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SCA/5947/2008 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 5947 of 2008
=========================================================
SHARDABEN
NARSINHBHAI PANCHAL - Petitioner(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=========================================================
Appearance
:
MR
HASIT DILIP DAVE for
Petitioner(s) : 1,
MS ASMITA PATEL, ASST. GOVERNMENT PLEADER for
Respondent(s) : 1,
None for Respondent(s) :
2,
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CORAM
:
HONOURABLE
MR.JUSTICE R.H.SHUKLA
Date
: 13/08/2008
ORAL
ORDER
Present
petition has been filed by the petitioner seeking appointment on
compassionate ground and prayer in the present petition is that the
respondent may be directed to immediately consider positively
petitioner’s placement and complete formalities in time bound manner.
Facts
of the case briefly stated are that the husband of petitioner,
Narsibhai Khodabhai, who was teacher at primary school, – respondent
No.2, who died on 14-12-92 and on demise of the husband, the
petitioner made an application for compassionate appointment which
was turned down, and therefore, on earlier occasion also petitioner
had filed Special Civil Application No.3425 of 2007 for the same
prayer and the High Court while passing order in Special Civil
Application No.3425 of 2007 on 17-2-2008 directed the respondent to
consider the case of the petitioner as per the policy for
compassionate
appointment
which was in force at that time and not on the basis of the
subsequent policy, i.e. Govt. Notification dated 16-3-2005. On the
basis of the order, the petitioner again approached the authority and
impugned order dtd. 25-9-2007 Annexure-D came to be passed which is
challenged in the present petition.
Learned
advocate Mr.S. D. Dave submitted that while passing impugned order
dtd. 25-9-2007, authorities have not considered in proper perspective
the directions of High Court and they have failed to appreciate that
the direction was to consider the case of the petitioner for
compassionate appointment as per the policy prevailing then and not
subsequent policy. Learned advocate has also submitted that as
observed in earlier order relying upon the judgment of Hon’ble Apex
Court in the case of Abhishek Kumar v. State of Hariyana & Ors.,
2006 (13)SCALE 658, directions have been given which are not
considered, and therefore, present petition is filed for the relief.
The
present petition has been filed relying upon the observations made in
the order of High Court in Special Civil Application No.3425 of 2007
dated 7-2-2007 which refers to the earlier judgment of Hon’ble Apex
Court in the case of Abhishek Kumar vs. State of Hariyana &
Ors., (supra). However, while passing order in Special Civil
Application No.3425 of 2007, High Court had directed to consider the
case of the petitioner for compassionate appointment, which has been
considered as reflected in the impugned order dated 25-9-2007, the
petitioner widow is not
fulfilling
the criteria of education qualification for Class-IV employee and,
therefore, her request has not been acceded. There is reference to
the judgment of High Court of Gujarat in Special Civil Application
No.9316 of 2005 in which it is observed that even while making
compassionate appointment, qualification prescribed under the
Recruitment Rules, is required to be possessed. Reference is also
made of Special Civil Application No.3425 of 2007 on the basis of
which representation is made. Observations of Hon’ble Apex Court
made in the judgment reported in 2006(5) SCC 766, are required to be
considered. It has been specifically observed that ?Sthe claim for
compassionate appointment is required to be considered in light of
the policy which is evolved as social measure to give benefit, and
therefore, it should be construed and understood accordingly and such
policy has to be applied and for making claim under the policy, the
required criteria or norm has to be fulfilled??. It is further
observed that ?Ssuch appointment is an exception to general rule
that appointment to public office should be made on the basis of
competitive merits. Once it is proved that in spite of the death of
the breadwinner, the family survived and substantial period is over,
there is no need to make appointment on compassionate ground at the
cost of the interest of several others ignoring the mandate of Art.14
of the Constitution. This general rule should not be departed from
except where compelling circumstances demand??.
In
light of the observations, claim for compassionate appointment cannot
be made after many years and that too when required criteria or norms
are not fulfilled. Hon’ble Apex Court has clearly observed that
policy of making compassionate appointment is a part of social
justice and therefore, while considering such application for
compassionate appointment, the criteria prescribes by such policy or
scheme, are required to be fulfilled and it is to be construed
strictly. If the criteria is not fulfilled like qualification in the
present case as prescribed in the Recruitment Rules, one cannot claim
appointment on compassionate ground. The direction given by High
Court in Special Civil Application No.3425 of 2007 was that the
application of the petitioner was to be considered as per the policy
the then existing. Even assuming that the case of the petitioner was
required to be considered under that policy, the fact remains that
the case has to be considered in light of the policy existing the
then. Moreover, the policy existing at the relevant point of time
would also not permit such an appointment. Further the petitioner
has not pointed out from earlier policy as to how or what was the
criteria required as per the previous policy and in any case, as
observed by Hon’ble Apex Court in the judgment, idea of providing
compassionate appointment is to overcome the financial crisis of the
destitute family to cope up with the situation at the relevant time.
In the present petition, fifteen years have passed and there is no
substance in the present
petition
and, therefore, present petition deserves to be dismissed in limine
and accordingly dismissed with no order as to costs.
(Rajesh
H. Shukla, J.)
vijay*
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