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Gujarat High Court · body

2015 DIGILAW 226 (GUJ)

RAKESH NARSINHBHAI PARMAR v. STATE OF GUJARAT

2015-02-25

K.M.THAKER

body2015
ORDER : 1. Heard Ms.Shah, learned advocate for Mr.Mehta, learned advocate for the petitioner and Mr.Pandya, learned AGP. 2. Rule. In view of the facts of the case, Rule is made returnable forthwith. Learned AGP has waived service of Rule. At the request of learned advocate for the petitioner and with consent of learned AGP, the petition is taken up for hearing and final order today. 3. In present petition, the petitioner has prayed, inter alia, that: “7(B) Be pleased to issue writ of mandamus or any other appropriate writ, order or direction for quashing and setting aside the correspondence dated 15.5.2013 issued by respondent no.4 and further be pleased to hold the same being highly unfair, improper and illegal on the part of respondent authorities. (C) Be pleased to issue appropriate writ, order or direction directing the concerned authority to decide the application of the petitioner for compassionate appointment on the basis of the policy prevailing at relevant point of time i.e. as per GR dated 10.3.2000 with in stipulated time period which may be deemed just and proper.” 4. Today, at the time of hearing, learned advocate for the petitioner clarified, stipulated and declared that in view of the facts of the case and the decision by Hon’ble Apex Court as well as by High Court, the petitioner is ready and willing to forgo his claim for appointment on compassionate ground and instead, he is ready and willing to accept lump sum payment as per the policy which is in force since July 2011. 5. Learned AGP submitted that the respondents are willing and agreeable to consider petitioner’s case for lump sum payment and to pay such benefit. Learned AGP further submitted that the request for appointment on compassionate ground cannot be entertained or accepted by the respondents because such policy is not now in force and the respondents cannot consider the petitioner’s case for lump sum payment in absence of any application by the petitioner, however, the petitioner may submit such request. 6. In this view of the matter, it is appropriate to take certain relevant dates. 6.1 The petitioner’s father was in service with the respondents and he died on 25.1.2009 while in service. 6.2 Immediately thereafter the petitioner submitted an application dated 2.2.2009 and prayed for appointment on compassionate ground. 6. In this view of the matter, it is appropriate to take certain relevant dates. 6.1 The petitioner’s father was in service with the respondents and he died on 25.1.2009 while in service. 6.2 Immediately thereafter the petitioner submitted an application dated 2.2.2009 and prayed for appointment on compassionate ground. 6.3 The respondents, vide letter dated 6.2.2009, sought certain clarifications and supporting documents from the petitioner. 6.4 The petitioner has claimed that the petitioner had supplied all relevant details and documents, including those which were asked for by the respondents. 6.5 For long time, the respondents did not process and did not decide the petitioner’s application seeking appointment on compassionate ground. The application remained pending. 6.6 According to the petitioner, the concerned department recommended the case of the petitioner vide communication dated 28.1.2011. 6.7 Even thereafter the competent authority did not process and did not decide the petitioner’s application and the application remained pending with the competent authority. 6.8 In the meanwhile, the policy allowing appointment on compassionate ground came to be withdrawn/cancelled and instead the respondents introduced policy to pay lump sum amount, subject to the terms and conditions of the policy dated 5.7.2011. 6.9 The said policy came into force from July 2011. 6.10 However, even thereafter the petitioner’s application was not considered and the application remained pending with the competent authority. 6.11 Subsequently, in April 2012, the concerned authority informed the petitioner that his application cannot be considered because the policy allowing appointment on compassionate ground is closed and is now not in operation and his case will be considered for lump sum payment. 7. The said decision was taken by the authority and conveyed to the petitioner in 2013, i.e. after the policy to pay lump sum amount came in force. 8. In that view of the matter, the petitioner’s case ought to have been considered in light of the terms and conditions of the policy dated 5.7.2011, more particularly in light of the provision under policy which prescribes that the application pending on the date when the policy came in force will be treated as applicable under the new policy and will be considered for granting benefit under the new policy, i.e. policy which came in force in July 2011. 9. The petitioner’s application ought to have been considered in light of the said provision under the scheme of July 2011. 10. 9. The petitioner’s application ought to have been considered in light of the said provision under the scheme of July 2011. 10. It is claimed by the petitioner that before 11.4.2013, his application was never rejected by the competent authority. Therefore, the petitioner’s case does not fall within the clause of the new policy which provides that any application which is decided/rejected before 5.7.2011, will not be eligible for consideration under new policy. 11. Having regard to such facts, the petitioner’s application deserves consideration under policy of July 2011. 12. Having regard to this aspect, today, learned advocate for the petitioner stipulated and declared that the petitioner does not press his claim for appointment on compassionate ground and he is ready and willing to accept lump sum payment as per the policy of July 2011, instead of compassionate appointment. 13. In this view of the matter, the said request of the petitioner is required to be considered by the respondents. 14. However, learned AGP cited technical objection, viz. unless any request/application by the petitioner is submitted, it would not be possible for the authority to consider such claim of the petitioner. 15. As such, in view of the terms under the policy, such contention is not tenable, however, with a view to ensuring that the petitioner’s claim is considered and decided expeditiously and with a view to ensuring that the petitioner’s request/case may not be delayed on account of any technicalities, present petition is disposed of with following directions. 16. Without prejudice to the contention that the petitioner’s application for appropriate benefit under the new scheme of July 2011 can be considered by the authority because the application submitted in February 2009 was pending as on the date when the policy for 2011 came to be introduced, the petitioner will submit fresh application to the respondents and claim alternative benefit available under new policy of July 2011. The petitioner may submit such application within one week. 17. The competent authority of the respondents will take up that application for appropriate order and pass necessary order and take appropriate action and preferably within six weeks from the receipt of the application. 18. The said application will be considered by the respondents under the new scheme without raising the contention that the petitioner’s application which was submitted in February 2009 came to be rejected vide communication dated 11.4.2012. 18. The said application will be considered by the respondents under the new scheme without raising the contention that the petitioner’s application which was submitted in February 2009 came to be rejected vide communication dated 11.4.2012. For the aforesaid purpose, so as to enable the petitioner to submit the application and so as to enable the respondents to take appropriate action in light of the policy introduced in July 2011 and having regard to the fact that the petitioner’s application dated 2.2.2009 was pending on the date when the new policy came to be introduced and without considering the said aspect, the impugned order dated 11.4.2012 is passed, the said order is set aside and the respondents are directed to consider the petitioner’s application in terms of the policy of July 2011. With the aforesaid clarifications and observations, the petition is partly allowed and rule is made absolute to the aforesaid extent.