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2018 DIGILAW 1103 (GUJ)

State of Gujarat v. Mehulbhai Lavjibhai Jadav

2018-09-19

A.S.SUPEHIA, HARSHA DEVANI

body2018
JUDGMENT A.S. Supehia, J. Being aggrieved and dissatisfied by the judgment and order dated 20.01.2016 passed by the learned Single Judge in Special Civil Application No.7610 of 2015, the appellants herein - original respondent nos.1 and 2 have preferred the present Letters Patent Appeal. 2. The brief facts leading to filing of the present appeal are as under: That the father of the present respondent-original petitioner passed away on 05.11.1992. No application for compassionate appointment was made by the wife of the deceased (mother of the present respondent). After the respondent attained majority, an application was made and the same was rejected vide order dated 15.10.2010 on the ground of limitation of filing the application. 3. Mr.Utkarsh Sharma, learned Assistant Government Pleader for the appellants State has submitted that the impugned judgment passed by the learned Single Judge is not in accordance with the prevailing policy, which was prevalent at the relevant time when the father of the respondent died. He has submitted that the policy dated 16.12.1991 would be applicable in the case of the respondent, which states that even in case of an uneducated spouse of the deceased and there being no major member, compassionate appointment application is to be made within a period of six months by a minor from the date of attaining majority. In the present case, the date of birth of respondent is 03.06.1991, and he made the application of compassionate appointment beyond the prescribed period of six months i.e. on 24.05.2010 after becoming major. He submitted that the learned Single Judge has fell in error in issuing directions to the appellants for granting compensation instead of compassionate appointment though the same is not prayed by the respondent (original petitioner) in his petition. Learned Assistant Government Pleader has submitted that the scheme of compensation, which was introduced vide Government Resolution dated 05.07.2011 will not apply in the case of the present respondent. 3.1 Learned Assistant Government Pleader has submitted that in fact, the subsequent policy after 1991 i.e. 26.02.1997, clearly indicates that some member of the deceased is to make an application and it is not required to wait for minor member becoming major. 3.1 Learned Assistant Government Pleader has submitted that in fact, the subsequent policy after 1991 i.e. 26.02.1997, clearly indicates that some member of the deceased is to make an application and it is not required to wait for minor member becoming major. In this regard, the learned Single Judge ought to have appreciated that the wife of the deceased (mother of the respondent) ought to have applied after the death of her husband or the elder sisters as and when they become major should have applied for compassionate appointment. 3.2 The learned Assistant Government Pleader has submitted that the learned Single Judge has relied upon the observation of Letters Patent Appeal no.2785 of 2010 since the same deal with the policy of 10.03.2000. 3.3 The learned Assistant Government Pleader has further submitted that there is a delay in challenging the impugned letter/order dated 15.10.2010, as the respondent has challenged the same by filing a writ petition after delay of 05 years i.e. in the year 2015. Hence, the petition could not have been entertained. Thus, the learned Assistant Government Pleader has submitted that the learned Single Judge has erred in not considering the aforesaid aspects. 4. A fortiori Mr. Jigar Dave, learned advocate for the respondent has submitted that the judgment and order passed by the learned Single Judge does not require any interference since the same is based on well settled principles of law. He has submitted that the learned Assistant Government Pleader appearing before the learned Single Judge had relied on the policy decision dated 10.03.2000 and on that basis, the learned Single Judge has passed the judgment in the favour of the respondent. He has further submitted that the policy dated 16.12.1991 is further amended in the year 1997 and as per the said policy, the heir of the deceased-employee has to apply within a period of two years from the date of death of such employee. In the present case, as the respondent has applied within a period of two years, his case would be governed by the policy dated 26.02.1997. He has submitted that the said policy applied retrospectively from 16.12.1991 i.e. the date of earlier policy. Hence, the present case would be governed by the said policy. In the present case, as the respondent has applied within a period of two years, his case would be governed by the policy dated 26.02.1997. He has submitted that the said policy applied retrospectively from 16.12.1991 i.e. the date of earlier policy. Hence, the present case would be governed by the said policy. 4.1 The learned advocate for the respondent has submitted that in the present case, the case of the respondent for compassionate appointment is rejected, then also, as rightly observed by the learned Single Judge, the respondent is entitled for compensation. In support of his submissions, the learned advocate for the respondent has placed reliance on the following decisions: (a). Order dated 14.12.2010, passed by this court in Letters Patent Appeal No.2615 of 2010; (b). Order dated 16.06.2016, passed by this court in Letters Patent Appeal No.475 of 2016; (c). Judgment and order dated 09.03.2011 passed by this court in Letters Patent Appeal No.2785 of 2010; (d). Order dated 26.12.2016 passed by this court in Special Civil Application No.17961 of 2016. 4.2 Learned advocate for the respondent has submitted that all the aforesaid judgment and orders deal with the identical facts and thus, the case of the respondent squarely covered in the aforesaid judgment and orders and hence, the impugned order dated 15.10.2010 is rightly quashed and set aside by the learned Single Judge. He has submitted that no illegality or infirmity can be said to have been committed by the learned Single Judge in granting compensation to the respondent. Thus, he has submitted that present appeal may be dismissed. 4.3 Lastly, learned advocate appearing on behalf of respondent has submitted that, as observed by the Division Bench of this court in the judgment and order dated 14.12.2010 passed in Letters Patent Appeal No.2615 of 2010, the application of the appellant should have been kept pending by the respondent authorities since the present appellant was minor. He has submitted that as per the aforesaid judgment, the appellant authorities should have decided the application after the respondent attained the age of majority and accordingly, he should have been granted either compassionate appointment or compensation. 5. We have heard the learned advocates for the respective parties and perused the policy governing the present issue. 6. He has submitted that as per the aforesaid judgment, the appellant authorities should have decided the application after the respondent attained the age of majority and accordingly, he should have been granted either compassionate appointment or compensation. 5. We have heard the learned advocates for the respective parties and perused the policy governing the present issue. 6. The following are the established facts in the present : (a) The father of the respondent, who was serving as Police Constable had passed away on 05.11.1992 while in service. At the time of his death, his family consist his wife, two daughters and one minor son i.e. present respondent, who was aged about one year at that point of time. It is not denied by the respondent that he is having two elder sisters. Neither the mother nor the elder sisters of the respondent applied for compassionate appointment; (b) The date of birth of the respondent is 03.06.1991 and he became major on 03.06.2009. He was one year of age when his father passed away; (c) He made an application for compassionate appointment on 24.05.2010; (d) At the time of the death of the father of the respondent, the policy dated 16.12.1991 was applicable. The same was subsequently modified by policy dated 26.02.1997; (e) Thereafter, the State Government introduced fresh policy governing compassionate appointment on 10.3.2000; (f) The scheme of compassionate appointment is abolished vide policy dated 05.07.2011 by introducing scheme of compensation; (g) The impugned order rejecting the case of the respondent for compassionate appointment is passed on 15.10.2010. (h) The writ petition challenging the same is filed in 2015; (i) Except the policy dated 16.12.1991 no policy is brought on record. Paragraph (3) of the policy dated 16.12.1991 provides that the limitation for making an application for compassionate appointment has been reduced to two years from five years, and if any relaxation is to be granted in the same, then the same can be done only after approval of the General Administration Department. It also specifically states that any minor, who is dependent of deceased-employee, can make an application for compassionate appointment within a period of 6 months after he attains majority. In the present case, the respondent became major on 03.06.2009 and he made an application for compassionate appointment on 24.05.2010 after a period of 11 months. It also specifically states that any minor, who is dependent of deceased-employee, can make an application for compassionate appointment within a period of 6 months after he attains majority. In the present case, the respondent became major on 03.06.2009 and he made an application for compassionate appointment on 24.05.2010 after a period of 11 months. Thus, the application of the respondent was well beyond the limitation of six months as provided in the application. 7. The impugned letter/order dated 15.10.2010 though refers to some letters written by the Director General of Police, Gandhinagar, dated 20.02.2010 in which it is stated that the application has to be made for compassionate appointment within a period of six months, and since the respondent did not attained the majority and he did not apply within the aforesaid limitation period, his proposal for compassionate appointment is rejected; the non-reference/mentioning of the policy dated 16.12.1991, which also provides limitation of six months, cannot come to the rescue of the respondent. Thus, the application of the respondent was well beyond the limitation period, as prescribed in the policy dated 16.12.1991 and the same could not have been considered for grant of compassionate appointment. As a consequence, the respondent herein would not be entitled for any compensation, as envisaged in the subsequent policy of compensation. 8. The learned Single Judge has placed reliance on the policy dated 10.03.2000 while examining the case of the respondent. The memo of the writ petition shows that the respondent-original petitioner has placed reliance on the said resolution in support of his pleadings as well in the facts, which, in our considered opinion, was erroneous. In the considered opinion of this court, the aforesaid policy dated 10.03.2000 cannot apply in the case of the respondent since his case was unquestionably governed by the policy dated 16.12.1991. 9. Reliance placed by learned advocate Mr. Dave on policy dated 26.02.1997 is also misconceived since the proposal of the said policy clarifies that if any legal heir of the deceased-employee, who is major at the time of death of deceased-employee can apply for the compassionate appointment within a period of five years or after approval of the General Administration Department; any minor can apply for the same within a period of two years after attaining the age of majority. As observed in the preceding paragraphs, in the present case, there were two elder sisters to the respondent who did not apply for compassionate appointment and as per the policy it is not required to wait for a minor member - to become major. At that relevant point of time, the respondent was minor and aged about one year; he waited for 18 years for making an application for compassionate appointment. It deserves to be noted that though the application of the respondent was rejected in the year 2010, the writ petition was filed in the year 2015. This shows that the family of the deceased-employee had survived for all these years and they cannot be said to be in pitiable condition. 10. So far as the reliance placed by the learned advocate for the respondent on various judgment and orders, it deserves to be noted that the same deal with the policy dated 10.03.2000 and not the policy dated 16.12.1991 which is applicable in the respondent. 11. The learned advocate for the respondent has relied upon the judgment and order dated 14.12.2010, passed by the Division Bench of this court in Letters Patent Appeal No.2615 of 2010 for the proposition of law that the respondent had to wait till the applicant attains the majority. The said contention does not merit acceptance since in the said case, the legal heir of the deceased-employee had already made application for compassionate appointment within a period of six months after the death of his father, who died on 21.06.2005. In that case, the applicant was minor and was of 17 years of age, whereas in the present case, the respondent did not make any application and his father died. Neither his elder sisters nor his mother had made any application at the relevant time when his father passed away. Neither of the schemes governing compassionate appointment prohibit the mother or the elder sister from applying compassionate appointment. The compassionate appointment is not a reservation which can be reserved for the son of the deceased employee for years (in the present case 17 years), and the same is to be offered to him as an when he becomes major irrespective of passing of the period of more than a decade. The compassionate appointment is not a reservation which can be reserved for the son of the deceased employee for years (in the present case 17 years), and the same is to be offered to him as an when he becomes major irrespective of passing of the period of more than a decade. If the mother fulfills the eligibility criteria of the posts, she has to first apply or the authorities have to first offer her the compassionate appointment. If the mother does not fulfill the criteria then the other elder member whether daughter or son has to be offered. Thus, the aforesaid judgment would not apply in the present case, as the facts on which the aforesaid judgment was passed are entirely different from the facts in the present case. 12. Finally, the learned Single Judge while issuing the concluding directions has directed the appellant authorities to pay the amount of compensation to the family members of the deceased-employee. It is pertinent to note that the policy of compensation dated 05.07.2011 was not placed on record of the writ petition. The impugned decision of the learned Single Judge does not reflect that the respondent has established any claim for compensation before the learned Single Judge. No submissions seem to have been made before the court. No prayer is incorporated in the writ petition and hence, in absence of any such prayer or submissions, no direction could have been issued to the appellant authorities to grant compensation in lieu of compassionate appointment. The learned Single Judge has not examined the eligibility of the respondent apropos the policy of compensation. Thus, the impugned order of the learned Single Judge suffers from legal infirmity; hence, the same is liable to be set aside. 13. On the bedrock of the foregoing analysis and observations, the present appeal succeeds and is allowed. The impugned judgment and order of the learned single judge is set aside.