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SCA/12928/2011 7/ 7 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 12928 of 2011
=========================================================
KAUSHIK
RATILAL MANDANI - Petitioner(s)
Versus
THE
STATE OF GUJARAT THRO SECRETARY & 1 - Respondent(s)
=========================================================
Appearance
:
MR
DM DEVNANI for
Petitioner(s) : 1,
MR ANAND SHARMA ASST.GOVERNMENT PLEADER for
Respondent(s) : 1,
None for Respondent(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 30/08/2011
ORAL
ORDER
1.0 Heard
learned advocate Mr. Devnani appearing on behalf of the petitioner
and Mr. Anand Sharma, learned AGP appearing on behalf of the
respondent State authorities.
2.0 The
application made by the petitioner for compassionate appointment has
been rejected on 19th January, 2006 on the ground that on
the date of application, petitioner was minor and he had not become
major within a period of limitation prescribed in the policy.
Therefore, application for compassionate appointment has been
rejected.
3.0 Learned
advocate Mr. Devnani submitted that the father of the petitioner was
working as a Tracer with the respondents since many years and expired
on 19th September, 2003 during the course of employment.
The application for compassionate appointment has been made on 3rd
October, 2003 by the petitioner as per Government Resolution. The
date of birth of the petitioner is 8th June, 1986 and
therefore, on the day of death of father of the petitioner he was
minor and have not become major within a limitation prescribed under
the policy, and, therefore, application has been rejected.
4.0 Mr.
Devnani, learned advocate relied upon decision rendered by Division
Bench of this Court (Coram: Hon’ble Mr. Chief Justice S. J.
Mukhopadhaya and Hon’ble Mr. Justice K. M. Thaker) in Letters Patent
Appeal No.2615 of 2010 in Special Civil Application No. 13658 of 2009
on 14th December, 2010, which has been quoted as under:
” The
matter relates to compassionate appointment. The father of the
petitioner-Late Shri Mahendrasinh Gohil was serving as a Gujarati
Typist in the Panchayat Gram Gruh Nirman & Gram Vikas Department
of the State. Shri Mahendrasinh Gohil died in harness on 21st
June 2005. The appellant, who had completed 17 years of age, applied
for compassionate employment within
time [ie., six months] on 30th
August 2005 with all necessary documents but the respondents rejected
it on 6th
January 2006 on the ground that the applicant was minor. On attaining
majority ie., 18 years of age on 28th
November 2006, the appellant applied afresh
for compassionate appointment, but this time, it was rejected on the
ground that he had not applied within
the prescribed period of six months. Learned Single Judge having
dismissed the writ
petition, the present Appeal has been preferred.
Learned
counsel for the appellant submitted that the application for
compassionate appointment was preferred within
time; the appellant having attained majority within
one and a half year of the death of his father, there being no delay,
therefore, the respondents ought to have considered his case on
compassionate grounds.
Per
contra,
learned State counsel submitted that initially when the application
was filed, the appellant was minor and subsequently on attaining the
age of majority when he filed the application, the same being barred
by the period of limitation prescribed, was rightly rejected by the
authorities.
We
have heard learned counsel for the parties and perused the record.
It
is not in dispute that the appellant technically applied
within time on 30th
August 2005. If he was minor, the matter ought to have been kept
pending by the respondents, as he was to attain majority within few
months. It is also not in dispute that compassionate employment was
required by one of the members of bereaved family. That ground
having not taken in the order of rejection by the respondents, we are
of the view that they should reconsider the case of the appellant for
compassionate appointment.
For
the reasons aforestated, while we are setting aside the letter dated
12th
January 2009 issued by the 3rd
respondent/competent authority and the order dated 24th
February 2010 passed by the learned Single Judge in Special Civil
Application No. 13658/2009, remit the case to the
respondents/competent authority with a direction to consider the case
of the appellant for compassionate appointment on merit within
two months from the date of receipt/production of the copy of this
Order.
Appeal
is allowed with the aforesaid observation and direction but there
shall be no order as to costs.”
5.0 Mr.
Devnani, learned advocate also relied upon one recent decision of
Madras High Court in case of Mohanambal vs. Director, Land and
Survey Department, Kancheepuram District and others Vs. Director,
Land and Survey Department reported in 2011 (2) MLJ 47. The relevant
discussion made by Madras High Court in paras:8 to 12 are quoted as
under:
“8. The
petitioner’s mother immediately applied for compassionate appointment
after the death of petitioner’s father. The second respondent having
not taken the ground, which is now taken in the impugned order, for
rejecting the earlier claim made by the petitioner, I am of the view
that the reason stated in the impugned order viz. petitioner has not
submitted the application within three years from the date of death
of her father, can not be sustained. This Court directed the
petitioner to produce an income certificate of the petitioner’s
family recently obtained, to verify the financial status of the
family as on today. The learned counsel for the petitioner produced
an income certificate dated
23.11.2010 issued by the Tahsildar, Ambattur, wherein it is stated
that the petitioner’s husband is doing cooli work and earning Rs.
2000/- per month.
9. Similar
issue was considered by the Supreme Court in the decision in Syed
Khadim Hussain Vs. State of Bihar (2006) 9 SCC 195 wherein also the
Supreme Court considered the fact that the wife of the deceased
having applied for compassionate appointment in time and as she was
found not eligible, the application submitted by the other legal heir
was directed to be considered even after the lapse of eleven years.
In paragraphs 5 and 6 of the said decision the Supreme Court held
thus,
“5. We
are unable to accept the contention of the counsel for the State, in
the instant case, the widow had applied for appointment within the
prescribed period and without assigning any reasons the same was
rejected. When the appellant submitted the application he was 13
years’ old and the application was rejected after a period of six
years and that too without giving any reason and the reason given by
the authorities was incorrect as at the time of rejection, of the
application he must have crossed 18 years and he could have been
very well considered for appointment. Of course, in the rules framed
by the State there is no specific provision as to what should be
done in case the departments are minors and there would be any
relaxation of age in case they did not attain majority within the
prescribed period for submitting application.
6.As
the widow had submitted the application in time, the authorities
should have considered her application. As eleven years have passed
she would have not be in a position to join the government service.
In our opinion, this is a fit case where the appellant should have
been considered in her place for appointment. Counsel for the State
could not point out any other circumstances of this case, we direct
the respondent authorities to consider the application of the
appellant and give him appropriate appointment within reasonable time
at least within a period of three months. The appeal is disposed of
in the above terms. No costs.”
10. The
learned Government advocate cited the decision in Sanjay Kumar Vs.
State of Bihar AIR 2000 SC 2782:(2000) 7 SCC 192:(2000) 1 MLJ 44:
2000-III-LLJ-1004, which has no application to the
facts in this case as the claimant in the cited case applied for
compassionate appointment for the first time after eight years.
Similar claim of compassionate ground appointment was rejected in the
decision in Punjab National Bank Vs. Ashwinikumar Taneja AIR 2004 SC
4155: (2004) 7 SCC 265: 2004-III-LLJ-536 on the ground of
non existence of financial hardship. Relief was denied to person in
the decision in Santosh Kumar Dubey vs. State of Uttar Pradesh (2009)
6 SCC 481: (2009) 5 MLJ 1284 on the ground that even though a person
was not found traceable for seven years even thereafter within five
years, no claim for compassionate appointment was made by the legal
heir.
11. Similar
claim of the deceased Tamil Najdu Electricity Board Employee was
considered and relief granted by the Division Bench of this Court in
Indirani Ammal Vs. Chief Engineer, TNEB W.A.No. 3050 of 2003 dated
8.3.2005 (P. SATHASIVAM, J, (as he then was) and S.K.K, J). The said
decision was confirmed by the Supreme Court in Civil Appeal no. 2039
of 2006 dated 30.3.2010. Another Division Bench of this Court in W.
A. No. 42 of 2007 dated 2.7.2009 also took same view, which was also
confirmed by the Supreme Court in SLP (C) No. 8305 of 2010 dated
6.7.2010. The contra view taken by another Division Bench of this
Court was set aside by the Supreme Court in C. Appeal no. 2858-2859
of 2010 dated 30.3.2010. The said order reads as follows:
“Civil
appeal No. 2858-2859 of 2010 (arising from SLP (C) No. 5068-5069 of
2009)Leave
Granted.
Heard
learned Counsel for the parties.
These
appeals have been filed against the impugned judgment of the High
Court of Madras dated 29.9.2006 and subsequent order dated
25.8.2008 passed in the Review Application.
The
Division Bench of the High Court has reversed the judgment of the
learned Single Judge only on the ground of delay who directed
compassionate appointment to the appellant. The appellant was a
minor at the time of the death of his father and since the mother
of the appellant applied within time, we are of the opinion that
the appellant, after becoming major should have been granted
compassionate appointment.
Accordingly,
we allow these appeals, set aside impugned judgment of the Division
Bench and restore the judgment of the learned Single Judge. No
costs.”
12. Here
in this case, the petitioner’s mother applied for compassionate
appointment within one year and she was not given appointment due to
want of minimum qualification of eight standard and the petitioner
being only other legal heir, pursuing the matter and agitating her
right for all these years. In the light of the present financial
status of the petitioner, the decision in Syed Khadim Hussain Vs.
State of Bihar (Supra) applies to the facts of this case.”
6.0 In
light of the aforesaid observations made by Division Bench of this
Court as well as considering the decision of the Madras High Court,
it is directed to respondents to reconsider the application made by
petitioner for compassionate appointment and also to reconsider
decision dated 19th January, 2006 on the basis of policy
which was prevailing at the relevant time when the father of the
petitioner died. Let this aspect may be reexamined and also
considered that at the time of death of the father of petitioner, the
petitioner being minor naturally could not able to make any
application for compassionate appointment. The relevant aspect is the
moment he has become major, he immediately made an application and
that aspect has not been considered. Let that aspect also may be
reconsidered as per the policy which was prevailing at the relevant
point of time when the father of the petitioner died within a period
of three months from the date of receiving the copy of the present
order and communicate the decision immediately to the petitioner.
7.0 In
view of the aforesaid observations and directions, the petition is
disposed of by this Court without expressing any opinion on merits.
However, in case if ultimate decision is adverse to the petitioner,
it is open for the petitioner to challenge the same before the
appropriate forum in accordance with law. Direct Service is
permitted.
[H.
K. Rathod, J.]
Amit
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