Gujarat High Court
Karansinh vs State on 17 July, 2008
Author: S. Dave
Bench: Anant S. Dave, S. Dave
Gujarat High Court Case Information System
Print
SCA/9380/2008 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 9380 of 2008
==========================================
KARANSINH
KANUBHAI DAYATAR - Petitioner(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
==========================================
Appearance
:
MR ANSHIN H DESAI for
Petitioner(s) : 1,
Ms V. H. Pathak Asstt.GOVERNMENT PLEADER for
Respondent(s) : 1,
None for Respondent(s) : 2 -
3.
==========================================
CORAM
:
HONOURABLE
MR.JUSTICE ANANT S. DAVE
Date
: 17/07/2008
ORAL
ORDER
1. This petition under Article 226 of the Constitution of India is filed by the surviving legal heirs of the employee who died in harness on 24th November 1991.
2. It is the case of the petitioner that when his father died in harness the petitioner was aged about seven years and therefore was not eligible to be appointed on compassionate appointment ground. Later on mother of the petitioner addressed a communication on 28th February 1997 along with succession certificate and submitted that at the relevant point of time, when her husband died in harness, she could not prefer an application for compassionate appointment in view of the prevalent custom akin to pardanashin system and unable to take any government assignment and therefore when her son became major on attaining majority, the respondent was to consider the case of her son, the petitioner herein , for compassionate appointment.
3. The application along with the affidavit of the mother of the petitioner was preferred on 6th May 2002 and relevant certificates required along with the application for compassionate appointment were also submitted. On 11th June 2002 the respondent No. 2 addressed a communication to the petitioner stating that proper procedure is to be followed and accordingly the case of the petitioner was required to be considered. In short, the petitioner fulfilled all the requirements for getting compassionate appointment.
3.1 However, by an order dated 3rd December 2002 the application of the petitioner came to be rejected on the ground that the mother of the petitioner had passed standard X and the application was preferred after five years from the death of the father of the petitioner and in view of the fact that no application was preferred by eligible surviving member at the relevant point of time i.e in the year 1991, the case of the petitioner was not to be considered.
4. Being aggrieved and dissatisfied by the aforesaid rejection, the petitioner preferred Regular Civil Suit No. 33 of 2003 and both the defendants were directed to reconsider the case of the plaintiff, the petitioner herein, with proper application of mind by keeping in light Government circular and the order dated 9th January 2002 and necessary proposal was to be forwarded to the competent authority, after affording chance of rehearing to the plaintiff and a fresh decision was to be taken on humanitarian ground after considering relevant circumstances.
5. The above directions were given by learned 2nd Additional Senior Civil Judge, Junagadh in Regular Civil Suit No. 33 of 2003 on 3rd February 2007.
6. By order dated 14th August 2007 Director General of Police, State of Gujarat keeping in mind the order passed by the Civil Court in the aforementioned suit and after hearing the petitioner passed a reasoned order and considered the aspect about eligibility of the mother of the petitioner for compassionate appointment in the year 1991, financial hardship of the family, the custom prevailing vis-a-vis relevant Government Resolutions and purpose of scheme of compassionate appointment and the decision of the Apex Court in Umesh Kumar Nagpal Vs. State of Haryana & Ors. Reported in JT 1994 (3) Supreme Court page 525, and held that the petitioner was not eligible to the offer of Compassionate appointment.
7. Mr Desai learned advocate appearing for the petitioner has raised several grounds and submitted that the the impugned order dated 14th August 2007 and subsequent order dated 21st August 2007 are contrary to the directions issued by the Civil Court and relevant provisions of Government Resolutions of 1991 and 2002 are not taken into consideration. It is further submitted that the mother of the petitioner was following a custom akin to pardanashin and therefore could not apply at relevant point of time and on attaining the age, the petitioner herein preferred an application by following due procedure which deserved consideration of the respondent authorities and therefore the impugned orders be quashed and set aside.
8. Learned Assistant Government Pleader appearing for the respondent authorities has placed on record Government resolution for perusal of this Court and submitted that as per the prevalent policy of compassionate appointment, as framed by the Government of Gujarat which was in force in the year 1988, when the father of the petitioner died in harness i.e in the year 1991, only one surviving member of the family was eligible to be offered an appointment on compassionate appointment ground and in this case wife of the late employee and mother of the petitioner was duly qualified to be appointed but she did not prefer any application on the ground of following some custom for which no exemption can be granted, in absence of any specific provision in the Government Resolution of 1991. According to the Assistant Government Pleader Ms V.H Pathak all the financial aspects and hardships etc were taken into consideration and there is no disregard to the direction given by the Civil Court and this petition deserves to be rejected.
9. Having heard learned counsel appearing for the parties and on perusal of the record, as per the decision of the Apex Court in the case of Abhishek Kumar Vs State of Haryana & Ors. reported in 2006(3) SCALE while considering the case of compassionate appointment, the policy which is prevalent at the time when the employee died in harness has to be considered and as per the Government Resolution produced on record by the Learned Assistant Government Pleader and specifically the resolution dated 16th December 1991 no exemption was given but any member who died in harness on the ground of following the custom akin to pardanashin and admittedly wife of the late employee was having requisite qualification but failed to apply in the year 1991 and survived all these years cannot be said to be a case for consideration of compassionate appointment.
9.1 The scheme, any rule or regulation belonging to compassionate appointment by the Government is in exception to the normal recruitment procedure contemplated under Recruitment Rule and virtual negation under Article 14,15 and 16 of the Constitution of India. It is trite that other meritorious candidates have also equal opportunity to seek public employment as guaranteed by the above Article of Constitution of India. Besides the relief which was necessary to be given to the bereaved member of the late employee was at the time when such employee died in harness and reliance placed by the authority in the decision of the Supreme Court in the case of State of Haryana (Supra) has rightly observed that after many years, if the family survives, the purpose of offering the compassionate appointment becomes otiose.
9.2 The authority concerned while passing the impugned order have taken into consideration all relevant aspects about eligibility of surviving member of the late employee, financial aspects and time limit prescribed under the resolution and decision taken after the hearing of the petitioner cannot be said in any manner contrary to law or relevant Government resolution. Hence, no case is made out. The petition is rejected summarily.
(Anant S. Dave,J.) mary// Top