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2014 DIGILAW 1164 (GUJ)

Agamsinh Pratapsinh Parmar v. State Of Gujarat

2014-12-18

RAJESH H.SHUKLA

body2014
ORDER : Rajesh H. Shukla, J. The present petition is filed by the petitioner under Articles 14, 16 and 226 of the Constitution of India for the prayers regarding the compassionate appointment to the petitioner with all consequential benefits and/or to decide representation. Heard learned advocate, Shri N.K. Majmudar for the petitioner and learned AGP Shri Rohan Yagnik for the respondents. 2. The facts of the case briefly stated are that the father of the petitioner was a permanent employee of the District Panchayat, Kheda, who expired on 18.10.2000. The petitioner made request for the appointment on compassionate and the appointment came to be made as per the order passed by the respondent No. 1 dated 25.07.2004 at Annexure A. However, the grievance is made that the petitioner has been appointed in a fixed salary for a period of five years and he ought to have been considered like similarly situated person, Shri Nilesh M. Patel, who was granted such benefit pursuant to the order passed by this High Court in Special Civil Application No. 30154/2007 dated 06.09.2013. 3. Thus, it is submitted that as per the Government Resolution, the petitioner should have been treated similarly. 4. Learned AGP Shri Yagnik submitted that the petitioner is seeking compassionate appointment because of death occurred in 2000 after such a long lapse of time and, therefore, it may not be entertained. She further submitted that earlier group of petitions were filed and the learned Single Judge rejected those petitions on the ground of delay seeking compassionate appointment. It was submitted that same issue regarding the claim based on the case of Nilesh M. Patel pursuant to the order passed in Special Civil Application No. 30154/2007 dated 06.09.2013 filed by him has been considered. He submitted that in the said judgment, the Hon'ble Division Bench has clearly observed, “18. It was submitted that same issue regarding the claim based on the case of Nilesh M. Patel pursuant to the order passed in Special Civil Application No. 30154/2007 dated 06.09.2013 filed by him has been considered. He submitted that in the said judgment, the Hon'ble Division Bench has clearly observed, “18. In light of the above, and the learned Single Judge having found that there is no explanation for long delay of more than nine years to invoke the jurisdiction of this court under Article 226 of the Constitution of India, when such jurisdiction could have been invoked had the appellants been vigilant when cause of action had arisen for them immediately after they were appointed on ad-hoc basis, we find that learned Single Judge has rightly observed that no ground to explain the delay could be said to have been made out by the appellants to claim relief on the basis of the judgment rendered in the case of another so called similarly situated person. It is not the case of the appellants that they were in any way prevented from invoking the jurisdiction of this court under Article 226 of the Constitution of India when they got compassionate appointment on ad-hoc basis in the year as per the policy dated 15.6.2004 or at least when another person namely Nilesh Muljibhai Patel filed the petition in the year 2007.” 5. He therefore submitted that the present petition may not be entertained. 6. Though the submissions have been made by learned advocate, Shri Majmudar referring to the order passed in case of Nilesh Patel in Special Civil Application No. 30154/2007, the Hon'ble Division Bench in Letters Patent Appeal No. 906/2014 in Special Civil Application No. 7199/2014 and allied matters has clearly made observations declining to grant similar prayer made by other petitioners relying upon the case of Shri Nilesh Patel. It has been observed that the petitioner was not prevented from invoking jurisdiction under Article 226 of the Constitution of India for getting compassionate appointment as there is no explanation which could justify any such delay. 7. Apart from the aspect of delay, even the compassionate appointment cannot be directed to be made in light of the judgment of the Hon'ble Apex Court including the observation made by the Hon'ble Apex Court in case of MGB Gramin Bank Vs. Chakrawarti Singh, (2013) 9 AD 253. 7. Apart from the aspect of delay, even the compassionate appointment cannot be directed to be made in light of the judgment of the Hon'ble Apex Court including the observation made by the Hon'ble Apex Court in case of MGB Gramin Bank Vs. Chakrawarti Singh, (2013) 9 AD 253. Further the Hon'ble Apex Court has made observations in a judgment in case of MGB Gramin Bank v. Chakrawarti Singh (supra). Further, the Hon'ble Apex Court has also made observation in a judgment in case of State Bank of India and Another Vs. Raj Kumar, (2010) 11 SCC 661 . “It is now well settled that appointment on compassionate grounds is not a source of recruitment. On the other hand it is an exception to the general rule that recruitment to public services should be on the basis of merit, by an open invitation providing equal opportunity to all eligible persons to participate in the selection process. The dependents of employees, who die in harness, do not have any special claim or right to employment, except by way of the concession that may be extended by the employer under the rules or by a separate scheme, to enable the family of the deceased to get over the sudden financial crisis. The claim for compassionate appointment is therefore traceable only to the scheme framed by the employer for such employment and there is no right whatsoever outside such scheme........It follows therefore that when a scheme is abolished, any pending application seeking appointment under the scheme will also cease to exist, unless saved. The mere fact that an application was made when the scheme was in force, will not by itself create a right in favour of the applicant.” 8. Therefore in light of this, it is clear that even such a claim for the compassionate appointment could be made providing there is a scheme by the employer. Again such a claim has to be considered if a person like the petitioner claiming such appointment is fulfilling the criteria laid down in the scheme. Therefore, it cannot be claim dehors any such scheme. The present petition therefore cannot be entertained. 9. Again such a claim has to be considered if a person like the petitioner claiming such appointment is fulfilling the criteria laid down in the scheme. Therefore, it cannot be claim dehors any such scheme. The present petition therefore cannot be entertained. 9. Further in a judgment of the Hon'ble Division Bench in a judgment passed in Letters Patent Appeal No. 906/2014 in Special Civil Application No. 7199/2014 and allied group of matters touching the same issue with regard to the claim for the compassionate appointment made on the basis of the case of Shri Nilesh Patel has been turned down and the Hon'ble Division Bench has referred to the judgment of the Hon'ble Apex Court in case of Chennai Metropolitan Water Supply and Sewerage Board and Others Vs. T.T. Murali Babu, AIR 2014 SC 1141 . Therefore, the present petition cannot be entertained and deserves to be dismissed and accordingly stands dismissed in limine. No order as to costs.