ORDER
H.K. Rathod, J.
1. Heard the learned advocate, Mr. H.H. Joshi, appearing on behalf of petitioner and learned advocate, Mr. Premal Joshi, appearing on behalf of respondents.
2. Rule. Learned advocate, Mr. Premal Joshi, waives the service of rule on behalf of respondents.
3. With the consent of learned advocates appearing for the respective parties, matter has been taken up for final hearing today.
4. The brief facts of the present petition are that petitioner is son of late Shri Govindbhai Kripaldas Meghani, who was serving in School No. 39, Meghaji Pethraj Shala (Primary School) run and managed by respondent No. 1 as Acharya since 1970. His date of birth was 1.11.1945. The father of the petitioner was expired during the course of employment on 8.8.2002. Thereafter, immediately, the petitioner had filed an application on 27.8.2002 with a request to give compassionate appointment to the petitioner. Thereafter, various representations and reminders were made to the respondents. Ultimately, in response to the last reminder dated 6.7.2005, petitioner was offered such appointment by respondent No. 1 by an order dated 7/8.7.2005. However, by an order dated 13.7.2005, said appointment has been cancelled by the respondent, therefore, again, petitioner has made representation against the cancellation of the appointment order, by an order dated 13.7.2005. The reply is given by respondent in respect to the representation of the petitioner on 26.4.2006 informing to the petitioner that he has not been given appointment on compassionate ground as it has not been approved by the Corporation and that is how the present petition is filed.
5. On behalf of respondents, one Shri Hitendra D. Dave, Administrative Officer, has filed reply, raising the objection in Para.5 that mother of the petitioner is alive and she has not given ‘no objection’ for giving appointment to her son on compassionate ground. According to respondent, mother of the petitioner is residing at Ahmedabad alone and she is living independently. It is further averred in that reply by respondents that petitioner is not entitled for appointment on compassionate ground because the petitioner has tried to mislead the authority by stating that he is only 11th passed. It has also come to the notice of the Corporation that he is highly qualified and educated person. According to respondents, petitioner is running the typing class and he is earning and maintaining the family and, therefore, petitioner is not entitled for compassionate appointment as petitioner is not unemployed. It is further averred that the object of giving compassionate appointment is to give appointment to absolutely helpless and destitute dependent to maintain and survive. It is further averred that at present, there is no vacancy in the set up of Class-III with the Prathmik Shikshan Samiti and all sanctioned set up with the Prathmik Shikshan Samiti have been filled up, therefore, petitioner is not entitled. The mother of the petitioner has received Rs. 1,56,112/- towards GPF and Rs. 81,475/- towards leave encashment and family pension comes each month Rs. 6517/-, however, appointment was given to the petitioner purely on ad-hoc basis with the condition that services will be terminated without notice. Therefore, termination is legal and valid which does not require any interference by this Court as there is no violation of fundamental rights of the petitioner.
6. I have considered the submissions made by both the learned advocates. It is necessary to note that how the corporate body / public body is functioning while dealing with the case of compassionate appointment and how far the officers are right in filing affidavit-in-reply before this Court. The contention raised by respondents that widow is getting family pension and also received retirement benefits which may be a ground to deny compassionate appointment to the petitioner. The Government policy dated 10.3.2000 and 7.9.2002 made it clear that income criteria cannot be taken into account while considering the case for compassionate appointment. That aspect has been made clear in the policy dated 10.3.2000 and 7.9.2002. However, averments made in the reply by the respondents about the income of petitioner’s family.
7. The appointment order was issued in favour of petitioner being a dependent of deceased employee granting compassionate appointment in fix salary as a part time peon (hangami appointment) which was in terms mentioned by the respondents. After issuing this order dated 7/8.6.2005, immediately his service was terminated by order dated 13.7.2005 without any reason or justification by the respondent. The petitioner was appointed in July,2005 on compassionate ground. The request of petitioner was rejected on 26.4.2006. In termination order, no reason has been given by respondents that why the service of petitioner was terminated. One Shri Kalpesh Amrutlal Falia was also appointed along with petitioner on the same terms and conditions w.e.f. 11.7.2005. Shri Falia was not appointed on compassionate ground, however, he is continued in service with the respondents which facts have not been denied by the respondents. If the averments made in the reply by the respondents is correct, then, continuation of Shri Falia is contrary to the averments made by respondents. The respondents have accepted the policy of State Government dated 10.3.2000 and 7.9.2002. The decision which has been taken by respondents terminating the service of petitioner is contrary to the policy which has been adopted by the respondents. The service of the petitioner was terminated within one week after issuing the order in favour of petitioner. The order of termination is dated 13.7.2005 but, no reason has been given or assigned for terminating the service of the petitioner. The request of petitioner was rejected subsequently on 26.4.2006 as Corporation has not sanctioned the appointment of petitioner. Therefore, question is that on what basis the petitioner was appointed by order dated 7/8.7.2005. In the said order, it was made clear that being a dependent of Govindbhai Kripaldas Meghani, the petitioner was appointed as part time peon w.e.f. 11.7.2005, therefore, according to my opinion, the order of termination dated 13.7.2005 without assigning any reasons by the respondents for terminating the service of petitioner and which contrary to the policy of State Government which has been adopted by respondents dated 10.3.2000 and 7.9.2002. It is necessary to note that father of the petitioner was expired on 8.8.2002. Immediately on 27.8.2002, an application was submitted by the petitioner for compassionate appointment. The conduct of the respondents is not clear considering the averments made in the reply, raising the contention in the reply as if that termination of petitioner is legal and valid, is an afterthought. Once the dependent of deceased employee is appointed on compassionate ground, then, he should not have to be appointed temporarily or ad-hoc. That view has been taken by Allahabad High Court (Division Bench) in case off Sanjay Kumar v. Deputy Director General (NCC) Directorate, Lucknow and Ors. 2002 III CLR 472. Relevant observations made by the Division Bench of the Allahabad High Court is quoted as under:
1. This Special Appeal is directed against judgment of learned Single Judge dated 11.2.2002 allowing the writ petition, where the learned single Judge held that appointment of writ petitioner having been made on compassionate ground, the same cannot be treated to be a temporary appointment and as such the order dated 5.12.1996 terminating his services under U.P. Tempoarary Government Servants (Termination of Service) Rules of 1975 is set aside.
2. It is not in dispute that before passing the termination order, no show cause notice was served on the petitioner nor the petitioner was given any opportunity to explain his misconduct, if any, irregularity and unauthorized absence. It is true that if the appointment is confirmed, there cannot be simplicitor termination. On the allegation against the petitioner which has been noted by learned single Judge in his judgment, it was open for the respondents to have held an enquiry against the petitioner. The learned single Judge for his decision has placed reliance on a Division Bench judgment of this Court in Ravi Karan Singh v. State of U.P. and Ors. 1999 (35) ALR 754. The Division Bench in the aforesaid case has held that an appointment under the Dying-in-Harness Rules has to be treated as permanent appointment otherwise if such appointment is treated to be a temporary appointment, then it will be followed that soon after appointment, the services can be terminated and this will nullify the very purpose of Dying-in-Harness Rules.
3. We are of the opinion that the judgment of learned single Judge which is based on Division Bench decision in Ravi Karan Singh’s case needs no interference in this appeal. However, it will be open to the appellants, if so advised to proceed in accordance with law. The petitioner respondent No. 1 shall be reinstated in service forthwith and shall be entitled to pay including all consequential benefits as already directed by the learned single Judge.
4. Accordingly, we are of the view that there is no merit in this special appeal. Special appeal fails and is accordingly dismissed.
Appeal dismissed.
8. In view of the aforesaid decision of the Division Bench of the Allahabad High Court and considering the facts narrated in the petition as well as reply, according to my opinion, petitioner is entitled for the compassionate appointment as a dependent of the deceased employee as per policy dated 10.3.2000 and 7.9.2002 adopted by the respondents but, respondents have appointed to the petitioner contrary to the policy giving temporary / ad-hoc appointment which has been terminated immediately within one week, without giving any opportunity to the petitioner, therefore, order of termination dated 13.7.2005 is required to be set aside. Further, on the ground that another person, who was appointed along with petitioner, Shri Kalpeshbhai Amrtutlal Falia, on the same terms and conditions w.e.f. 11.7.2005, as a part time peon, whose service has been remained continued and at present, he is working with the respondents, therefore, order of termination is required to be set aside which is hit by Article 14 of the Constitution of India. It is necessary to note that appointment order issued in favour of Shri Falia was not on compassionate ground but, he still remained in continuous service with the respondents though service of the petitioner was terminated within a week from date of appointment, therefore, it is a clear case of some victimization and having ulterior motive against the petitioner by concerned officer of the respondents, therefore, order of termination dated 13.7.2005 is required to be set aside.
9. In result, the order of termination dated 13.7.2005 is hereby quashed and set aside with a direction to respondents to appoint regularly to the petitioner on compassionate ground within a period of one month from the date of receiving the copy of this order. The contention of the respondents that the petitioner is highly qualified cannot be considered to be a ground to deny the compassionate appointment to the petitioner. See : Union of India and Ors. v. Bikash Kuanar 2006 AIR SCW 5436. Accordingly, rule is made absolute to that extent.
Direct service is permitted