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2016 DIGILAW 1365 (GUJ)

Vishal Manharbhai Vala v. State of Gujarat

2016-07-19

ABHILASHA KUMARI

body2016
JUDGMENT : Abhilasha Kumari, J. 1. This petition under Article 226 of the Constitution of India has been preferred, inter-alia with a prayer to quash and set aside the order dated 03.02.2011, passed by respondent No. 2, whereby the application of the petitioner for the grant of compassionate appointment has been rejected, as well as the communication dated 04.03.2011, intimating the petitioner regarding the rejection of his application. A direction is prayed for to direct the respondents to reconsider the case of the petitioner for the grant of compassionate appointment sympathetically and to appoint him on a Class-IV post, as expeditiously as possible. 2. The brief facts leading to the filing of the present petition are as follows: 2.1 The father of the petitioner was serving under respondent No. 3- General Hospital as a Driver, on a Class-III permanent post. He died while in harness on 27.05.2008, leaving behind him his widow, a daughter and a son, namely, the present petitioner. Upon the death of his father, the petitioner made an application, along with all relevant documents, for the grant of appointment on compassionate grounds on a Class-IV post, on 11.06.2008. It may be noted that at that point of time, the petitioner was a minor and had not passed the SSC examination which was a prerequisite for compassionate appointment as per the Government Resolution dated 16.03.2005. On 29.07.2008, respondent No. 3 rejected the application of the petitioner by stating that the petitioner had not attained the age of eighteen years and had not passed the SSC examination. The petitioner attained the age of majority on 22.11.2009 and passed the SSC examination in the month of July, 2010. The petitioner made another application to respondents Nos. 2 and 3 on 03.08.2010, requesting them for appointment on compassionate grounds. Respondent No. 3, noting that the petitioner had cleared the SSC examination and had attained the age of majority, opined, vide his letter dated 06.08.2010, addressed to respondent No. 2, that the case of the petitioner may be considered for compassionate appointment. However, respondent No. 2, without taking into consideration the recommendation of respondent No. 3, rejected the application of the petitioner by the impugned order dated 03.02.2011, on the ground that the petitioner had not attained the age of majority and had not passed the SSC examination. Aggrieved thereby, the petitioner has approached this Court. 3. Mr. However, respondent No. 2, without taking into consideration the recommendation of respondent No. 3, rejected the application of the petitioner by the impugned order dated 03.02.2011, on the ground that the petitioner had not attained the age of majority and had not passed the SSC examination. Aggrieved thereby, the petitioner has approached this Court. 3. Mr. C.P. Champaneri, learned advocate for the petitioner, has submitted that the impugned order dated 03.02.2011, passed by respondent No. 2, indicates sheer non-application of mind, as the grounds of rejection contained in the said order, namely, that the petitioner has not attained the age of majority or passed the SSC examination, are factually incorrect as, at the relevant point of time, the petitioner fulfilled both the said requirements. Respondent No. 3, while recommending the case of the petitioner has clearly stated that the petitioner has attained the age of eighteen years and passed the SSC examination, therefore, his case deserves to be considered. Respondent No. 2, without considering the above facts, has mechanically rejected the application of the petitioner by displaying absolute non-application of mind, even though the petitioner possessed the eligibility criteria and his case was deserving of consideration. 3.1 It is further submitted that the petitioner has been unfairly deprived of due consideration for compassionate appointment by the sheer non-application of mind on the part of respondent No. 2. Had it not been for the passing of the impugned order, the petitioner would have been granted appointment, as there was no impediment thereto. Great injustice has been meted out to the petitioner, therefore, the prayers made in the petition deserve to be granted. 4. Mr. Niraj Ashar, learned Assistant Government Pleader, appearing for the respondents, has strongly opposed the petition by submitting that the petitioner attained the age of majority on 22.11.2009. As per the Government Resolution dated 10.03.2000, he ought to have made the application within six months of attaining majority. However, the petitioner made the application on 06.08.2010, beyond the period of six months, therefore, his application has rightly been rejected. 4.1 Learned Assistant Government Pleader has taken the Court through the affidavit-in-reply filed on behalf of respondent No. 2, wherein this ground has been canvassed, in Paragraph-3. However, the petitioner made the application on 06.08.2010, beyond the period of six months, therefore, his application has rightly been rejected. 4.1 Learned Assistant Government Pleader has taken the Court through the affidavit-in-reply filed on behalf of respondent No. 2, wherein this ground has been canvassed, in Paragraph-3. 4.2 It is further submitted by the learned Assistant Government Pleader that as per the judgment of the Supreme Court in the case of SBI v. Anju Jain reported in (2008) 8 SCC 475 , appointment on compassionate ground is not to be considered as the right of a person as such appointment is violative of the rule of equality enshrined and guaranteed under Article 14 of the Constitution of India. Hence, the petitioner has no right to compassionate appointment. 4.3 Relying upon the judgments of the Supreme Court in the case of State Bank of India v. Somvir Singh reported in (2007) 4 SCC 778 and Food Corporation of India v. Ram Kesh Yadav reported in (2007) 9 SCC 531, it is submitted that appointment on compassionate grounds can only be made as per the Scheme, therefore, if the petitioner does not fulfil the requirements of the Scheme, he cannot claim such appointment. 4.4 Reliance has also been placed upon the judgment of the Supreme Court in the case of State of Jharkhand v. Shiv Karampal Sahu reported in (2009) 11 SCC 453 , wherein it has been held that appointment on compassionate ground must be made keeping in view the provisions contained in Articles 14 and 16 of the Constitution of India and such Schemes cannot be given an expansive meaning. 4.5 On the above grounds, it is prayed that the petition be rejected. 5. This Court has heard learned counsel for the respective parties, perused the averments made in the petition and the contents of the impugned order and other documents on record. 6. Insofar as the factual aspects of the matter are concerned, there is no doubt regarding the fact that on 27.05.2008, when the father of the petitioner passed away, the petitioner was a minor and has not passed the SSC examination. The first application made by the petitioner is made on 11.06.2008, within less than a month of the death of his father. Admittedly, on the date of the first application as well, the petitioner had not passed the SSC examination and was still a minor. The first application made by the petitioner is made on 11.06.2008, within less than a month of the death of his father. Admittedly, on the date of the first application as well, the petitioner had not passed the SSC examination and was still a minor. The said application was rejected by respondent No. 2 by the order dated 29.07.2008, on the very same grounds, that is, lack of majority and the requisite educational qualification as required by the Government Resolution dated 16.03.2005. The petitioner was born on 22.11.1991 and attained the age of majority on 22.11.2009. He made a second application for the grant of compassionate appointment on 03.08.2010, addressed to respondents Nos. 2 and 3. On receipt of the said application, respondent No. 3 opined in a communication dated 06.08.2010 addressed to respondent No. 2, that the petitioner, having attained the age of eighteen years and having passed the SSC examination, could now be considered for the grant of compassionate appointment. 7. It is rather surprising to note that in spite of the fact that it is on record that the petitioner has attained the age of eighteen years and passed the SSC examination, respondent No. 2 proceeded to deal with his case as though the petitioner is still a minor and has not obtained the requisite educational qualifications. This fact clearly emerges from a perusal of the impugned order dated 03.02.2011. It appears that respondent No. 2, while passing the said order, is oblivious of the record and has not even bothered to go through the letter dated 06.08.2010 addressed to him by respondent No. 3. The impugned order dated 03.02.2011, apart from displaying sheer non-application of mind further indicates the casual and mechanical manner in which the application was dealt with by respondent No. 2, contrary to the record. The reasons for rejection contained in the impugned order that the petitioner has not attained the age of eighteen years and has not passed the SSC examination are factually incorrect and absolutely redundant. The impugned order has been passed on a thoroughly wrong premise, apart from being an incorrigible exercise in carelessness. The manner in which respondent No. 2 has dealt with the application of the petitioner is required to be deprecated by this Court. The impugned order has been passed on a thoroughly wrong premise, apart from being an incorrigible exercise in carelessness. The manner in which respondent No. 2 has dealt with the application of the petitioner is required to be deprecated by this Court. The Court is constrained to observe that, by virtue of the said order, great injustice has been done to the petitioner, who has been deprived of a fair opportunity of consideration for the grant of compassionate appointment as he fulfilled the necessary eligibility criteria as per the policy which was in existence at the relevant point of time. 7.1 The reason stated in the affidavit-in-reply, to the effect that the petitioner ought to have made an application within six months from the date of his attaining the age of majority, whereas he has done so after eight months, is not the reason for the rejection of the application in the impugned order. 7.2 It is a settled position of law reiterated by the Supreme Court several times in a catena of judgments that no fresh reasons can be introduced by way of an affidavit-in-reply in order to supplement an order of an authority, subsequent to the passing of the said order. 8. Reference may be made to the case of Mohinder Singh Gill and another v. The Chief Election Commissioner, New Delhi and others reported in AIR 1978 SC 851 , wherein this proposition of law has been stated by the Supreme Court in the following terms: "8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose J. in Gordhandas Bhanji ( AIR 1952 SC 16 ) (at p. 18): "Public orders publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself". Orders are not like old wine becoming better as they grow older." 9. The reason thus stated in the reply, which does not find mention in the impugned order, cannot be taken into consideration by this Court as a ground for the rejection of the application of the petitioner. 10. In the view of this Court, the petitioner has been unfairly dealt with by respondent No. 2 and has been deprived of an opportunity to be considered for compassionate appointment under the prevailing Scheme, even though he was qualified and eligible. 11. A prayer has been made by the petitioner that the respondents be directed to grant compassionate appointment to him. The Court may not be in a position to grant this prayer, for the reason that the policy under which the petitioner is claiming appointment is no longer in existence and has been replaced by a new policy promulgated by the Government Resolution dated 05.07.2011, whereby the concept of appointment on compassionate grounds has been done away with and the State Government has come out with a Scheme for the grant of lump-sum financial assistance to the eligible dependants of deceased Class III and IV Government employees. The entitlement of a person under the old policy has been dealt with by this Court in the case of Vishal Keshubhai Chudasama v. State of Gujarat reported in 2014(2) GLR 1243 , wherein it is held as below: "In the considered view of this Court, the case of the petitioner is squarely covered by the ratio of the judgments of the Apex Court in State Bank of India v. Raj Kumar, 2010(11) SCC 661 and M.G.B. Gramin Bank V. Chakrawarti Singh, 2013(10) SCALE 223 . The petitioner cannot claim any right to have his application decided under the erstwhile Government Resolution dated 10-3-2000. The old policy not longer exists and the only right of consideration available to the petitioner us under the new policy laid down in Government Resolution dated 5-7-2011, which provides for payment of financial aid. (Para-19)" 12. The petitioner cannot claim any right to have his application decided under the erstwhile Government Resolution dated 10-3-2000. The old policy not longer exists and the only right of consideration available to the petitioner us under the new policy laid down in Government Resolution dated 5-7-2011, which provides for payment of financial aid. (Para-19)" 12. One of the stipulations in the Government Resolution dated 05.07.2011 is that a person whose application for compassionate appointment has been rejected under the old Scheme, would not be eligible to apply under the new Scheme. Learned Assistant Government Pleader has submitted that even if the Court is inclined to direct the respondents to consider the case of the petitioner under the new policy dated 05.07.2011, the rejection of his case under the erstwhile policy would come in his way. 13. This Court is unable to agree with the submission advanced by the learned Assistant Government Pleader, for the simple reason that the rejection of the case of the petitioner by respondent No. 2 by the impugned order dated 03.02.2011 is, in itself, unsustainable in law as the said order has been passed without application of mind and dehors the factual position on record. An order that is unsustainable in law cannot be permitted to deprive the petitioner of due consideration under the new Scheme. The petitioner would have been considered for the grant of compassionate appointment at the relevant point of time, had it not been for the illegal order passed by respondent No. 2. However, at this point of time, when the old Scheme of compassionate appointment is no longer in force, the Court may not be in a position to direct the respondents to consider the case of the petitioner under the old Scheme. Nevertheless, the Court is of the firm view that injustice has been meted out to the petitioner by the impugned order. The least that can be done to repair the legal injury is to direct the respondents to consider the case of the petitioner under the new policy contained in the Government Resolution dated 05.07.2011, for the grant of financial assistance. 14. Insofar as the judgments relied upon by the learned Assistant Government Pleader are concerned, there can no dispute regarding the principles of law propounded therein. It is, no doubt, true that no right vests in any person for the grant of compassionate appointment. 14. Insofar as the judgments relied upon by the learned Assistant Government Pleader are concerned, there can no dispute regarding the principles of law propounded therein. It is, no doubt, true that no right vests in any person for the grant of compassionate appointment. At the same time, it cannot be denied that if any person such as the petitioner, is eligible as per the Scheme/Policy of the State Government and has a right to be considered for appointment, such consideration cannot be denied to him on illegal and irrelevant considerations flowing from a shocking non-application of mind on the part of the concerned authorities, to the facts and circumstances of the case. The case of the petitioner was well within the purview of the policies dated 10.03.2010 and 16.03.2005, therefore, he could not have been denied the right of consideration as per the said policies. 15. For above stated reasons, this Court considers it just and proper to pass the following order: The impugned order dated 03.02.2011, passed by respondent No. 2, is quashed and set aside. The concerned respondents shall consider the case of the petitioner under the new policy laid down in the Government Resolution dated 05.07.2011, as revised from time to time, as though the petitioner has made an application under the said Government Resolution, in light of the observations made in this judgment. As the rejection of the case of the petitioner under the old Scheme has been quashed and set aside, the said rejection shall not come in the way of the petitioner for being considered under the Government Resolution dated 05.07.2011. After considering the case of the petitioner, as above, the respondents shall intimate the outcome to him, as expeditiously as possible, but not later than a period of five months from the date of the receipt of a copy of this judgment, without fail. 16. The petition is partly-allowed, in the above terms. Rule is made absolute, accordingly. There shall be no orders as to costs.