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2017 DIGILAW 1695 (GUJ)

Nilesh Kumar Bhojabhai Dabhi v. State of Gujarat

2017-09-26

A.S.SUPEHIA

body2017
JUDGMENT : A.S. Supehia, J. By way of present petition, the petitioner has challenged the communication dated 28.03.2010, passed by the respondent No. 3 wherein the application of the petitioner for compassionate appointment is rejected on the ground that the same was not made within prescribed time limit. 2. The brief facts of the present petition are that the father of the petitioner namely Shri B.H. Dabhi was working as clerk under the respondent No. 5 and he expired on 26.01.2001 while he was in service. The petitioner was minor at the time of death of his father. The mother of the petitioner applied for compassionate appointment, and she was given temporary appointment. On becoming major, the petitioner made an application dated 06.08.2002 after obtaining consent of his mother and other family members for appointment on compassionate ground. Pursuant to the said application, the respondent No. 5 vide office order dated 01.08.2003 appointed the petitioner on the vacant available post temporarily pending in view of his application for compassionate appointment. The petitioner was continued in service as no decision was taken by the authorities on his application. He was paid fixed pay of Rs. 2500/- per month. 3. By way of impugned decision passed by the Director of Corporation the application of the petitioner was rejected. Learned advocate, Mr. Tanmay Karia appearing for the petitioner has submitted that the impugned decision refers to circular dated 25.04.2008 which would not apply in the case of the petitioner as policy prevailing at the time of death of his father will apply. He has also stated the petitioner continued in service as no decision was taken on his aforesaid application and hence service cannot be put to end. 4. Learned advocate, Mr. Karia for the petitioner has also contended that after a period of 7 years, the service of the petitioner cannot be put an end on the ground of proposal for compassionate appointment is rejected. In view of the aforesaid submission, he has urged that the impugned communication dated 28.03.2010 is required to be quash and set aside. 5. Learned advocate, Mr. B.Y. Mankad appearing for the respondent Nos. 4 and 5 has stated that at that relevant time, mother of the petitioner was granted compassionate appointment and, after becoming major, the petitioner applied for the same post by obtaining consent from his family members. 6. 5. Learned advocate, Mr. B.Y. Mankad appearing for the respondent Nos. 4 and 5 has stated that at that relevant time, mother of the petitioner was granted compassionate appointment and, after becoming major, the petitioner applied for the same post by obtaining consent from his family members. 6. He has also stated that the petitioner was temporarily appointed on fixed pay as his application for compassionate ground was under process. The proposals dated 07.08.2003 and 13.07.2004 were also sent to the Director of Corporation for appointing him on compassionate ground. 7. Learned A.G.P., Mr. Soni has submitted that once mother of the petitioner was offered compassionate appointment, her son after becoming major, cannot be appointed on her post, merely because the mother has offered the same. 8. In view of the aforesaid submissions made by the learned advocate, Mr. Mankad and learned A.G.P., Mr. soni, that present petition does not require any interference from this court. 9. Heard learned advocates for the respective parties at length. 10. The undisputed fact remains that after death of father of the petitioner on 26.01.2001, his mother was appointed on the said post. In the letter dated 06.08.2002 addressed by the petitioner to D.E.O., he has mentioned that his mother has withdrawn proposal, hence, the petitioner should be offered appointment. Learned advocate, Mr. Karia was unable to point out under which rules, regulations or provisions of law, interchangeability of the post amongst the members of the family is permitted. 11. In my considered opinion the aforesaid procedure adopted by the petitioner, is de hors the administrative law. Once the mother was offered compassionate appointment, who worked on the said post cannot resign and make internal arrangement with her son offering him appointment on the post of deceased employee. When the mother of the petitioner was already appointed by the respondent-Corporation on compassionate ground, the petitioner had no right of making an application on 06.08.2002, after becoming major claiming the same. This court fails to understand the stance taken by the respondent authorities in sending the proposal of the petitioner for appointing him at the place of his mother when she was already appointed on compassionate ground. Such a stance is nothing but absolute nepotism shown by the authorities towards the petitioner and his family. 12. This court fails to understand the stance taken by the respondent authorities in sending the proposal of the petitioner for appointing him at the place of his mother when she was already appointed on compassionate ground. Such a stance is nothing but absolute nepotism shown by the authorities towards the petitioner and his family. 12. The contention of learned advocate for the petitioner that circular dated 25.04.2008 is incorrectly applied in case of the petitioner, does not merit acceptance, since the said Circular refers to Resolutions dated 10.3.2000 and 7.9.2000 which prescribe the limitation of six months for making an application seeking compassionate appointment. Assuming that the reliance placed by the authority on the Circular dated 25.4.2008 is misplaced, then also it will not make any difference since the undisputed fact remains that the mother of the petitioner was given compassionate appointment immediately, as she was found eligible for the post. The petitioner has not produced any details of her appointment. Once the right of compassionate appointment is consummated, any further right for appointment for the same post by another heir of the family would not arise. The right of compassionate appointment cannot be bequeathed. Even if the impugned order is set aside, then also the petitioner cannot be held to be entitled for compassionate appointment in wake of the glaring facts of the case. 13. In view of the aforesaid undisputed fact, present petition does not require acceptance, even otherwise, by now 16 years have passed from the death of father of the petitioner. The right of compassionate appointed is not a vested right which can be exercised at any time even after the crises created by the death of an employee is over. 14. In view of the afore-noted observations and analysis, in my considered opinion the petition lacks merit. As a consequence, the same is dismissed. Rule discharged. No order as to costs. Petition dismissed.