SCA/724620/2008 4/ 4 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 7246 of 2008 ========================================================= RAKESH D. MACHHI - Petitioner(s) Versus STATE OF GUJARAT & 2 - Respondent(s) ========================================================= Appearance : MS PUJA DAVE FOR MR PINAKIN M RAVAL for Petitioner(s) : 1, MR H.H. PARIKH AGP for Respondent(s) : 1, NOTICE SERVED BY DS for Respondent(s) : 1 - 3. ========================================================= CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 16/10/2008 ORAL ORDER
Rule.
Learned Advocate waive service of rule. With the consent of the
parties, the matter is finally heard today.
1. By
way of this petition under Article 226 of the Constitution of India,
the petitioner has prayed to quash and set aside the order dated
07.02.2008 issued by the respondent authority, whereby, the
petitioner was refused to grant appointment on compassionate grounds.
2. The
father of the petitioner was working as an Asst. Executive Engr.,
Irrigation Project at Pavi-Jepur, District Baroda under the
respondent authorities and died in harness on 04.10.1998. On
05.11.1998, the petitioner made an application in the prescribed form
requesting to appoint him on compassionate grounds. Thereafter, the
respondent authority asked for certain details from the
petitioner, which were provided by the petitioner.
3. However,
vide order dated 31.12.2005, the respondent authority rejected
the case of the petitioner on the ground that the petitioner had not
cleared the S.S.C. Examination, which was the minimum qualification
required, for being appointed on compassionate grounds. Subsequently,
the petitioner produced the copy of his passing the S.S.C.
Examination to the respondent no. 3. Thereafter, respondent no. 3
recommended the case of the petitioner to respondent no. 2.
4. However,
as the respondents did not consider the case of the petitioner for a
long time, the petitioner preferred S.C.A. No.6221 of 2007 before
this Court. The said petition came to be disposed of vide order dated
09.03.2007, whereby, a direction was issued to the respondent
authority to reconsider the grievance of the petitioner. Pursuant
thereto, the petitioner again made a representation to the respondent
authority. Thereafter, the respondent authority passed an
order dated 22.06.2007 rejecting the case of the petitioner.
5. Against
the said order, the petitioner preferred S.C.A. No.19898 of 2007
before this Court. The said petition came to be disposed of with a
direction to the respondent authority to reconsider the grievance
of the petitioner as the petitioner had subsequently produced the
certificate of S.S.C.. Pursuant thereto, the petitioner again made a
representation to the respondent authority. However, the said
representation was again rejected by the respondent authority by
passing the impugned order. Being aggrieved by the aforesaid action
of the respondents, the petitioner has approached this Court by way
of this petition.
6. Heard
learned counsel for the respective parties and perused the documents
on record. The main contention raised by the petitioner is that the
petitioner had preferred the application for appointment on
compassionate grounds on 05.11.1998 and that the same was considered
by the respondents on the basis of the policy, which was prevailing
subsequent to the said period and not on the basis of the policy
which was prevailing on the date of the application.
7. In
my opinion, the said contention raised by the petitioner deserves
consideration inasmuch as it is well-settled law that the authority
concerned is required to consider the application for compassionate
appointment on the basis of the policy prevailing at the time of the
application. The said principle has been laid down by the Apex Court
in the case of Abhishek Kumar v. State of Haryana & Ors.
reported in (2006) 12 S.C.C. 44 and also in the case of
S.B.I. v. Jaspal Kaur reported in (2007) 9 S.C.C.
571. Hence, the respondent authority is required to
consider the application of the petitioner on the basis of the policy
which was prevailing at the time when the application for
compassionate appointment was made.
8. For
the reasons stated herein above, the petition is partly allowed. The
impugned order dated 07.02.2008 issued by the respondent
authority is quashed and set aside. The respondent authorities
are directed to consider the application of the petitioner on the
basis of the policy that was prevailing on the date of the
application, will not travel beyond the prevailing policy and will
pass necessary orders thereof in accordance with. It is made clear
that this Court has not entered into the merits of the matter and the
respondent authority shall decide the application of the
petitioner on merits.
9. With
the above observations & direction, the petition stands disposed
of. Rule is made absolute to the above extent with no order as to
costs. Direct service permitted.
[K.
S. JHAVERI, J.]
Pravin/*