased Karanbhai who is serving in the Railway at Sikka is residing separately from the family of the petitioner since the life time of the deceased, and from his meagre income, he is not able to extend any financial support to the petitioner’s family and the only source of income of the petitioner’s family is the pension of the deceased father and the income out of the labour work done by his elder brother Khochan who is illiterate. According to the petitioner, his mother is receiving the amount of pension including the allowances amounting to Rs. 2,664/- per annum and the average income of the elder brother, who is doing labour work is Rs. 936/ – per annum. Thus, total income of the petitioner’s family is Rs. 3,600/-per annum. According to the petitioner, at the time of the death of his father, he was minor and studying in S. S.C. After passing the S.S.C. examination he could not continue further study because of the financial crisis and the petitioner could not get any job and has remained unemployed. According to the petitioner, the family has no movable or immovable property except the aforesaid average annual income of Rs. 3600/-. It is the case of the petitioner that the Government has for the welfare of its employees introduced a scheme to absorb the heir of deceased employee who has expired during employment and the total income of his family does not exceed Rs. 400/-p.m. According to the petitioner, he was eligible for employment under the establishment of the respondent and with a view to take the benefits of the scheme, he made an application dated March 17, 1979 addressed to the District Development Officer, Rajkot requesting him to give employment as a Jr. Clerk. In reply thereto, the petitioner received a prescribed form which was to be filled in by him and the petitioner, forwarded the same duly filled in to the competent-authority on December 26, 1979. It is alleged by the petitioner that as no decision was taken by the. Competent authority, the petitioner made a representation to respondent No. 2 on September 15, 1981 requesting him to decide his application for giving him appointment by pointing out the pension income of his family, i.e. Rs. 222A per month as per pension rule and, it is deducted by 50% in August 1982 and it would be very difficult for the petitioner’s family to cope up with the bare necessities of life in these hard days within this small income. However, to the shock and surprise of the petitioner, the petitioner received a letter dated November 12, 1981 from the District Health Officer, Rajkot informing him that after considering the case of the petitioner, it has been found by the Government that the monthly income of the family of the deceased Monabhai is more than Rs. 400/- per month and, therefore, the application of the petitioner for appointment in service is not accepted. The said decision is under challenge in this petition.
3. In the affidavit-in-reply filed by one Shri S. K. Akhani, Under Secretary, Panchayat & Rural Housing Development Gujarat State, reliance is placed on the guidelines prescribed by the General Administration Department, Government of Gujarat vide D. 0. letter No. 1076 – 408-K, dated May 12. 1977 under which a member of the deceased employee can be considered for employment in the panchayat services. Condition No. 5 of the said resolution on which reliance is placed is reproduced below :
4. It should be established that the family should be in really indigent circumstances. For ascertaining such circumstances, the amount of monthly income of such family from all sources and irrespective of the number of dependents in the family should not be more than Rs. 400/- (Rupees Four hundred) per month. The information on the following points should be collected before a decision is taken in such cases :-
(a) Amount of family pension, Death-cum-Retirement Gratuity. General Provident Fund, Insurance, if any, received by the family of deceased Government servants.
(b) Assets, e.g., house, landed property left by the deceased Government servant and income derived therefrom.
(c) Share in other assets, shares, etc.
(d) Any other sources of income and its amount.
(e) Particulars of dependents in the family, e.g. name, age, qualification occupation, relation with deceased Government servant and their income.
5. Mr. Pujari learned AGP on behalf of the respondent has submitted that as per the aforesaid condition, the income of the family is required to be taken into account for considering the case of the petitioner. In the submission of the learned AGP, in the instant case, the income of the family from all sources including the income of the elder brother of the petitioner, who is serving in Railway, is also required to be taken into account and, considering the same, the income of the deceased’s family exceeded Rs. 400/- per month, and therefore, the petitioner is not entitled to be considered for the appointment on compassionate ground. On the other hand, as per the case of the petitioner, the elder brother of the petitioner Karanbhai who is serving in the Railway at Sikka is residing separately from the family of the petitioner since the life time of the deceased father of the petitioner and from his small income, he is not able to extend any financial support to the petitioner’s family. As he is not being helpful to the family of the petitioner, the income of his elder brother could not been included in the income of the family of the petitioner.
The petitioner, in support of his say, has in fact, produced the certificate of the Sarpanch of Patanvav Gram Panchayat alongwith his application made to the authorities. The Development Officer. District Panchayat, Rajkot in his forwarding letters dated January 6, 1981 and June 22.1981 to the Development Commissioner, Gandhinagar for giving employment to the petitioner on compassionate ground, recommended to give appointment as Jr. Clerk. In the said letter, it has been specifically mentioned that the elder brother of the petitioner is serving in the Railway at Sikka and is staying there and is not helping the family of the petitioner as per the certificate of the Sarpanch and Talati-Cum-Sccretary. In fact, the Development Commissioner in his forwarding letter to the Deputy Secretary, Panchayat Housing & Rural Development Department dated July 31, 1981 has also staled that income of the petitioner is below Rs. 400/- p.m. and, therefore, the case of the petitioner is required to be considered. The State Government, as stated above, ignoring the mid recommendation rejected the case of the petitioner to appoint him on compassionate ground relying on the fact that the elder son of the deceased is serving in the Railway and is getting Rs. 559/-p.m. and as the family of the deceased is getting Rs. 2201- by way of pension, the income of the family exceeded to Rs. 400/-, and, therefore, the recommendations are rejected.
6. Reading the aforesaid condition No 5 of the guidelines of the resolution issued by the General Administration Department of the State of Gujarat it is no doubt true whether a family is in indigent circumstances can be ascertained from the amount of family pension, death-cum-retirement Gratuity, General Provident Fund, Insurance, if any received by the family of the deceased Government servant, the assets, e.g house, landed property left by deceased Government servant and the income derived therefrom, share in other assets, shares, etc. any other sources of income and its amount, and particulars of dependents in the family, e.g. name, age, qualification, occupation, relation with deceased Government servant and their income.
7. It is, therefore, contended against the petitioner that as the elder brother of the petitioner is in the Railway services, his income is not inclusive in the income of the family and in that view of the matter, as the income of the petitioner’s family exceeded Rs. 400/- per month, the petitioner is not entitled to the benefits of the resolution of the Government of Gujarat dated July 12, 1977. The fact that the purpose of providing appointment on compassionate ground is to mitigate the hardship due to the death of the bread winner of the family, and the petitioner fulfills all the qualifications including the educational qualifications, for appointment as Jr. Clerk on compassionate ground, he has been denied the benefit on the ground that his elder brother is in the service of Railways, his income can also be included in the income of the family is absolutely an absurd proposition, especially when it is an undisputed fact that the elder brother is staying separately with his family since the time of the deceased father of the petitioner and is serving in the Railway at Sikka. Therefore, he is in no way helpful to the family of the petitioner. In view of this, it is difficult to accept the submission of the learned AGP that as per the requirement of condition No. 5 of the Govt resolution, the income of the elder brother of the petitioner is also required to be added in the income of the petitioner’s family. At the time of hearing of the petition, my attention was invited to the subsequent D. 0. Letter No. 1084-K, dated February 16, 1987 of the General Administration Department superseding the earlier decision that one dependent of the family of the deceased can be provided employment on compassionate ground whose income does not exceed Rs. 6007- p.m. from all sources and that the income of family member who is staying separately from the family of the deceased cannot be taken into account as income of the family. Reading the said resolution it is clear that the Government has reconsidered its earlier resolution and taken the said decision. Mr. Pujari, learned AGP has submitted that, as specifically provided in the said letter of the Government, the policy has come in force with effect from February 1, 1987 and that would not affect the previous decision taken in the case, the petitioner is not entitled to get the benefits of the changed policy of the Government. This submission is required to be rejected straightway. As observed by me hereinabove, as per the earlier resolution dated May 12, 1977, the petitioner was entitled to be considered for appointment on compassionate ground which was : available to him as he fulfilled the requirements stated in the said resolution. The object behind issuing the Government resolution is to see mat on the death of an employee, during employment his dependents are not rendered helpless. It is only after his satisfying the requirement, the dependent would be entitled to get the appointment on compassionate ground. Thus, a right is created in favour of the dependent for being considered on compassionate ground. Therefore, if the submission of the Learned AGP is accepted that the subsequent resolution dated February 16, 1987 is prospective in operation and therefore, the benefits are not available to the dependents like the petitioner it would result in the absurd situation and run counter to the Government policy to extend the benefit of appointment on compassionate ground. The fact that the Government has changed its decision by excluding the earning member of the family would clearly go to suggest that the Government wanted to help such needy family of the deceased. The word “Compassion” itself suggests a fellow feeling or sorrow for the suffering of another, or to have compassion for or pity or mercy upon. Therefore, while construing a resolution or for that matter a provision contained in such resolution, the object and purpose of the resolution must be given priority over the narrow or strict interpretation of such resolution. The ground on which the authority has refused compassionate appointment to the petitioner appears absurd. Earning of elder brother of the family does not mean that family income, more particularly when he is separate with his own family from the family of the dependents of the deceased employee. In view of this, I am clearly of the view that the respondents were not justifying in refusing appointment to the petitioner. In any case, the subsequent circular dated February 16, 1987 is also applicable to the case of the petitioner. My views are supported by the judgment of this Court rendered by the learned single Judge (Coram: S.D. Shah J) in S. P. Zala and Ors. v. The Secretary, Government of Gujarat, Education Department and Ors., reported in (1993-I-LLJ-252). In the said judgment the three petitioners applied for the appointment on compassionate ground in the respondents’ school inter alia stating, that they are entitled to the said appointment on the compassionate ground under Government policy laid down in Government resolution dated July 4, 1988. It was the say of the respondents authorities that the said Government resolution is prospective in operation and would apply only to the dependents of employees who have died after the date of the resolution and, therefore, the dependents of the employees who died prior thereto could not get any benefit under the said resolution. The learned single Judge after relying on the judgment rendered by mis Court in the case of Divyaben Lana v. Division Controller, S. R. T. C., reported in (1990-I-LLJ-132) has observed that the policy underlying the Government Resolution is to be ascertained first, and if the intention of the Government was to extend the benefit of appointment on compassionate grounds to the dependents of the deceased member of teaching or non-teaching staff of Secondary or Higher Secondary Schools it will not be just and proper to read the Government resolution as one operative from July 4, 1988 and as one applicable to only those employees who have expired subsequent to July 4, 1988. Accepting such an interpretation would, in my opinion, render number of dependents ineligible at least for consideration for appointment on compassionate grounds. All the dependents of those employees who have expired prior to July 4, 1988 will be rendered ineligible despite stipulation in the resolution itself that the dependents of the deceased employees can apply for appointment on compassionate grounds within a period of five years
from the date of death of the employees. In substance, the resolution retroacts and there is no need to curtail such retroactive operation as it achieves the wholesome inderlying object of the scheme.
8. Mr. Pujari. learned AGP submitted that the petition is itself not maintainable as the petitioner has not alleged breach of any statutory provisions of any rules or regulations. In support of his submission, he has relied upon a decision of the Supreme Court rendered in the case of Life Insurance Corporation of India v. Asha Ramchandra Ambekar and Ors. reported in(1994-II-LLJ-173). Reading the said judgment, I fail to understand as to how the said judgment is applicable to the facts of the present case. In the case before the Supreme Court, the High Court directed the Life Insurance Corporation of India. a statutory corporation to appoint the petitioner on compassionate ground. The said decision was challenged on the ground that the said order was contrary to the provisions of statutory regulations and instructions. It appears that the High Court, in this case did not examine whether the statutory preconditions for compassionate appointment were satisfied. The High Court directed the Corporation to appoint the petitioner on compassionate ground. The Supreme Court taking the exception of the order of the High Court ultimately held that hardship of a candidate does not entitle him to compassionate appointment dehors statutory provisions. The, Supreme Court was also of the view that a jurisdiction under mandamus cannot be exercised in such a fashion and ultimately directed consideration of the claim of the second respondent of the case. There cannot be any dispute about this proposition. In any case, this Court can certainly direct the authorities to consider the case of the petitioner.
9. Mr. Pujari learned AGP then submitted that in the instant case, the petitioner is claiming benefits under the executive instruction having no force of law as there is no statutory breach of law, therefore, the petitioner is not entitled to move the jurisdiction of mis Court under Article 226 of the Constitution of India. The said submission has not impressed me at all. As observed earlier, the Government has framed the policy and issued necessary guidelines with the object and for the purpose to seeing that the helpless and/or destitute dependent of the deceased employee who has no source of maintenance given employment on compassionate ground if the defendant fulfils the requirements of the policy. He is entitled to be considered, as a right accrued in his favour under Article 21 of the Constitution of India and to approach this Court for ventilating his grievance of not following the policy by the State Authorities.
10. In view of above, the petition is allowed. The impugned orders dated November 12, 1981 and December 3, 1981 Annexure-C Colly passed by respondent No. l not considering the case of the petitioner as eligible for consideration on the basis of Government resolution dated May 12, 1977 is set aside. It is held that in view of the subsequent resolution issued by the, General Administration Department, Sachivalaya, Gandhinagar dated February 16, 1987 applicable to the petitioner and the respondent No. 1 is directed to consider the case of the petitioner for appointment on Compassionate ground afresh. In light of the observations made hereinabove, the respondent No. 1 is directed to pass appropriate order within 4 weeks from the date of the receipt of this Writ of this Court and communicate the said decision to the petitioner. The rule is made absolute with no order as to costs. The office is directed to send the Writ of this order to the respondent No. 1 forthwith.