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SCA/1347320/2008 1/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 13473 of 2008
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SIRAJAHEMAD
NURMOHMAD GOHIL - Petitioner(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
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Appearance :
MR
SAMIR B GOHIL for Petitioner(s) : 1,
MR HEMANG
PARIKH AGP for Respondent(s) : 1,
None for Respondent(s) :
2,
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CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 13/11/2008
ORAL
ORDER
Rule.
Learned Advocates for the respective parties waive service. 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
17.07.2008 issued by respondent no.1 and the communication dated
25.08.2008 passed by respondent no.2 authority, whereby, the
petitioner was refused to be granted appointment on compassionate
grounds.
2. The
father of the petitioner was serving as a Talati-cum-Mantri under
respondent no.2 and died in harness on 27.09.2004. On 04.10.2004, the
mother of the petitioner made an application requesting to appoint
the petitioner on compassionate grounds.
3. Thereafter,
respondent no.2 sought certain information from the petitioner, which
was supplied by the petitioner. The respondent no.2 vide his
communication dated 29.09.2007 addressed to respondent no.1 expressed
his opinion to appoint the petitioner on compassionate grounds.
4. However,
by order dated 17.07.2008, the respondent no.1 rejected the
application of the petitioner and the said decision was communicated
to the petitioner by respondent no.2 vide his communication dated
25.08.2008. Hence, this petition.
5. Heard
learned counsel for the respective parties and perused the documents
on record. The main contention raised by the petitioner is that the
application for appointment on compassionate grounds was preferred on
04.10.2004 and that it was considered by the respondent authority
on the basis of the policy prevailing subsequent to the said period
and not on the basis of the policy prevailing on the date of the
application.
6. 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.
7. For
the reasons stated herein above, the petition is partly allowed. The
impugned order dated 17.07.2008 issued by respondent no.1 and the
communication dated 25.08.2008 passed by respondent no.2
communication are 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 and 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.
8. 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/*
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