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LPA/68/2009 10/ 10 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 68 of 2009
In
SPECIAL
CIVIL APPLICATION No. 8074 of 2007
For
Approval and Signature:
HONOURABLE
MR.JUSTICE V. M. SAHAI
HONOURABLE
MR.JUSTICE G.B.SHAH
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
STATE
OF GUJARAT & 2 - Appellant(s)
Versus
HITESH
J. GOSWAMI - Respondent(s)
=========================================================
Appearance
:
GOVERNMENT
PLEADER for
Appellant(s) : 1 - 3.
MR AS SUPEHIA for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE V. M. SAHAI
and
HONOURABLE
MR.JUSTICE G.B.SHAH
Date
: 24/03/2011
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE V. M. SAHAI)
1. Heard
Mr.N.J.Shah, learned Assistant Government Pleader for the appellants
and Mr.A.S.Supehia, learned counsel appearing for the respondent.
2. The
brief facts of the case are that the father of the respondent was
working as a Second Grade Head Constable in State Reserve Police
Force, Group 9, Vadodara. He died in harness on 17.7.2001. The
respondent made an application on 21.12.2002 for compassionate
appointment. The said application was rejected by the respondents on
28.7.2005 and this fact was informed to the respondent-petitioner on
28.7.2005 on the ground that the respondent was not possessing SSC
qualification.
3. In
para 7 of the further affidavit filed on behalf of the respondent, it
has been mentioned that the application of the appellant dated
29.9.2001 was not considered as it was signed by the mother of the
appellant. When the beneficient Scheme for compassionate appointment
was framed by the State Government on 10.3.2000, the intent was that
it would assist the family of the deceased to cope with unexpected
critical financial situation by giving compassionate appointment to
one member of the dependent family of the employee who died during
service leaving the family in helpless condition without any means of
livelihood. No income limit was applicable for securing compassionate
appointment under the Scheme. The scheme was applicable only to the
member of dependent family of Class-III and Class-IV employees who
had been appointed on regular basis and who had put in at least five
years of service and died during service. The scheme was also
applicable to the employees who were employed in the workcharged
establishment.
4.
The scheme provided the eligibility criteria wherein it was provided
that for the post of Class-IV, candidate who possesses educational
qualification of Std.IV to IX were eligible for compassionate
appointment. Para 7(A) of the scheme provided that compassionate
appointment shall be made on regular vacancies available on permanent
basis. Para 8(A) of the scheme provided that, an application for
compassionate appointment shall be made immediately after the death
of the employee concerned and the application was required to be made
within three months from the date of the death of the employee. Any
application made after the period of three months was not to be
considered in any circumstances. Since time limit was fixed by the
scheme, the scheme took care that the family of the deceased which is
in penury should not suffer for indefinite period and that is why in
the scheme, the procedure was mentioned as to how compassionate
appointment would be provided. It is relevant to extract the
procedure provided in para 11(A) to 11(N) of the Scheme dated
10.3.2000, which reads as under:
“11(A) For
considering the case of compassionate appointment, full
responsibility is entrusted to the Additional Chief Secretary/
Principal Secretary/ Secretary in the case of the respective
department of Sachivalaya and respective Heads of departments in case
of other employee that as soon as the employee concerned dies, the
application form prescribed for securing compassionate appointment as
per Appendix-2 appended herewith is sent by the department of
Sachivalaya/department/office in which the deceased employee had been
serving at the time of death, to the responsible member of the
dependent family and get completely complied and filled with
necessary declaration/ under-taking latest by one month.
(B) For the respective
department of Sachivalaya/ department/ office, the knowledge-able
responsible officer/employee should be deputed immediately to take
personal visit of the dependent family for this or the applicant
member of the family eligible for compassionate appointment along
with the responsible member of the dependent family should be called
immediately in person and elucidation and guidance about this scheme
of giving compassionate appointments should be given and the
requirements and formalities for that should be shown and advice
should be given for its compliance, the application of one member of
the eligible dependent family along with full compliance for securing
compassionate appointment as per this scheme shall invariably be
obtained within the above time limit by the respective department of
Sachivalaya in case of Sachivalaya and the Head of the department in
case of other offices.
(C) The application from
one eligible member of the dependent family obtained for
compassionate appointment according to this schemes should be
scrutinized on priority basis by the respective department in the
case of Sachivalaya and by head of the department in the case of
other offices and missing things should be got complied promptly, and
the application with full compliance and necessary documents, shall
be sent directly to the Gujarat Subordinate Services Selection Board
latest by two months from the date of death of the employee concerned
by the respective department of Sachivalaya and the Head of the
Department along with their opinions. This time limit shall be
strictly complied with.
(D) On receipt of the
application by the Gujarat Subordinate Services Selection Board for
compassionate appointment as above, the Board shall
scrutinize/consider the same in the light of this revised scheme of
giving compassionate appointment as well the orders/instructions
issued by the General Administration Department of the Government on
this subject. For this, one meeting of all members of the Board shall
be called in second week of every month for scrutiny/consideration of
applications received by the Board during the preceding month. The
candidate of compassionate appointment may be called to hear in
person in this meeting of the Board, if found necessary for better
assessment of the facts of the case.
(E) After
scrutiny/consideration of the candidates of the compassionate
appointment in this way by the Board, the Board shall, without delay,
recommend/allot the candidates selected/ found fit for compassionate
appointment, to the department of Sachivalaya/ Department/office in
which suitable vacancy is available for compassionate appointment in
the respective department of Sachivalaya/ department/office, after
following the norms mentioned in above 7(E) and (F).
(F) On
recommendation/allotment of such candidates by the Board, in
pursuance of the existing policy rules of the government, all
procedure of recruitment like securing medical certificate of
physical fitness shall be completed on priority basis, the appointing
authority, the Additional Chief Secretary/ Principal
Secretary/Secretary in the case of the departments of Sachivalaya and
Heads of departments/offices in the case of other offices shall give
them appointments immediately.
(G) The Gujarat
Subordinate Services Selection Board shall do the work of selection,
recommendation and allotment of candidates of compassionate
appointment on the posts of class IV besides class III.
(H) In the cases of
deceased employee of the Panchayat Service, for considering
compassionate appointment the full responsibility is entrusted to the
District Development Officer concerned that as soon as the employee
concerned dies, the application form prescribed for securing
compassionate appointment as per Appendix-2 appended herewith is sent
by the office in which the deceased employee had been serving under
the various Panchayats, to the responsible member of the department
family and get completely complied and filled with necessary
declaration/ undertaking.
(I) The respective
District Development Officer/ Taluka Development Officer should
depute any knowledgeable responsible officer/employee immediately to
take personal visit of the dependent family for this or should call
in person the applicant member of the family eligible for
compassionate appointment along with the responsible member of the
dependent family, give elucidation and guidance about this scheme of
giving compassionate appointment and show the requirements and
formalities for that and give advice in person for its compliance and
the District Development Officer concerned shall invariably obtain in
any circumstances within above time-limit, the application of one
member of the eligible dependent family along with full compliance
for securing compassionate appointment as per this scheme.
(J) The
District Development Officer concerned shall scrutinize on top
priority basis, the application obtained as above from one member of
the dependent family for compassionate appointment according to this
scheme, get missing things complied immediately, and shall send the
application along with full compliance and necessary documents with
his necessary opinion to the Panchayats, Rural Housing and Rural
Development Department of the government latest by two months from
the date of the death of the employee concerned. This time limit
shall be strictly complied with.
(K) In
order to scrutinize/consider the application of compassionate
appointment on posts under the Panchayat services, the Additional
Chief Secretary/ Principal Secretary/Secretary of Panchayats, Rural
Housing Department and Rural Development Department of the
Government shall constitute one standing committee consisting of one
chairman and two members from the Additional Secretary/Joint
Secretary/Deputy Secretary, thus three ex-officio members.
(L) On
receipt of the application by the Panchayats, Rural Housing and
Rural Development Department of the government from one eligible
member of the dependent family of the deceased employee under
Panchayat Service as above, the standing committee of that
department constituted as above shall scrutinize/consider the same
in the light of this revised scheme of giving compassionate
appointments as well as the orders/instructions issued by the
General Administration Department of the Government on this subject.
For this, one meeting of all members of the committee shall be
called in second week of every month for scrutiny/ consideration of
applications received by the department during the preceding month.
The candidate of the compassionate appointment may be called to hear
in person in this meeting of the committee, if found necessary for
better assessment of the facts of the case.
(M) After
scrutiny/consideration of the candidates of the compassionate
appoint-ments in this way, the committee shall submit its
recommendation to the Additional Chief Secretary/Principal
Secretary/ Secretary of the department for approval. After the
approval of the Additional Chief Secretary/ Principal Secretary/
Secretary is secured on the recommendation of the committee, the
department shall, in pursuance of the norms mentioned in above 7(G)
of the candidates selected/found fit for compassionate appointment,
make allotment without delay to the office of the respective
District Development Officer under whose control the vacancy
suitable for compassionate appointment is available.
(N) On
allotment of such candidates by the Panchayats, Rural Housing and
Rural Development Department, in pursuance of the existing policy
rules, all procedure of recruitment like securing medical
certificate of physical fitness shall be completed on priority basis
and the District Development Officer concerned shall give them
appointment immediately.”
5. From
the bare perusal of the procedure, it is clear that it was the
responsibility and duty of the Officer or Head of Department as soon
as the employee died in harness to immediately depute a person from
his office to go and meet the dependent family. And depute a
responsible officer/employee to make a personal visit to the
deceased’s family and get the application form for compassionate
appointment filled on the prescribed form by guiding the depending
family as to how the application form is to be filled. A further duty
had been cast upon the Officer concerned to get the formalities
completed within a period of two months from the date of death of the
employee and send it to the concerned authority empowered to grant
compassionate appointment. The scheme further mandates that the time
limit of two months had to be strictly complied.
6. Paragraph
11(E) read with paragraph 7(E) and (F) further secures the interest
of the dependent of the deceased when it in unequivocal terms lays
down that if there was no vacancy in the office or department where
the deceased was serving then compassionate appointment be provided
on available vacancy for compassionate appointment falling in any
department of Sachivalaya/ department/office under the State
Government.
7. How
the laudable object of a beneficient scheme framed by the State
Government is defeated by the inaction and lacklusture approach of
the Officers/ Employees of the State Government is demonstrated by
the facts of this case.
8. Had
the appellants complied with para 11 of the Government Resolution
dated 10.3.2000, the respondent would have got the compassionate
appointment, but even till date, the appellants have not complied
with para 11 of the Scheme and they have rejected the application of
the respondent on the ground that the Rules which earlier provided
qualification of Std.IX had been amended and SSC pass qualification
has now been incorporated with effect from 16.3.2005. This Court in
Letters Patent Appeal No.2785 of 2010 relying on the decision of the
Apex Court had directed the authorities to consider the claim of the
applicant for giving compassionate appointment as the application was
made prior to the amended quali-fication SSC pass which came into
force on 16.3.2005 and to treat the application of the applicant
dated 21.12.2002 to be well within time. The delay in moving the
application for compassionate appointment was due to the inaction and
fault of the appellants in complying with para 11 of the Scheme for
compassionate appointment, the respondent was left with no option but
to make an application on 21.12.2002. The respondent’s application
was within time and the appellants were required to consider afresh
the application of the respondent in the light of observations made
in this decision and decision dated 9.3.2011 in Letters Patent
Appeal No. 2785 of 2010 (State of Gujarat and ors. vs. Budhabhai
A. Chavda) decided on 9.3.2010.
9. For
the reasons given in Letters Patent Appeal No.2785 of 2010 (State of
Gujarat and ors. vs. Budhabhai A.Chavda) decided on 9.3.2011, this
appeal is allowed on the same terms and conditions as provided in the
aforesaid decision dated 9.3.2011 and the appellants are directed to
consider the claim of the respondent for compassionate appointment as
per the qualification which was Std. IX pass at the time when the
application made for compassionate appoint-ment made by the
respondent, within a period of two months.
10. With
the aforesaid directions, this appeal stands finally disposed of.
(V.M.Sahai,
J.)
Sreeram. (G.B.Shah,
J.)
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