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2019 DIGILAW 1091 (GUJ)

Naimish Rajendrakumar Joshi v. State of Gujarat

2019-11-28

A.S.SUPEHIA

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JUDGMENT : A.S. Supehia, J. 1. The present writ petition has been filed, inter alia, for following the relief: "This Hon'ble Court be pleased to issue an order, writ in the nature of mandamus and/or Certiorari or other appropriate writ, order or direction, declaring the impugned decision of the respondents dated. 31.05.2008 and 19.06.2008 rejecting the application of the petitioner for compassionate appointment is held to be arbitrary, illegal, unjust and contrary to the law of required to be quashed and set aside." 2. The brief facts of the case are as under: 2.1 It is the case of the petitioner that mother of the petitioner i.e. Bhartiben Hemshankerbhai Joshi (Bhartiben Rajendrakumar Joshi) was working under respondent No. 2 in Health Department at ICDS Branch as permanent employee on the post of Junior Clerk. The mother of petitioner has passed away on 27.06.1992 due to accidental fire. At that time, the petitioner was aged about three (3) years. The date of birth of the petitioner is 31.01.1989. After the death of the mother of the petitioner, the respondents had fixed the amount of pension in favour of the father of the petitioner and till date it is continued. Thereafter, when the petitioner became major, he had immediately made an application dated 22.01.2008 for the compassionate appointment. The application of the petitioner was forwarded to the respondent No. 1. Thereafter, the respondent No. 1 had replied to the petitioner vide letter dated 31.05.2008 rejecting his application on the sole ground that his mother had not completed five (5) years of service and therefore, considering the Government Resolution dated 10.03.2000, he is not entitled and eligible to get compassionate appointment. The said decision of the respondent No. 1 was communicated to the petitioner by the respondent No. 2 vide the letter dated 19.06.2008. 2.2 It is the case of the petitioner that the respondent authorities have considered the case of the petitioner as per the Government Resolution dated 10.03.2000 instead of considering the Government Resolution dated 04.09.1992, though his mother has passed away in the year of 1992 and at that time Government Resolution dated 04.09.1992 was in existence. 2.2 It is the case of the petitioner that the respondent authorities have considered the case of the petitioner as per the Government Resolution dated 10.03.2000 instead of considering the Government Resolution dated 04.09.1992, though his mother has passed away in the year of 1992 and at that time Government Resolution dated 04.09.1992 was in existence. The petitioner had made an application on 17.10.2013 to the respondents, which was replied by the respondent No. 1 on 12.11.2013, wherein the same reply was reiterated that the mother of the petitioner had not served for five (5) years and therefore, he is not entitled to get appointment. Thereafter, the respondent No. 2 had also replied on 02/03.12.2013 stating that there is no provision to reconsider the application of the petitioner and as per the new Government Resolution dated 05.07.2011, no compassionate appointment can be given but ex-gatia payment is to be granted however, in the case of the petitioner, he is not entitled to get ex-gatia payment because his mother had not completed five (5) years service with the Government. Before approaching this court, the petitioner had served a legal notice on 31.12.2013 by RPAD through an advocate to the respondents along with relevant Government Resolution dated 04.09.1992, which was received by the respondent. The respondent No. 1 had given reply to the advocate on 22.01.2014, wherein the same reply was given as stated herein above and not even examined the earlier Government Resolution. Thereafter, respondent No. 2 had written a letter on 17.02.2014 to the Deputy Secretary, Panchayat Rural Development, Gandhinagar and requested to the respondent No. 1 to look into the matter as the power for granting the compassionate appointment lies with them. Copy of the said letter was also served to the concerned advocate. 3. Learned advocate Mr. Mukesh Rathod for the petitioner has submitted that the applicable policy to the petitioner is of 04.09.1992, whereas this case has been rejected, as per the impugned communication, on the basis of the policy dated 10.03.2000, which is not permissible. He has submitted that the petitioner, when became a major, made the application for his compassionate appointment but the same is not considered by the respondent authorities as per the provisions of the Government Resolution dated 10.03.2000. He has submitted that the petitioner, when became a major, made the application for his compassionate appointment but the same is not considered by the respondent authorities as per the provisions of the Government Resolution dated 10.03.2000. It is submitted that considering the paragraph No. 1 of the Government Resolution dated 04.09.1992, if Government Employee, who is regularly appointed or Government Employees, who have served for minimum five (5) years on work-charge status, dies during the course of employment, one of their dependents will be entitled to get an appointment on the compassionate ground. It is further mentioned that this Resolution is applicable to the Government Employee, who died after 01.12.1991. Thus, he has submitted that the respondents may be directed to consider his case as per the Government Resolution dated 04.09.1992. 4. Per contra, learned Assistant Government Pleader Mr. Ishan Joshi has submitted that the writ petition is required to be dismissed on the ground of delay since the same is filed after eight (8) years challenging the orders dated 31.05.2008 and 19.06.2008. He has placed reliance on the decisions of the Apex Court in the cases of State Bank of India & Ors. Vs. Aspal Kaur, 2007(9) SCC 571 and State of Maharashtra Vs. Digamber, AIR 1995 SC 1991 and in the case of Maniben Vs. Municipal Corporation, 2012(5) SCC 157 . He has submitted that the mother of the petitioner has passed away on 27.06.1992 and today, more than 30 years have passed, and the family of the petitioner has survived all these years. 4.1 Learned AGP has further submitted that even if the Government Resolution of 1992 is made applicable to the case of the petitioner, then also he is not entitled to compassionate appointment since the aforesaid Government Resolution does not provide that after becoming major the dependents are entitled for the compassionate appointment. It is submitted that the compassionate appointment is not a reservation and the post cannot be filled-in by way of compassionate appointment after all these years. Learned AGP has submitted that at the time of the death of the mother of the petitioner, the petitioner was three (3) years old and no appointment can be made on compassionate ground after passage of so many years. Learned AGP has submitted that at the time of the death of the mother of the petitioner, the petitioner was three (3) years old and no appointment can be made on compassionate ground after passage of so many years. It is also submitted that meanwhile the policy of compassionate appointment is also abolished and the same is replaced by the policy of compensation in the year 2011. Thus, he has submitted that the writ petition may be dismissed. 5. I have heard the learned advocates for the respective parties. 6. It is not in dispute that the mother of the petitioner has passed away on 27.06.1992 and today, almost period of 30 years have passed. The impugned communications are of the year 2008 and the writ petition has been filed in the year of 2016. 7. It is also not in dispute that at the time of death of mother, the petitioner was three (3) years old. Even assuming that the case of the petitioner is governed by the Government Resolution dated 04.09.1992, a perusal of the same reveals that it is bereft of any clause which enables a minor to apply for the compassionate appointment after he becomes major after so many years. 8. At this stage, it would be apposite to refer to the decision of the Apex Court in the case of Local Administration Department & Anr. Vs. M. Selvanayagam, 2011(13) SCC 42 . The Apex Court, while examining the issue of the compassionate appointment has observed thus: "11. It has been said a number of times earlier but it needs to be recalled here that under the scheme of compassionate appointment, in case of an employee dying-in-harness one of his eligible dependents is given a job with the sole objective to provide immediate succour to the family which may suddenly find itself in dire straits as a result of the death of the bread winner. An appointment made many years after the death of the employee or without due consideration of the financial resources available to his/her dependents and the financial deprivation caused to the dependents as a result of his death, simply because the claimant happened to be one of the dependents of the deceased-employee would be directly in conflict with Articles 14 and 16 of the Constitution and hence, quite bad and illegal. In dealing with cases of compassionate appointment, it is imperative to keep this vital aspect in mind. 12. Ideally, the appointment on compassionate basis should be made without any loss of time but having regard to the delays in the administrative process and several other relevant factors such as the number of already pending claims under the scheme and availability of vacancies etc. normally the appointment may come after several months or even after two to three years. It is not our intent, nor it is possible to lay down a rigid time limit within which appointment on compassionate grounds must be made but what needs to be emphasised is that such an appointment must have some bearing on the object of the scheme. 13. In this case the respondent was only 11 years old at the time of the death of his father. The first application for his appointment was made on July 2, 1993, even while he was a minor. Another application was made on his behalf on attaining majority after 7 years and 6 months of his father's death. In such a case, the appointment cannot be said to subserve the basic object and purpose of the scheme. It would rather appear that on attaining majority he staked his claim on the basis that his father was an employee of the Municipality and he had died while in service." 9. Thus, the Apex Court has specifically held that appointment of compassionate should be made without any loss of time. It is further held that compassionate appointment has to be provided with the sole objective to provide immediate succour to the family which may suddenly find itself in dire straits as a result of the death of the bread winner. An appointment made many years after the death of the employee or without due consideration of the financial resources available to his/her dependents. Further it is held that such an appointment cannot be granted to the dependent simply because the claimant happened to be one of the dependents of the deceased-employee and such appointment would be directly in conflict with Articles 14 and 16 of the Constitution and hence, quite bad and illegal. It is further held that in dealing with cases of compassionate appointment, it is imperative to keep this vital aspect in mind. 10. It is further held that in dealing with cases of compassionate appointment, it is imperative to keep this vital aspect in mind. 10. In the case before the Apex Court, the dependent was only 11 years old at the time of the death of the employee and the first application was made for the compassionate appointment on 02.07.1993 when the dependent was minor and another application was made after attaining the age of majority, after 7 years and 6 months of death of employee. In the present case, no application was made by the petitioner, when he was minor and the same is made after passage of almost 25 years. 11. In a recent judgment in the case of Punjab State Power Corporation Ltd. Vs. Nirval Singh, 2019 (6) SCC 774 , Apex Court has observed thus: "8. The first is the delay in approaching the courts for redressal after a period of 7 years even if he is making representations. The very objective of providing immediate amelioration to the family is extinguished. The second is that the earlier policy having been abolished and the new policy having coming into force, the application has been considered under the new policy and the options available were offered to the respondent who failed to avail of the same." 12. In the present case, the petitioner has continued has continued to make the representation even after his case was rejected. It is pertinent to note that the writ petition has been filed challenging the impugned orders dated 31.05.2008 and 19.06.2008, i.e. after a period of eight (8) years. After the case of the petitioner was rejected in 2008, the petitioner filed a representation dated 17.10.2013. Meanwhile, the policy of compassionate appointment has been abolished and the same is replaced by the policy of compensation. Merely, because the authorities have responded to the belated representations of the petitioner; the same will not give rise to a fresh cause of action and the earlier orders/communications rejecting the case of the petitioner do not get nullified. Before responding to such representations, the authorities should have exercised great restraint since such response resurrects the dead cause, and gives rise to an excuse for pursuing the cause, which has been extinguished by earlier orders resulting to an unnecessary litigation. Before responding to such representations, the authorities should have exercised great restraint since such response resurrects the dead cause, and gives rise to an excuse for pursuing the cause, which has been extinguished by earlier orders resulting to an unnecessary litigation. Making of repeated representations does not wipe out the delay, but a response from the authorities triggers the cause of further litigation. Hence, before responding to the belated representations, the authorities have to be conscious of the fact that such response may not revive a cause, which has become final or has become redundant after passage of time. 13. In this view of the matter and in light of the observations made by the Apex Court, the writ petition is held to be absolutely misconceived. The same is dismissed. Rule is discharged.