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2002 DIGILAW 757 (GUJ)

URMILABEN DAHYABHAI GOHIL v. STATE

2002-09-30

Y.B.BHATT

body2002
Y. B. BHATT, J. ( 1 ) HEARD the learned Counsel for the respective parties. ( 2 ) RULE returnable today. Ms. Hansa Punani, learned A. G. P. , appears and waives service of rule for respondent No. 1 and Ms. Sejal K. Mandavia appears and waives service of rule for respondent Nos. 2 and 3. ( 3 ) ON a joint request the petition is taken up for final hearing today. ( 4 ) THERE is no controversy that one Dahyabhai Karsanbhai Gohil was working as a Compounder with the Health Department of the District Panchayat, at the primary Health Centre at Haldar, under the District Panchayat, viz. , respondent no. 2 herein. The petitioner is the daughter of the said Dahyabhai Gohil. There is also no dispute that the father of the petitioner was found missing since 27th february, 1974, after he was transferred to Haldar. ( 5 ) THE petitioner and her mother being the only other family members of the said missing Dahyabhai Gohil made all possible attempts to locate and trace out the said missing Dahyabhai Gohil. In spite of strong efforts and lapse of a long period, they were unsuccessful. Ultimately, the petitioner and her mother jointly filed Misc. Application No. 13 of 1993 in the Court of Second Joint civil Judge (Senior Division), Bharuch for a Succession Certificate in respect of the General Provident Fund, etc. of the said Dahyabhai Gohil. The said court, after considering all the facts on record, specifically recorded a finding that the said Dahyabhai Gohil has been missing for more than seven years, and that in spite of the necessary efforts as regards which the Court is satisfied, the said Dahyabhai Gohil has not been traced out, nor has he been heard of by person who would normally have reason to hear of him, and after appreciating all the relevant evidentiary material on record, came to the conclusion that the said Dahyabhai Gohil is technically and in law dead. It was on these findings that the aforesaid Court granted the Succession Certificate pertaining to the monetary benefits specifically as regards G. P. F. , pension, gratuity and other benefits related to his service. 5. 1 It is pertinent to note that the said Succession Certificate was granted by the competent Court by judgment and order dated 26th November, 1993. It was on these findings that the aforesaid Court granted the Succession Certificate pertaining to the monetary benefits specifically as regards G. P. F. , pension, gratuity and other benefits related to his service. 5. 1 It is pertinent to note that the said Succession Certificate was granted by the competent Court by judgment and order dated 26th November, 1993. ( 6 ) HOWEVER, even before the grant of Succession Certificate, the petitioner had been requesting the District Panchayat to grant her compassionate appointment in place of her father Dahyabhai Gohil. Her first application for such compassionate appointment is dated 16th September, 1991, which is obviously prior to the grant of Succession Certificate by the aforesaid judgment and order. In fact this application is also prior to the filing of the application for Succession certificate. Thereafter, after the Succession Certificate was granted by the judgment and order dated 26th November, 1993, the petitioner made another application on 23rd December 1993, which was within 90 days of the judgment and order referred to hereinabove, which declared the aforesaid Dahyabhai Gohil as legally dead. This application dated 23rd December, 1993 was the second application. The petitioner followed through by a third application dated 1st november, 1995. ( 7 ) IN spite of this history, the petitioner has not been granted compassionate appointment. ( 8 ) THE Court is informed that the Government in the Panchayat Department had by letter dated 17th December, 1997 rejected the said application forwarded by the District Panchayat, on the ground that the said application is filed beyond the prescribed period. A similar view has also been expressed in a subsequent letter also issued by the State Government in the Panchayat Department dated 29th March, 2001. The second letter does not give any reasons for rejecting the application for compassionate appointment, but only states that on a reconsideration of the entire matter, the earlier decision is confirmed. Copies of these two letters have been shown to the Court, and placed on record. ( 9 ) FROM the above facts which are not disputed on record, it obviously follows that the decision of the Government in not granting the petitioner compassionate appointment is based only on one ground, that the said application has been filed beyond the prescribed period. ( 9 ) FROM the above facts which are not disputed on record, it obviously follows that the decision of the Government in not granting the petitioner compassionate appointment is based only on one ground, that the said application has been filed beyond the prescribed period. ( 10 ) THE Court is informed by learned Counsel for the State as also by learned Counsel for the Panchayat that the prescribed period in the context of the policy of compassionate appointment is five years. ( 11 ) IT is obvious that the period of five years, as considered applicable by the State Government, while rejecting the petitioners application, is the period commencing from the date when the said Dahyabhai Gohil went missing on his transfer. The Government in taking this decision has presumed that the said dahyabhai Gohil died on the same day as he went missing, and that therefore, the period of five years should be computed from the day when he went missing. In taking this view, the State Government was clearly in error inasmuch as the law does not and in fact cannot presume that a person is dead on the day when he goes missing. The competent Court examined all the facts relating to the said Dahyabhai Gohil going missing on his transfer, and all relevant and pertinent facts led the Court to come to a conclusion that on the date when the application for Succession Certificate was made, the said Dahyabhai Gohil was missing beyond the necessary period of seven years, and could legally be presumed dead. It is this judgment which legally declares the said Dahyabhai gohil to be dead. It also requires to be noted here that in the aforesaid application for Succession Certificate, the District Panchayat was also a party (opponent no. 3) as also the Medical Officer, Primary Health Centre, Haldar (opponent no. 1) and District Health Officer, District Panchayat, Bharuch (opponent No. 2 ). Thus, the District Panchayat as also the immediate employer of the said dahyabhai Gohil were parties to the proceedings, and can therefore, be imputed with the factual findings recorded by the said Court in accepting the petitioners case and granting the Succession Certificate on the basis of the evidentiary material on record. Thus, the District Panchayat as also the immediate employer of the said dahyabhai Gohil were parties to the proceedings, and can therefore, be imputed with the factual findings recorded by the said Court in accepting the petitioners case and granting the Succession Certificate on the basis of the evidentiary material on record. ( 12 ) IT is, therefore, obvious that when the Government took a view that the petitioners application for compassionate appointment was beyond the prescribed period of five years, it was in error, in fact as also in law, in computing the said period from the date when the aforesaid person went missing. It was also in error in computing five years from the expiry of the period of seven years, from the date when the said Dahyabhai went missing. As aforesaid, the said Dahyabhai Gohil was declared legally dead only by the judgment and order dated 26th November, 1993. Whereas the first application made by the petitioner was prior to the said judgment, the second and third applications were subsequent to the said judgment. In any case, the second and third applications take root from the judgment which declared the said Dahyabhai gohil as legally dead. Obviously, the second and third applications were within the prescribed period of five years from the date of judgment in question. ( 13 ) IT is obvious that if the petitioner had given application for compasionate appointment within seven years of the date when the said Dahyabhai Gohil, went missing, the State Government could have rejected the application on the ground that there is no proof of his death, nor can any presumption be drawn in law as to his death since he has not been missing for seven years. Obviously, as the facts stated above disclose, no proof as to death was available to the applicant at any point of time. It was therefore, not open to the Government to assume that the said Dahyabhai was legally dead on the expiry of seven years from the date when he went missing. The presumption and the consequential declaration that a person is legally dead seven years after he went missing (and subject to other qualifying facts contemplated under the said provision) can only be granted by a competent Court after examining the evidentiary material placed before it. The presumption and the consequential declaration that a person is legally dead seven years after he went missing (and subject to other qualifying facts contemplated under the said provision) can only be granted by a competent Court after examining the evidentiary material placed before it. It is only due to this declaration by competent Court that the person can be said to be legally dead. Thus, in law, the death of such a person operates only from the date of such declaration made by the competent Court. It, is therefore, also not open to the Government to assume the death of its employee on expiry of 7 years of his going missing, and compute 5 years limitation from that date. ( 14 ) A parallel view has been taken by a Full Bench decision of this Court in the case of Sangar Gagu Dhula v. Shah Laxmiben Tejshi, reported in 2001 (1) GLR 697 (FB) : 2001 (2) GLH 643 (FB ). In that case, the Full Bench had occasion to consider the appropriate period of limitation which would apply to a suit for redemption of mortgaged property, where the plaintiff alleged that certain conditions imposed by the mortgage deed amounted to a clog on the equity of redemption. While considering this aspect, the Full Bench held that the term or terms contained in the deed of mortgage which amounted to a clog on the equity of redemption is (are) void. This however did not mean that such terms are void ab initio and/or that such terms are void from the date when they are incorporated into the deed of mortgage. Thus, it could not be said that since such terms are void ab initio, the period of limitation for redemption of the mortgage could be said to start from the date of the mortgage deed itself. The Full Bench found that although such terms which amount to a clog on the equity of redemption are void, they take legal effect, and are said to be void, only when so declared by a competent Court. It was, therefore, found in the said decision that the period of limitation for redemption of mortgaged property would commence to run from the date when such term (s) is declared to be void by a competent Court. It was, therefore, found in the said decision that the period of limitation for redemption of mortgaged property would commence to run from the date when such term (s) is declared to be void by a competent Court. ( 15 ) CLEARLY therefore, the decision of the Government in refusing to make appointment of the petitioner under the scheme of compassionate appointment is a decision which is clearly illegal and requires to be quashed and set aside. It is accordingly so held and directed. ( 16 ) CONSEQUENT to the aforesaid finding, it is hereby directed that the application dated 23rd December, 1993 of the petitioner shall be reconsidered and decided afresh by the concerned respondents in the light of the present judgment and order. It is clarified and directed that the aforesaid application of the petitioner will be considered in the light of the policy governing compassionate appointment as was applicable on 23rd December, 1993. It is further directed that the concerned respondents shall decide the said application as expeditiously as possible and preferably within three months from today. The said decision shall be conveyed to the petitioner immediately on the decision being taken. ( 17 ) ACCORDINGLY, the petition is allowed to the aforesaid extent. Rule is accordingly made partly absolute with no order as to costs. Direct service is permitted. .