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2017 DIGILAW 69 (GUJ)

Jagdishbhai Mohanbhai Rana v. State of Gujarat

2017-01-13

S.G.SHAH

body2017
JUDGMENT : S.G. Shah, J. 1. Heard learned advocate Mr. D.N. Chhatrapati for learned advocate Mr. Nilesh Pandya for the petitioner and learned AGP Mr. Swapneshwar Gautam for respondent - State. Perused the record. 2. Petitioner has sought indulgence of this Court under Article 14, 16 and 226 of the Constitution of India for quashing and setting aside the order dated 17.01.2008 by the respondent, copy of which is produced at annexure M at page 47 with the petition. 3. By impugned order, respondents have refused to appoint the petitioner on compassionate ground disclosing that first son of the deceased government employee Mr. M.C. Rana has not applied for the post and that income of the family was Rs. 3150/- at the relevant time, and, therefore, as per the policy, petitioner is not entitled for compassionate appointment. Respondents have explained their action of not appointing the petitioner on compassionate basis by stating that since Rs. 4,00,000/- is being offered to such persons after death, interest on Rs. 4,00,000/- is Rs. 2500/- and, therefore, if petitioner is paid Rs. 4,00,000/- then he would get Rs. 2500/- plus regular pension and, hence, he is not entitled for compassionate appointment because his financial condition would be good. It is quite clear and obvious that respondents have never offered Rs. 4,00,000/- to the petitioner but the record shows that in fact, respondents have dragged the matter from 2003 to 2008 without assigning proper reason and without offering appointment on compassionate ground and thereby different reasons were put forwarded on three different occasions and thereafter now it is submitted that because of passage of time, now it cannot be said that petitioner requires immediate financial help because of death of government employee and, therefore, compassionate appointment cannot be granted. 4. It is undisputed fact that father of the petitioner is working with Government Printing Press at Vadodara but he expired on 09.01.1998. After the death of government employee, his widow has initially applied on 25.06.1999 considering the date of death and the applicable policy, which was in existence at the particular time and to be considered irrespective of any change or modification of such scheme thereafter i.e. from the year 1998-99 till date. Therefore, when it is clear and certain that at the relevant time there was a scheme since the year 1991 which was in force with several modifications in between. Therefore, when it is clear and certain that at the relevant time there was a scheme since the year 1991 which was in force with several modifications in between. The scheme and policy which was applicable in the year 1997 is to be applied to the present case irrespective of any further amendment in such scheme. It is also undisputed fact that petitioner was born on 25.03.1987 and, therefore, at the relevant time when his father expired, he was under age i.e. minor. 5. The record shows that the application filed by the mother of the present petitioner being widow of the deceased government employee dated 25.06.1999 was not decided till 28.12.1999 i.e. for 6 months and, therefore, considering the situation on such date, petitioner and his mother have conveyed the respondent that instead of widow, compassionate appointment may be given to the present petitioner. Thereafter, for 18 months respondents were silent and it was conveyed to the petitioner only on 11.02.2003 to remain present for the purpose of compassionate appointment. But thereafter on 21.02.2003 his request was refused but now conveying that he has not attained the age of majority i.e., he is below 18 years of age and, therefore he cannot apply. In that case, why on 01.06.2001 it was stated that since petitioner was less then 15 years, he cannot be an appointed. Government has to behave like model employer and they are supposed to play fair with their employees and their legal heirs, in as much as, they have to convey the correct position to them. The fact remains that respondents have conveyed the different reasons at different time for refusal of compassionate appointment to the petitioner. Surprisingly, in the impugned order they are again conveying the petitioner that because of his financial condition, he is not entitled to compassionate appointment though such ground is only one of the grounds for refusal of compassionate appointment, it becomes clear that it is a hypothetical ground put forth by the respondent and, therefore, by all means it cannot be considered for refusal. It cannot be ignored that pursuant to Government Resolution dated 16.12.1991 even minor son of the deceased government employee is entitled to apply after attaining the age of majority but such condition has been liberalized by circular dated 97 wherein by widening the scope of compassionate appointment and that too based upon the representation of several members including members of legislative assembly and members of government and thereby with effect from 01.12.1991 time limit for applying compassionate appointment has been increased from two years to five years and for minor candidate the period of 6 months to two years after the date of attaining majority. Further, in addition to such extending time period, the basic change is to the effect that now the word "first child" is omitted from decisive line of the circular making it clear that any of the minor is entitled to compassionate appointment. It is because of the fact that as per our social set up, generally if elder child is female then by all probability after her marriage, she would go to her in-laws home and her income would not be helpful to the family of the deceased employee. Therefore, considering such social set up when government itself has changed its decision by omitting the word "first child", then it cannot be submitted by the respondent that since petitioner is not the first child of the deceased employee, he is not entitled to the compassionate appointment. 6. Though it is not the issue at present in such circular dated 26.02.1997 we must appreciate later part also. Wherein it is stated that if there is no vacancy in particular department of the Secretariat, then, principle of pulling off is to be applied, thereby vacancies of all the different departments are to be clubbed together and when an employee of particular department has died even if there is no vacancy in the department, then, his heir can be given compassionate appointment in any other department. This shows the scheme and intention of the Government which is nothing, but widening the scope of compassionate appointment to the legal heirs of deceased employee, who are otherwise eligible for such post on lowest post in Class-IV. 7. In view of such facts and circumstances, the defence version is absolutely untenable when respondents are denying compassionate appointment on one or other count for couple of years. 7. In view of such facts and circumstances, the defence version is absolutely untenable when respondents are denying compassionate appointment on one or other count for couple of years. Considering the provision of G.R. dated 16.12.1991, irrespective of widening of the scope pursuant to Circular dated 26.2.1997, when petitioner has applied for compassionate appointment, which was denied because of his underage, after attaining the age of majority, now, respondents have remained silent and therefore, petitioner has addressed letter dated 5.4.2005 and because of non-action on the part of the respondents, he was obliged to address the letter through his advocate, which had also remained unattended. Therefore, petitioner has no option, but to file one Special Civil Application No. 15917 of 2007 before this Court. In such Special Civil Application by its order dated 25.6.2007, the Co-ordinate Bench of this Court has directed the respondents to consider the application made by the petitioner for compassionate appointment as per the policy prevailing at the relevant time and to pass appropriate reasoned order in accordance with law within a period of three months from the date of receiving the copy of the said order and to communicate the same to the petitioner immediately. It is also made clear in such direction that if ultimate decision of the respondent - authority is against the petitioner, it is open for the petitioner to challenge the same before appropriate forum in accordance with law. Therefore, by all means, respondents have to decide the application of the petitioner for compassionate appointment as per the policy prevailing at the relevant time. However, the impugned order shows that respondents have pick and chose the conditions from different schemes for denying the compassionate appointment to the petitioner and failed to abide by the directions of this Court to decide the application of the petitioner within three months when the impugned order is passed only on 17.1.2008. 8. As discussed herein above, though by order dated 26.2.1997, condition regarding first child has been removed and period of limitation has been increased to two years after attaining the age of majority, respondents have taken such ground for refusing the compassionate appointment. 8. As discussed herein above, though by order dated 26.2.1997, condition regarding first child has been removed and period of limitation has been increased to two years after attaining the age of majority, respondents have taken such ground for refusing the compassionate appointment. Similarly, though pursuant to G.R. dated 7.9.2002, consideration of income is out of scope w.e.f. 1.1.1996, i.e. though application is pending since the year 1998, respondents have given the same ground that financial condition of the petitioner is sufficient for refusing compassionate appointment. As already discussed herein above, for such determination, respondents have unnecessarily considered the hypothetical calculations as if Rs. 4 Lacs is paid to the petitioner as compensation in lieu of compassionate appointment, though no such amount has ever been ever or paid at all to the petitioner. 9. Thereby, though the facts are very much clear, the respondents have resisted the petition by filing an affidavit in reply dated 21.11.2008 simply reiterating the grounds mentioned in their impugned order, which are taken care of in above discussion. With such affidavit in reply, now, the petitioner has came forward with the G.R. of 2005, but they failed to realise that they have to pass impugned order as per the directions of the Hon'ble Court in previous litigation, which specifically confirms that application is to be decided as per the policy prevailing at the relevant time and therefore, if G.R. of 2005, is making any changes in the requirement of compassionate appointment, then, it is not material at all. Therefore, only because refusal is in the year 2008, the policy of 2005 cannot be looked into, but policy of 1991 is to be considered with appropriate modification and amendment till date of application, but in any case modification in Scheme after the death or after the application, is not much material, which is settled legal position pursuant to decision in the case of Canara Bank & Anr. v. M. Mahesh Kumar reported in (2015)7 SCC 412 . It would be appropriate to recollect the decision in the case of Digvijaysinh Mahendrasinh Gohil v. State of Gujarat reported in LPA No. 2615 of 2010 wherein Division Bench of this Court has directed the respondents to consider the case of the petitioner before it, who has applied after attaining the age of majority. It would be appropriate to recollect the decision in the case of Digvijaysinh Mahendrasinh Gohil v. State of Gujarat reported in LPA No. 2615 of 2010 wherein Division Bench of this Court has directed the respondents to consider the case of the petitioner before it, who has applied after attaining the age of majority. This would negativate the submission by the respondents that now by passage of time, it cannot be said that petitioner is in need of immediate service and therefore, he cannot be appointed as such. 10. As against that, respondents are relying upon the case of State of Gujarat v. Arvindkumar T. Tiwari reported in (2012)9 SCC 545 wherein the Hon'ble Supreme Court of India has observed that person who does not possess requisite qualification, cannot even apply for recruitment since his appointment would be contrary to the statutory rules and therefore, would be void in law. Such observation was with reference to the eligibility criteria for Class-IV post of Peon, for which passing of 10th Std. was bare minimum and therefore, Court has observed that if petitioner was 8th Std. fail, then, he is not entitled for such appointment even on compassionate ground. However, the fact remains that at present, that is not the issue before us inasmuch as there was no eligibility criteria of minimum 10th Std. pass for Class-IV employees at the relevant time and therefore, such judgment would not help the respondents for escaping from their responsibility and liability to show equality amongst all equally situated legal heirs of their employees, irrespective of their liking and disliking. 11. In view of above facts and circumstances, the impugned order is certainly arbitrary, perverse and showing discrimination and not only against the settled principle of law, but also the directions of this Court in previous judgment to decide the application as per the prevailing policy at the relevant time and thereby, when refusal of compassionate appointment is based upon combined reading of several policies and thereby, strictly not following the policy, which was applicable at the relevant time, the impugned order needs to be quashed and set-aside. 12. So far as modality of appointment after such litigation is concerned, following decisions may be relevant: "1. Manoj Manu & Anr. v. Union of India & Ors. Reported in (2013) 12 SCC 171 2. 12. So far as modality of appointment after such litigation is concerned, following decisions may be relevant: "1. Manoj Manu & Anr. v. Union of India & Ors. Reported in (2013) 12 SCC 171 2. Sasidhar Reddy Sura v. State of Andhra Pradesh reported in (2014) 2 SCC 158 3. Patel Rakeshkumar Dharamdas v. State of Gujarat in unreported judgment dated 26.07.2016 in Misc. Civil Application (For Review) No. 3397 of 2015 in Special Civil Application No. 1282 of 2011" 13. In view of above facts and circumstances, the impugned order dated 17.1.2008 is hereby quashed and set-aside. Thereby, respondents are directed to appoint the petitioner in lowest cadre i.e. in Class-IV within four months from the date of receipt of writ of this judgment. To that extent, the petition is allowed as prayed for. Rule is made absolute. Direct service is permitted.