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2016 DIGILAW 1853 (GUJ)

Ketangiri K. Maghnathi v. State of Gujarat

2016-09-01

J.B.PARDIWALA

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JUDGMENT : J.B PARDIWALA, J. By this writ application under Article 226 of the Constitution of India, the writ applicant, a Class IV employee, serving with the Forest Department of the State Government, has prayed for the following reliefs: “14 (A) This Hon'ble Court may be pleased to quash and set aside the impugned order dated 24.9.2004 insofar as it cancels the order appointing the petitioner on the post of Beat Guard pursuant to the order issued by the respondent No. 1 on 18th August, 2002 and to pay him the regular salary with arrears from 18th August, 2003. (B) This Hon'ble Court may be pleased to direct the respondent to appoint the petitioner on the post of Beat Guard, which is Class III post pursuant to the order dated 18th August 2003. 14(BB) This Hon'ble Court may be pleased to strike down the terms ‘adhoc’ contained in clause (a) and affixed monthly salary of Rs.1500/- in clause (4) as violative of Article 14, 16 21 of the Constitution and against the provision contained in Article 39(a), 39(d) and 43 of the constitution. (c) Pending admission, hearing and final disposal of this petition, this Hon'ble Court may be pleased to issue ad-interim direction on the respondent to implement the order dated 18th August 2003. 14(cc) The respondents may be directed to provide employment to class IV post on the regular salary in the prescribed pay scale, which scale has been fixed under the revision of pay rules. (D) This Hon'ble Court may be pleased to pass such other and further order/s as deemed fit, just and proper in the interest of justice.” 2. It appears from the materials on record that the father of the writ applicant was serving as a ‘Beat Guard’. The father passed away on 19thNovember 2000 while in service. On the demise of his father, the writ applicant preferred an application seeking compassionate appointment on the post of Beat Guard, Class III. At that point of time, the policy of the State Government as regards compassionate appointment was being governed by the Government Resolution dated 10th March 2000. According to the policy of the State Government, for the purpose of giving compassionate appointment on the post of Beat Guard, Class III, the minimum qualification required was 10th standard pass. At that point of time, the policy of the State Government as regards compassionate appointment was being governed by the Government Resolution dated 10th March 2000. According to the policy of the State Government, for the purpose of giving compassionate appointment on the post of Beat Guard, Class III, the minimum qualification required was 10th standard pass. At the same time, the statutory rules framed by the State of Gujarat, in exercise of its power, under proviso to the Article 309 of the Constitution of India, called the “Guards (Subordinate Forest Service) Recruitment Rules, 1969” provided that the minimum qualification should be Gujarati 7th standard. It appears that at the relevant point of time, the said conflict was over-looked. The writ applicant insisted that since the statutory rules provided that the minimum qualification should be Gujarati 7th standard pass and he being Gujarati 9th standard pass, he should have been given compassionate appointment on the post of Beat Guard, Class III. The State Government declined to do so. 3. Hence, this writ application. 4. Mr. M.D Rana, the learned counsel appearing for the writ applicant submitted that although this writ application was admitted in the year 2004, yet in the year 2008 when the matter was taken up for hearing, it felt from the Court that at least, till the disposal of this writ application, the writ applicant should be given compassionate appointment in Class IV. In due deference to the request made by this Court, the writ applicant was given compassionate appointment in Class IV. As on date, he is serving as ‘Peon’, Class IV on regular basis in the Forest Department. I am told that he has also been paid one increment. Mr. Rana, the learned counsel appearing for the writ applicant vehemently submitted that the policy of the State Government as regards compassionate appointment prevailing at the relevant point of time could not have been contrary to the statutory rules framed by the State Government. According to him, if the statutory rules governing the appointment to the post of Beat Guard, Class III provided that the minimum qualification should be Gujarati 7th standard, then the Government could not have framed a policy insisting for Gujarati 10th standard pass. According to him, if the statutory rules governing the appointment to the post of Beat Guard, Class III provided that the minimum qualification should be Gujarati 7th standard, then the Government could not have framed a policy insisting for Gujarati 10th standard pass. He invited my attention to the averments made in para 7 of the writ application, which reads as under: “7 The petitioner points the fact that, the notification laying down the rules for such appointment seems to be prevailing as the Government of Gujarat has after the death of one Shri Mohanbhai Chudasma on 21.1.2002, who was working in the Port Department as Peon has considered the appointment of his son Shri Hasmukhrai Chudasma as Beat Guard by an order No. Rahem/2002/507/Dtd. 27.12.2002 and placed him at Junagadh. It is the information of the petitioner that he has passed only 7th std. and that the authorities have considered the appointment on compassionate appointment basis and conferred the post of Beat Guard. The appointment is not cancelled and he is still working as Beat Guard.” 5. Mr. Rana, the learned counsel appearing for the writ applicant further invited my attention to the affidavit-in-reply filed on behalf of the State Government, wherein the averments made in para 7 referred to above, have been dealt with as under: “3 C) With reference to paragraph-7, I say that prior to March-2003, some candidates having educational qualification of 7th Std. or more have been appointed as Beat Guard on the basis of recommendation from Gujarat Subordinate Service Selection Board and that too considering old recruitment rules wherein educational qualification for appointment to the post of Beat Guard was 7th standard. It is further respectfully submitted that the Government Resolution dated 10.3.2000 issued by General Administration Department for appointment on compassionate ground was not taken into account by Gujarat Subordinate Service Selection Board while issuing the allotment letter as stated herein above. This error was come into light on 22.3.2003 when one Shaileshbhai Hasmukhbhai Patel having the qualification of SSC failed was recommended by Gujarat Subordinate Service Selection Board for appointment to the post of Beat Guard. The Government Resolution issued by General Administration Department for appointment on compassionate ground for Class-III post prescribed a minimum qualification as SSC passed. This error was come into light on 22.3.2003 when one Shaileshbhai Hasmukhbhai Patel having the qualification of SSC failed was recommended by Gujarat Subordinate Service Selection Board for appointment to the post of Beat Guard. The Government Resolution issued by General Administration Department for appointment on compassionate ground for Class-III post prescribed a minimum qualification as SSC passed. The matter was referred to Gujarat Subordinate Service Selection Board as well as Government in Forest Department for seeking necessary guidance in this issue. Since March-2003, 10 cases in which educational qualification was less than SSC, were commended for appointment as Beat Guard Class-III by Gujarat Subordinate Service Selection Board while educational qualification prescribed by government resolution dated 10.3.2003, prescribes qualification of SSC for Class-III appointment. As stated herein above, after due deliberation, the decision is revised and accordingly, order of allotment of 7 candidates out of 10 candidates in Class-IV in fixed salary of Rs.1500.00/- per month have been issued by Gujarat Subordinate Service Selection Board. The appointment for the other 3 candidates is yet to be issued by Gujarat Subordinate Service Selection Board.” 6. Mr. Rana, the learned counsel therefore prays that there being merit in this writ application, the same be allowed and the writ be issued directing the State Government to appoint the writ applicant on the post of Beat Guard, Class III. 7. On the other hand, this writ application has been vehemently opposed by Mr. Krutik Parikh, the learned Assistant Government Pleader appearing for the State of Gujarat. He submitted that although the statutory rules at the relevant point of time provided that the minimum qualification for the appointment to the post of Beat Guard, Class III was Gujarati 7th standard, yet the policy decision of the State Government as regards compassionate appointment was different. He pointed out that so far as the appointments on compassionate ground are concerned, the minimum qualification prescribed therein was Gujarati 10th standard pass. He further pointed out that at a later stage, even the statutory rules came to be amended and now the minimum qualification prescribed in the rules is Gujarati 10th standard pass. He pointed out that so far as the appointments on compassionate ground are concerned, the minimum qualification prescribed therein was Gujarati 10th standard pass. He further pointed out that at a later stage, even the statutory rules came to be amended and now the minimum qualification prescribed in the rules is Gujarati 10th standard pass. According to the learned A.G.P, the father of the writ applicant might have been serving as a Beat Guard, Class III, but it was not obligatory on the part of the State Government to provide compassionate appointment to the son on the very post i.e Beat Guard, Class III. The compassionate appointment could have been even as a Peon, Class IV. In short, the submission of Mr. Parikh, the learned A.G.P is that the appointment of the writ applicant in the year 2008 on the post of Peon, Class IV was in accordance with the policy of the State Government prevailing at the relevant point of time i.e dated 10th March 2000. He, therefore, prays that there being no merit in this writ application, the same may be rejected. 8. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls my consideration is whether the writ applicant is entitled to seek compassionate appointment on the post of Beat Guard, Class III. 9. I am of the view that the conflict between the statutory rules governing the appointment on the post of Beat Guard, Class III so far as the educational qualification is concerned with that of the policy of the State Government as regards the compassionate appointment by itself will not entitle the writ applicant to assert that he should have been given the compassionate appointment on the post of Beat Guard, Class III. One could have been normally affected when compassionate appointment is given the person concerned gets into the service without any competition. In such circumstances, if the State Government thought fit to insist that the person should possess the minimum qualification of Gujarati 10thstandard pass for being appointed on the post of Beat Guard, Class III, then in my view, no illegality could be said to have been committed. 10. In such circumstances, if the State Government thought fit to insist that the person should possess the minimum qualification of Gujarati 10thstandard pass for being appointed on the post of Beat Guard, Class III, then in my view, no illegality could be said to have been committed. 10. So far as the second submission of the learned counsel appearing for the writ applicant as regards one Hashmukh Chudasama is concerned, the Government has admitted that it was a mistake on the part of the Gujarat Subordinate Service Selection Board. In what manner, the mistake was rectified has been explained in para 3C to the affidavit-in-reply filed on behalf of the Government. 11. Over and above, the case in hand is one of compassionate appointment. No person can assert as a matter of legal right that he should be given compassionate appointment. The father of the writ applicant no doubt was serving as a Beat Guard, Class III. When he passed away but that does not necessarily mean that the son while seeking compassionate appointment and should have been given appointment on the post of Beat Guard, Class III. There cannot be such insistence on the part of the person seeking compassionate appointment. 12. The writ applicant as on date is in service as a Peon, Class IV. He has put in eight years of service by now and I am told that he will be considered for promotion on the post of Beat Guard, Class III as and when his turn will fall due. 13. I take notice of the fact that in the application filed by the writ applicant on 19th November 2004, his request is that he should be given compassionate appointment on the post of Peon, Class IV. 14. For the foregoing reasons, this writ application fails and is hereby rejected. Rule is discharged.