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SCA/437320/2009 6/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 4373 of 2009
For
Approval and Signature:
HONOURABLE
MR.JUSTICE M.R. SHAH
=========================================
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 ?
=========================================
JAYESHKUMAR
MAGANLAL VANIYA - Petitioner(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
=========================================
Appearance :
MR.
S.S. TRIVEDI FOR HIMANSU M PADHYA for
Petitioner(s) : 1,
MS. KRINA CALLA, LEARNED AGP for Respondent(s)
: 1,
MR. HS MUNSHAW for Respondent(s) : 1 -
3.
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 12/05/2009
ORAL
JUDGMENT
Rule.
Ms. Calla, learned AGP waives service of notice of Rule on behalf of
the respondent State. With the consent of the parties, the matter is
taken up for final hearing today.
By
way of this petition under Article 226 of the Constitution of India,
petitioner has prayed for an appropriate writ, direction and order
directing the respondents to consider the case of the petitioner for
compassionate appointment.
It
is the case on behalf of the petitioner that father of the
petitioner has died on 22.2.2007 while in service. That immediately
on 23.3.2007 petitioner applied for compassionate appointment and
his application has been rejected by the respondent authorities on
the ground that the family of the applicant is getting monthly
pension and, therefore, as per the policy / G.R dated 29.3.2007, the
petitioner is not entitled to compassionate appointment as the
family cannot be said in pathetic condition. Hence, the petitioner
has preferred the present Special Civil Application under Article
226 of the Constitution of India.
Mr.
Trivedi, learned advocate for Shri HM Padhya, learned advocate
appearing on behalf of the petitioner has vehemently submitted that
the respondent authorities have materially erred in rejecting the
application of the petitioner for compassionate appointment relying
upon the resolution / policy dated 29.3.2007. It is submitted that
the application of the petitioner for compassionate appointment was
required to be considered considering the policy / Government
Resolution which was prevailing at the time when the petitioner
submitted application i.e. as on 23.3.2007. It is submitted that
prior to the Government Resolution dated 29.3.2007 there was no
income criteria and, therefore, the action of the respondent in
rejecting the application of the for compassionate appointment
relying upon the subsequent resolution/policy deserves to be quashed
and set aside and the respondents are directed to consider the case
of the petitioner considering the policy/ Government Resolution on
compassionate appointment which was prevailing at the time when the
petitioner was submitted application i.e. 23.3.2007.
Mr.
Trivedi, learned advocate for Shri HM Padhya, learned advocate
appearing on behalf of the petitioner has heavily relied upon the
decision of the learned Single Judge of this Court in Special Civil
Application No. 24534 of 2007, confirmed by the Division Bench vide
order dated 5.9.2008 as well as another decision of the learned
Single Judge in Special Civil Application No. 5430 of 2004 confirmed
by the Division Bench in Letters Patent Appeal No. 49 of 2008 vide
order dated 4.2.2008, by which the Division Bench has directed the
respondents to consider the application for compassionate
appointment considering the policy / Government Resolution which was
prevailing at the time when the application was submitted for
compassionate appointment. By making above submissions and relying
upon the above decisions, it is requested to allow present Special
Civil Application.
Petition
is opposed by Shri JK Shah, learned AGP by submitting that looking
to the retiral benefit received by the petitioner and his family
members and amount of family pension, it cannot be said that the
financial position of the petitioner and his family is so pathetic
which warrant appointment on compassionate ground and, therefore,
application of the petitioner is rightly rejected.
Having
heard the learned advocates appearing on behalf of the respective
parties and it is not in dispute that the petitioner submitted
application for appointment on compassionate ground on 23.3.2007 .
It is also not in dispute that while rejecting the application of
the petitioner for compassionate appointment the respondent has
relied upon the Government Resolution dated 29.3.2007. As held by
the Hon’ble Supreme Court as well as this Court in catena of
decisions, more particularly, decisions of the learned Single Judge
in Special Civil Application No. 24534 of 2007, confirmed by the
Division Bench of this Court in Letters Patent Appeal, application
is required to be decided and considered considering the policy/G.R
prevailing at the time when the application is submitted not
considering the Policy/Resolution prevailing at the time when the
application is decided. It is also not in dispute that prior to the
Government Resolution dated 29.3.2007 there was no income criteria.
Under the circumstances, the impugned decision of the respondent in
rejecting the application of the petitioner for compassionate
appointment considering the Government Resolution dated 29.3.2007,
deserves to be quashed and set aside and the application of the
petitioner for compassionate appointment is required to be
considered considering the policy/resolution prevailing as on
23.3.2007 i.e. the day on which the application of compassionate
appointment was submitted.
For
the reasons stated above, petition succeeds. The impugned decision /
communication rejecting the application of the petitioner for
compassionate ground is hereby quashed and set aside and the matter
is remanded to the appropriate authority to reconsider the
application of the petitioner for appointment on compassionate
ground, considering the policy/G.R prevailing as on 23.3.2007. The
respondents are directed to consider the case of the petitioner
considering the policy/G.R of the compassionate appointment which
was prevailing as on 23.3.2007 and such decision to be taken by the
respondent authority within a period of three months from today and
communicate the outcome of the same to the petitioner forthwith.
Rule is made absolute to the aforesaid extent. No costs. Direct
service is permitted.
(M.R.SHAH,J.)
kaushik
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