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2024 DIGILAW 435 (GUJ)

Maulik Bharatbhai Mandir v. State of Gujarat

2024-03-04

NIKHIL S.KARIEL

body2024
JUDGMENT : 1. Heard learned Advocate Mr.Anand Gogia for the petitioner and learned AGP Ms.Nidhi Vyas for the respondent State. 2. Issue Rule returnable forthwith. Learned AGP waives service of Rule for the respondent State. 3. By way of this petition, the petitioner has sought the following main prayers :- “15.A. Your Lordship may be pleased to admit and allow this petition; B. Your Lordship may be pleased to issue writ of appropriate nature, direction and orders setting aside the impugned order No.Aaraa. ja-102006-1661-Chh(d) dated 10.4.2019 which is annexed at Annexure-A and the respondent Authorities may please be directed to issue and release appointment order to petitioner on suitable post with the retrospective effect i.e. date of application for appointment along with all consequential benefits of pension, service, seniority, pay fixation, arrears etc. C. Your Lordships may be pleased to direct the respondent Authorities to offer to the petitioner the appointment on any suitable Class-III post-”C” group.” 4. It is the case of the petitioner that his late father was working as an Education Inspector in the Mid-day Meal Scheme with the respondent No.2 herein and whereas he had unfortunately expired on 23.3.2006. It is also the case of the petitioner that the petitioner, as son of the deceased employee, who had died in harness, had made an application for being appointed on compassionate ground as a Class-IV employee on 19.6.2006, since he was not having adequate qualification as required for being appointed on Class-III post. It appears that vide an order dated 7.10.2006, the respondent State had rejected the request of the respondent No.2 for appointing the petitioner on compassionate ground. It appears that the petitioner did not challenge the order at the relevant point of time and more particularly since the order inter alia states that the case of the petitioner could not be considered as the petitioner did not have the qualification of SSC Pass. 4.1. It appears that the petitioner had thereafter acquired the qualification of SSC and had again made an application for being appointed on compassionate ground and whereas vide communication dated 19.9.2009, respondent No.2 had rejected the request of the present petitioner for grant of compassionate appointment. 4.1. It appears that the petitioner had thereafter acquired the qualification of SSC and had again made an application for being appointed on compassionate ground and whereas vide communication dated 19.9.2009, respondent No.2 had rejected the request of the present petitioner for grant of compassionate appointment. It appears that the petitioner had challenged both the orders before this Court i.e. orders dated 7.10.2006 and 19.9.2009 by preferring writ petition being SCA No.2927 of 2002 and whereas a learned Coordinate Bench vide order dated 16.7.2012 had been pleased to reject the said writ petition on the ground of delay. 4.2. It appears that the petitioner had challenged the said decision by preferring Letters Patent Appeal No.1086 of 2012 and whereas Hon’ble Division Bench of this Court vide an order dated 11.2.2019 had quashed and set aside the decision of the learned Coordinate Bench dated 16.7.2012 as well as the impugned orders dated 7.10.2006 and 19.9.2009 and had directed the respondents to reconsider the case of the petitioner as per the extant Rules prevailing at the relevant point of time. It appears that the case of the petitioner had been considered by the respondent State i.e. respondent No.1 herein and vide an order dated 10.4.2019, the respondents had rejected the case of the petitioner, more particularly on the ground that as per the policy of the State Government i.e. the Policy of the GAD dated 16.3.2005, passing of SSC was a requisite educational qualification for being appointed to a Class-IV post, which the petitioner did not have at the relevant point of time and hence, the application was rejected. Being aggrieved by the said impugned order, the present petition is preferred. 5. Learned Advocate Mr.Gogia for the petitioner would submit that the respondents have committed a gross error of passing the order dated 10.4.2019, more particularly according to learned Advocate Mr.Gogia, the said order is completely contrary and in teeth of the directions of the Hon’ble Division Bench of this Court in LPA No.1086 of 2012. Learned Advocate Mr.Gogia would, therefore, request this Court to direct the respondents to forthwith appoint the petitioner on compassionate ground and to grant all consequential benefits arising from the said appointment. 6. This petition is vehemently objected to by the learned AGP Ms.Vyas for the respondent State. Learned Advocate Mr.Gogia would, therefore, request this Court to direct the respondents to forthwith appoint the petitioner on compassionate ground and to grant all consequential benefits arising from the said appointment. 6. This petition is vehemently objected to by the learned AGP Ms.Vyas for the respondent State. Learned AGP Ms.Vyas, at the outset, would submit that the late father of the petitioner had expired in the year 2006 and whereas the present petition has been preferred in the year 2019. Learned AGP would submit that while the petitioner had preferred writ petition and LPA in the interregnum, but the fact remains that the present petition is seeking for compassionate appointment as a matter of right. Learned AGP would submit that such a position has not been countenanced by the Hon’ble Supreme Court as well as this Court in a number of judgements and whereas the law, according to learned AGP, is well settled on the issue that compassionate appointment is not one of the regular recognized mode of appointment. 6.1. Learned AGP would further draw the attention of this Court to a Notification dated 16.3.2005 by the General Administration Department of the State Government, whereby it has been laid down that for appointment by direct selection for a Class-IV post, minimum requirement would be an SSC Certificate. Learned AGP would in this regard draw the attention of this Court to the relevant directions of the Division Bench in LPA No.1086 of 2012. It is submitted by learned AGP Ms.Vyas that after quashing of the order impugned before the Division Bench, the Division Bench had directed the respondents i.e. the State Government to consider the case of the petitioner on basis of Rules prevailing on 23.3.2006 i.e. the date of demise of late father of the petitioner and on 19.6.2006 i.e. the date on which the petitioner had first preferred an application and whereas based upon the said policy the respondents were required to take a decision. Learned AGP would submit that since the State vide Notification dated 16.3.2005 had inter alia envisaged that the eligibility of SCC passed would be a requisite eligibility, therefore, the respondents had not committed any error whatsoever in rejecting the case of the petitioner for compassionate appointment, more particularly the impugned order dated 10.4.2019 also reflecting that the respondents had relied upon the Notification dated 16.3.2005. Thus submitting, learned AGP would request that this Court may not entertain the present petition and may reject the same. 7. Heard learned Advocates for the respective parties and perused the documents on record. 8. At the outset, as regards the contention raised by learned AGP about the compassionate appointment not being a legal right of the legal heirs of an employee and compassionate appointment not being a source of recruitment, the law on the issue as submitted by learned AGP, is too well settled for any discussion on the issue. Yet having said so, it would be apposite to mention that the petitioner is seeking implementation of a policy of the State, which was in existence at the time of the demise of the father of the petitioner and whereas it would also appear that insofar as the present petition is concerned, the order impugned is passed as per the direction of a Division Bench of this Court in the first round of litigation. Thus, it would appear that while the substantive prayer of the petitioner is for grant of compassionate appointment, yet the prayer sought for in the present petition is for setting aside of the impugned order dated 10.4.2019, which violates the right of the petitioner, more particularly as flowing from a Government Resolution, which envisages grant of compassionate appointment to the family members of the employees, who expire in harness. 9. Insofar as the issue of delay as contended by learned AGP is concerned, the same is not now open for the State to contend. It requires to be noted here that while the petitioner had approached this Court originally by preferring SCA No.2927 of 2012, more particularly challenging the orders dated 7.10.2006 and 19.9.2009, at the first instance, the Coordinate Bench of this Court vide an order dated 16.7.2012 had rejected the petition on the ground of delay. As against the same, while the petitioner had preferred LPA No.1086 of 2012 and the Hon’ble Division Bench vide an order dated 11.2.2019 had set aside the order passed by the learned Coordinate Bench as well as the orders dated 7.10.2006 and 19.9.2009. As against the same, while the petitioner had preferred LPA No.1086 of 2012 and the Hon’ble Division Bench vide an order dated 11.2.2019 had set aside the order passed by the learned Coordinate Bench as well as the orders dated 7.10.2006 and 19.9.2009. The aspect of delay having been considered by the Division Bench and having not been accepted and whereas the State not having challenged the said decision of the Division Bench before the Hon’ble Apex Court, would dis-entitle, in the considered opinion of this Court, the State from re-agitating the issue of delay. Insofar as the substantive issue is concerned, it would be apposite to reproduce paragraph 6.1 of the decision of the Hon’ble Division Bench dated 11.2.2019 in LPA No.1086 of 2012, more particularly since the said sub-paragraph contains the direction laying down the terms whereby the case of the petitioner was to be considered by the respondents :- “6.1 The judgement and order dated 16.7.2012 passed by the learned Single Judge and orders dated 7.10.2006 and 19.9.2009 passed by the competent authority are hereby quashed and set aside. The respondent shall consider the case of the appellant on the basis of the rules prevailing on 23.3.2006 and application made on 19.6.2006 and grant him the benefit of compassionate appointment, if he found eligible as per the prevailing policy. The entire exercise is to be completed and order be issued if there is nothing else against the appellant, within three months from the receipt of the writ of this order.” 10. A perusal of the said observation reveals that the Division Bench specifically wanted the State Authorities to consider the case of the petitioner as per the Rules prevailing on 23.3.2006 i.e. the date of the demise of the late father of the petitioner and 19.6.2006 i.e. the date when the present petitioner had made his first application for being granted appointment on compassionate ground. It would appear that the State relies upon the Notification by the GAD dated 16.3.2005, more particularly whereby the State had included the criteria of SSC Pass as being a relevant qualification for being appointed on Class-IV post. It would, at this stage, be necessary to refer to Rules themselves, which inter alia envisage, regulating recruitment to post of Class-IV with any appellation in inferior service in the secretariat and non-secretariat offices of the State Government. It would, at this stage, be necessary to refer to Rules themselves, which inter alia envisage, regulating recruitment to post of Class-IV with any appellation in inferior service in the secretariat and non-secretariat offices of the State Government. While the said policy inter alia brings forth a change in the required educational qualification, yet what would be relevant to observe is that the said Notification is applicable to the services under the State. In the instant case, late father of the petitioner was working with respondent No.2 i.e. Rajkot District Panchayat and whereas the Rules applicable to the State Services would not be relevant Rules in this regard. In the considered opinion of this Court, for complying with the direction of the Hon’ble Division Bench, the respondents were required to take into consideration the relevant Rules whereby the qualification of SSC pass was introduced as relevant qualification for appointment on Class-IV post in Panchayat Services. 11. In this regard, it would appear that at the time of demise of late father of the petitioner and even at the time when the petitioner had made his first application for being granted compassionate appointment, the scheme of compassionate appointment was regulated vide Resolution dated 10.3.2003. It would appear that at the relevant point of time, the said policy inter alia required that for Class-IV post, the candidate should have certificate of having passed Standard IV to IX. 12. It would also appear that insofar as the Panchayat service is concerned, the Panchayat and Rural Housing Department vide Notification dated 19.7.2006 had introduced the qualification of SSC pass as being a relevant qualification for appointment on Class-IV post. The contention of the petitioner about the said policy being the policy by which the qualification of SSC being introduced for the first time in the Panchayat services does not appear to be contested by the respondents in their affidavit-in-reply, rather, as noted herein above, the respondents have tried to base their case on Notification of GAD dated 16.3.2005, which Notification, in the considered opinion of this Court, as noted earlier, would not be applicable to the facts of the present case. 13. 13. It would , thus, appear that on the date of demise of late father of the petitioner i.e. 23.3.2006 and on the date of the application by the present petitioner for the first time i.e. on 19.6.2006 the policy of the Panchayat Department did not envisage that the candidate should have the qualification of SSC. Adverse inference also can be drawn to the fact that the respondent Authorities, instead of producing any Rules of the Panchayat Department, which would have prescribed the said eligibility criteria near about the dates as the mentioned herein above, as per paragraph 6.1 of decision dated 11.2.2019, yet the respondents have sought to rely upon a Notification of the GAD, which clearly is not applicable to the facts of the present case. Thus, it would appear that the respondent State authorities have relied upon wrong policy to deny appointment to the petitioner on compassionate ground, more particularly, at the cost of repetition, the Notification dated 16.3.2005 not being applicable to the facts of the present case, since the appointment is to a post in Panchayat service. It also clearly appears that in Panchayat Service, the requirement for being SSC passed had been introduced for the first time by the Notification dated 19.7.2006 i.e. post the date of demise of late father of the petitioner and post the date when the application was made by the petitioner for the first time. The upshot of the discussion being that had the case of the petitioner been considered strictly as per the directions of the Division Bench in LPA No.1086 of 2012, then the petitioner could have been entitled for appointment on compassionate basis. 14. In this view of the matter, in the considered opinion of this Court, the impugned order dated 10.4.2019 being completely perverse and being against the legal position, is required to be interfered and hence, the same is hereby quashed and set aside. The respondents are directed to appoint the petitioner on any Class-IV post with the respondents and while the petitioner would be entitled to the benefit of seniority and continuity of service from 11.2.2019 i.e. from the date of decision of Hon’ble Division Bench, the petitioner would not be entitled to any arrears of salary, etc. The respondents shall take appropriate steps to comply with as above within a period of three months from the date of receipt of this order. The respondents shall take appropriate steps to comply with as above within a period of three months from the date of receipt of this order. 15. With the above observations and directions, the present petition is disposed of as allowed. Rule is made absolute accordingly. Direct service is permitted.