Research › Search › Judgment

Gujarat High Court · body

2024 DIGILAW 1927 (GUJ)

SURESHBHAI SAGARBHAI RATHOD v. STATE OF GUJARAT

2024-10-16

VAIBHAVI D.NANAVATI

body2024
JUDGMENT : VAIBHAVI D. NANAVATI, J. 1. By way of present petition, the petitioner herein has challenged the impugned order dated 22.12.2009 duly produced at Annexure-A, whereby, the petitioner herein is compulsorily retired from the post of Junior Clerk in the Civil Hospital. 2. Heard Ms. Nimisha J. Parekh, learned advocate appearing for the petitioner and Ms. Pooja K. Ashar, learned advocate appearing for the respondents. 3. Brief facts leading to the filing of the present petition read thus: 3.1 The petitioner herein applied for appointment on compassionate ground upon expiry of the petitioner’s father during the service on 04.05.1996, who was working as a Ward Servant in the Civil Hospital. The first application made by the petitioner on 22.01.1997 came to be rejected on 16.08.1997 on the ground that the mother of the petitioner works with the department and the petitioner’s family income exceeds Rs.2000/-. The said order is duly produced at Annexure-B. 3.2 On 02.09.1997, the petitioner made second application seeking employment on compassionate ground pointing out that the petitioner was residing with his father and all the family members were dependent on the father and that, the family is in miserable condition. A ration card was placed on record pointing out the fact that the family members were residing with the father. 3.3 On 24.02.1997, the Chief Medical Officer intimated to the petitioner that the ration card for showing separate residence should be prior to the death of the father of the petitioner. The petitioner also submitted the copy of the earlier ration card. The respondent No. 2 recommended the case of the petitioner for employment on compassionate ground to the respondent No. 1-Department. The respondent No. 1, on 23.06.1998, granted sanction of the Government to the respondent No. 2 to appoint the petitioner on compassionate ground in Class-III. In view of the sanction granted by the respondent-State, on 11.07.1998, the respondent No. 2 compassionately appointed the petitioner as Junior Clerk in the Civil Hospital. 3.4 After a span of almost 7 years, the respondent No. 2 gave statement of accusation on 22.11.2004. The petitioner filed reply on 20.01.2005. On 02.02.2008, the respondent No. 2 decided to initiate departmental proceedings against the petitioner. Upon conducting such departmental proceedings, the deposition of the respondent No. 3 was also recorded. 3.4 After a span of almost 7 years, the respondent No. 2 gave statement of accusation on 22.11.2004. The petitioner filed reply on 20.01.2005. On 02.02.2008, the respondent No. 2 decided to initiate departmental proceedings against the petitioner. Upon conducting such departmental proceedings, the deposition of the respondent No. 3 was also recorded. The Inquiry Officer submitted report on 30.03.2009 and the said report states that cheating is not proved but the service having been given against the aim of the resolution, the statement of accusation stood partly proved. The petitioner replied for re-clarifying the final inquiry report but, the respondent No. 2 resorted the mode of departmental inquiry for the purpose of any how removing the petitioner from the job for some oblique personal purposes of the some interest persons. The impugned order dated 22.12.2009 came to be passed compulsory retiring the petitioner. 4. Ms. Nimisha J. Parekh, learned advocate appearing for the petitioner, submitted that the petitioner herein applied for appointment on compassionate ground disclosing true facts to the competent authority. Reliance is placed on the documents placed on record. It is submitted that the first application of the petitioner dated 22.01.1997 came to be rejected on the ground that the petitioner’s mother was working with the very same department and that, the petitioner’s family income exceeded to Rs.2000/- per month. It is submitted that the petitioner filed second application on 02.09.1997 which is duly produced at Page 24, along with a disclosure stating that the petitioner’s mother is working in one of the department of the Civil Hospital duly produced at Page 26. Reliance is placed on Ration Card details duly produced at Page 27, recommendations from the respondent No. 2 on 09.12.1997 at Page 28, sanction by the respondent-State dated 23.06.1998 duly produced at Page 30. It is submitted that thereupon, the petitioner came to be appointed on 11.07.1998. 4.1 Placing reliance on the aforesaid, it is submitted that the petitioner herein has disclosed true facts to the competent authority and is granted appointment. It is submitted that the petitioner’s mother was living separately even prior to the expiry of the petitioner’s father and the ration card details clearly state that the family comprises of the deceased father of the petitioner and other family members. It is submitted that the petitioner’s mother was living separately even prior to the expiry of the petitioner’s father and the ration card details clearly state that the family comprises of the deceased father of the petitioner and other family members. It is submitted that the inquiry report also holds that the petitioner cannot be held to be guilty of any misconduct however, the petitioner herein is not entitled to compassionate appointment placing reliance on the policy of 2000. It is submitted that as such the petitioner herein came to be appointed in the year 1997 and in view thereof, the petitioner would be governed by the policy of 1997 dated 16.12.1997 as revised from 14.08.1997 and that, the inquiry report is also erroneous having relied on the policy of 10.03.2000. Placing reliance on the aforesaid, it is submitted that the prayers, as prayed for, are such that the same are required to be granted. 5. Ms. Pooja K. Ashar, learned AGP appearing for the respondents, submitted that no interference is called for in the impugned order dated 22.12.2009 passed by the competent authority. Ms. Ashar, learned AGP, has also relied on the policy of 16.12.1991 as revised from 14.08.1997. In light of the aforesaid, it is submitted that the policy provides that income of all members of the family shall be taken into consideration for the compassionate appointment and that, the petitioner’s mother is already working in the Civil Hospital. Therefore, the petitioner herein would not be entitled to the benefit of compassionate appointment. It is submitted that at the present, the petitioner must be aged 54 years. It is submitted that any order passed in favour of the petitioner, would be dehors the policy governing the petitioner. Analysis: 6. Having heard the learned advocates appearing for the respective parties, undisputed facts that emerge read thus: 6.1 The petitioner’s father was working as a Ward Servant in the Civil Hospital and expired on 04.05.1996 during the course of service. The petitioner applied for compassionate appointment on 22.01.1997. The said application came to be rejected by communication dated 16.08.1997 on the ground that the petitioner’s mother works with the department and in view thereof, the petitioner’s monthly family income exceeds Rs. 2000/- duly produced at Annexure-B. 6.2 The petitioner made a second application dated 02.09.1997 duly produced at Page 24. The petitioner applied for compassionate appointment on 22.01.1997. The said application came to be rejected by communication dated 16.08.1997 on the ground that the petitioner’s mother works with the department and in view thereof, the petitioner’s monthly family income exceeds Rs. 2000/- duly produced at Annexure-B. 6.2 The petitioner made a second application dated 02.09.1997 duly produced at Page 24. The said application is duly attached with a disclosure that the petitioner’s mother is working in the Civil Hospital however, she does not reside with the petitioner and his family. To substantiate the aforesaid, the petitioner placed on record the ration card details. 7. Upon perusal of details which are duly produced at Page 59 by the respondent authorities along with affidavit, it emerges that considering the same also, the members in the family does not include the petitioner’s mother at Page 60. 8. The respondent No. 2 herein by communication dated 09.12.1997 sent a proposal for appointment of the petitioner to the respondent No. 1. The respondent No. 1 accorded sanction on 23.06.1998 wherein, it is stated that as Mr. Sagarbhai Rahod, performing duty as Ward Servant at Civil Hospital, Ahmedabad under the control of the Additional Director, Medical Education and Research, Gandhinagar, died during service, orders have been passed to carry out procedure of recruitment as per rules for giving appointment in the Class-III post to Mr. Suresh Sagarbhai Rathod, dependent of the deceased. Relaxation is given therein and approval is hereby granted by the government to give appointment on the Class-3 post. It is apposite to refer to the said sanction dated 23.06.1998 which reads thus: (true translation) “No. CHA-1097-2798(98) Health and Family Welfare Department Sachivalay, Gandhinagar, Dated: 23.6.1998 Subject: Compassionate Appointment of Mr. Suresh Sagarbhai Rathod - dependent of deceased Government Servant. Yadi: With regard to letter No. D-4/Compassionate/Service/Suresh Rathod/C/97 dated 09/12/97 of the Additional Director, Medical Education and Research, Gandhinagar, it is stated that as Mr. Sagarbhai Rahod, performing duty as Ward Servant at Civil Hospital, Ahmedabad under the control of the Additional Director, Medical Education and Research, Gandhinagar, died during service, orders have been passed to carry out procedure of recruitment as per rules for giving appointment in the Class-3 post to Mr. Suresh Sagarbhai Rathod, dependent of the deceased. Relaxation is given therein and approval is hereby granted by the government to give appointment on the Class-3 post. Suresh Sagarbhai Rathod, dependent of the deceased. Relaxation is given therein and approval is hereby granted by the government to give appointment on the Class-3 post. These orders are issued as per the authority vested in the Secretary of the Department as per circulated No. Bharat-1084-355-K, dated 01/03/88 of the General Administration Department, Circular No. IMP-1077-68361-M, dated 17/9/77 of the Social Welfare and Tribal Development Department and demi-official circular No. Bharat-1087- Bha.S.-7-K dated 4/11/89 of the General Administration Department issued by the Government from time to time. By order and in the name of the Governor of Gujarat. Sd/- Illegible Section Officer Health and Family Welfare Department” 9. The entire procedure having been undertaken by the respondent-State and having accorded the sanction, after more than 7 years, the petitioner herein is put to the rigors of departmental inquiry and upon completion thereof, the petitioner herein is ordered to be compulsorily retire. Upon perusal of the inquiry report which is duly produced at Page 43, it emerges that the Inquiry Officer has also opined that the petitioner cannot be said to have committed any misconduct however, the petitioner is not entitled to the appointment on compassionate ground relying on the Policy of 10.03.2000. 10. Considering the aforesaid also, it emerges that the petitioner herein is governed by the Policy of 16.12.1991 duly revised from 14.08.1997. The Inquiry Officer has erroneously relied on the Policy of 2000 which is not applicable in the case of the present petitioner. Further, taking the case of the respondent authorities as it is, the respondent authority itself has sanctioned the appointment of the petitioner relaxing the relevant rules and regulations. It is now not open for the respondent authorities to compulsorily retire the petitioner on the ground that the petitioner’s appointment is not in accordance with the prevailing policy. Upon perusal of record, the undisputed facts emerge that the petitioner herein has disclosed true facts in both the applications more particularly, in the second application dated 02.09.1997 and the petitioner herein is granted the appointment on 11.07.1998. 11. At this stage, it is apposite to refer to the ratio laid down by the Hon’ble Apex Court in case of M/s. Radha Krishan Industries vs. State of Himachal Pradesh, AIR 2021 SC 2114 . Paragraph 27 of the said decision reads thus: “27. 11. At this stage, it is apposite to refer to the ratio laid down by the Hon’ble Apex Court in case of M/s. Radha Krishan Industries vs. State of Himachal Pradesh, AIR 2021 SC 2114 . Paragraph 27 of the said decision reads thus: “27. The principles of law which emerge are that: (i) The power under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well. (ii) The High Court has the discretion not to entertain a writ petition. One of the restrictions placed on the power of the High Court is where an effective alternate remedy is available to the aggrieved person. (iii) Exceptions to the rule of alternate remedy arise where (a) the writ petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution; (b) there has been a violation of the principles of natural justice; (c) the order or proceedings are wholly without jurisdiction; or (d) the vires of a legislation is challenged. (iv) An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by law. (v) When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion. (vi) In cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with.” 11.1 In light of the aforesaid position of law and in the facts of the present case, in exercise of extra ordinary powers under Article 226 of the Constitution of India, the impugned order dated 22.12.2009 compulsorily retiring the petitioner from the post of Junior Clerk, is quashed and set aside. Accordingly, the consequential benefits that arise is directed to be paid to the petitioner herein considering the period of service that the petitioner has rendered. 12. The present petition is allowed. Rule is made absolute.