Research › Search › Judgment

Gujarat High Court · body

2009 DIGILAW 12 (GUJ)

Sandip Arunkumar Joshi v. State of Gujarat

2009-01-15

K.S.JHAVERI

body2009
JUDGMENT : K.S. Jhaveri, J. By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed to quash and set aside the communications dated 17.06.2005 and 23.08.2006 issued by the respondents, whereby the petitioner was refused to grant appointment on compassionate grounds. 2. The father of the petitioner was working as a second grade Police constable in C.T.B Division in the office of respondent no. 4 and died in harness on 27th January, 2003 due to cancer. On 19.02.2003, the petitioner made an application requesting to appoint him on compassionate grounds. However, vide communication dated 17.06.2005, the respondent informed the petitioner that his case for appointment on compassionate grounds has been rejected on the ground that he does not possess the minimum age required on the date of the application. The petitioner, after becoming major made another application on 14.07.2005. The respondent vide letter dated 23.09.2006 informed the petitioner that his application for compassionate appointment is rejected on the basis of the Government Policy dated 10th March, 2000. Being aggrieved by the aforesaid action of the respondents, the petitioner has approached this Court by way of this petition. 3. The learned counsel for the petitioner has contended that the respondents have erroneously rejected the application of the petitioner on the ground that the petitioner was not of minimum age as on the date of the application. He has further contended that on the date of forwarding the application, the petitioner has attained majority and, therefore, the respondent ought not to have rejected the application of the petitioner. Hence, the impugned order passed by the respondent deserves to be quashed and set aside. 3.1. As against that Mr. J.K. Shah, learned AGP, has contended that the application of the petitioner has been rejected mainly on the ground that the petitioner has not applied for such appointment within the time limit as prescribed by the Government Resolution dated 10th March, 2000. He has further contended that as per clause 8(b) of the said Resolution, after the death of an employee, if there is no family member who are major, then the Department shall not wait for the minor to attain majority. 3.2. He has further contended that as per clause 8(b) of the said Resolution, after the death of an employee, if there is no family member who are major, then the Department shall not wait for the minor to attain majority. 3.2. He has further submitted that in the present case, the widow of the deceased could have applied for compassionate appointment at the relevant time, but she had chosen not to apply and instead the petitioner made an application, which was rejected on the ground of age criteria. In support of his contention, he has placed reliance on the decision of the Apex Court in the case of Life Insurance Corporation of India v. Asha Ramchandra Ambekar (Mrs) & Anr. reported in (1994) 2 SCC 718 , wherein the Court has held that the High Court should not have directed the appointment on compassionate grounds and it should have merely directed consideration of the claim of the respondent. No mandamus should be issued directing to do a thing forbidden by law. He has also placed reliance on the unreported decision of this Court in the case of Manubhai Gothabhai Desai v. State of Gujarat & Ors., reported in 1998 (1) GLH (U.J.) 23, wherein the Court has observed that under Article 226 of the Constitution of India, the Court cannot direct the State to give appointment on compassionate grounds, but can only give a direction to consider the cases expeditiously, in light of the policy evolved by the Circulars. 3.3. He has also relied upon the decision of the Apex Court rendered in the case of Doiwala Sugar Co. Ltd. v. Manjeet Singh Negi & Anr. reported in (2006) 9 SCC 381 , wherein the Court has held as under :- "Apart from the aforesaid infirmities, the High Court was also wrong in directing appointment of the respondents without remanding the matter to the appellant for the purpose of consideration of the fitness of the respondents to and the appeal is allowed without any order as to costs." 3.4. Lastly Mr. Shah, learned AGP has relied upon the decision of the Apex Court in the case of General Manager, State Bank of India & Ors. Lastly Mr. Shah, learned AGP has relied upon the decision of the Apex Court in the case of General Manager, State Bank of India & Ors. v. Anju Jain, reported in (2008) 8 SCC 475 , wherein the Court has held that as per settled law, a writ of mandamus can be issued directing the authority to consider the case of the petitioner for an appointment or promotion as the case may be but no direction can be given to appoint or promote a person. 4. Heard learned counsel for the parties. The main contention raised by the petitioner is that the petitioner had preferred the application for appointment on compassionate grounds within the time limit as prescribed in the Government Resolution, which was in force at the relevant point of time. However, the respondent has not considered the said aspect. On perusal of the reply filed by the respondent, the reasons which have been shown in the affidavit-in-reply is a clear after-thought. 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 an application for compassionate appointment on the basis of the policy prevailing at the time of the application. In the present case, evidently the application of the petitioner has not been considered on the basis of the policy prevailing at the relevant point of time. Hence, the authority is required to reconsider the application of the petitioner. 5. For the reasons stated herein above, the petition is allowed. The impugned communications dated 17.06.2005 and 23.08.2006 are quashed and set aside. The respondent-authority is directed to consider the case of the petitioner on the basis of the policy that was prevailing on the date of the application and pass appropriate order, within a period of three months from the date of receipt of writ of this order, accordance with law. 6. With the above directions, the petition stands disposed of. Rule is made absolute. No order as to costs. Direct Service is permitted. Petition disposed.