Gujarat High Court
Ashok Kamabhai Chaudhary vs Chief Scientist & 3 on 27 January, 2014
Author: Ks Jhaveri
Bench: Ks Jhaveri, A.G.Uraizee
C/LPA/1532/2007 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 1532 of 2007
In SPECIAL CIVIL APPLICATION NO. 5682 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE KS JHAVERI
and
HONOURABLE MR.JUSTICE A.G.URAIZEE
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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ASHOK KAMABHAI CHAUDHARY....Appellant(s)
Versus
CHIEF SCIENTIST & 3....Respondent(s)
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Appearance:
MR TEJAS M BAROT, ADVOCATE for the Appellant(s) No. 1
MR HS MUNSHAW, ADVOCATE for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2 - 4
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Page 1 of 6
C/LPA/1532/2007 JUDGMENT
CORAM: HONOURABLE MR.JUSTICE KS JHAVERI
and
HONOURABLE MR.JUSTICE A.G.URAIZEE
Date : 27/01/2014
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE KS JHAVERI)
1. Present appeal under Clause 15 of Letters Patent has been filed challenging the judgement and order dated 02.03.2007 passed by the learned Single Judge of this Court in Special Civil Application No. 5682 of 2007 whereby the writ petition was dismissed and the order dated 02.02.2007 passed by respondents rejecting the case of the appellant for compassionate appointment was confirmed.
2. On 1.3.1989, the father of the appellant joined the service of respondent No.1 as a watchman on daily wage basis. A request was made by father of the appellant to place the appellant in class-III on work charge basis on the basis of the GR dated 17.10.1988. The father of the appellant expired on 10.6.2000 after completing more than 11 years' service. Thereafter, an application was made by the mother of the appellant on compassionate ground on behalf of the appellant which was rejected by the respondent on 16.1.2002 on the ground that the policy of State Government dated 10.3.2000, Item No.2, excludes a daily wage employee from granting the benefit of compassionate appointment. Therefore, the appellant filed SCA No. 11164 of 2002 before this Court which was allowed and the respondents were directed to reconsider the matter.
Page 2 of 6C/LPA/1532/2007 JUDGMENT 2.1 Thereafter, in pursuance to the Court's direction, a representation was made by the appellant with a prayer to reconsider his case for compassionate appointment, which was rejected cvide order dated 2/2/2007 on the ground that there was no scheme applicable in favour of the appellant, which could provide compassionate appointment to the appellant. The appellant therefore approached this Court by way of Special Civil Application No. 5682 of 2007 which was dismissed by the learned Single Judge. Hence, the present appeal.
3. Mr. Tejas Barot, learned advocate appearing for the appellant submitted that the learned Single Judge committed a grave error in observing that there was no scheme which provided for compassionate appointment to the appellant and therefore the respondents were justified in taking the decision. He submitted that the learned Single Judge erred in not appreciating that the G.R dated 17.10.1988 specifically provided for regularization of those daily wagers who had completed 10 years of service and that therefore it ought to have been appreciated that the respondents passed the impugned orders misreading the G.R. Dated 17.10.1988. He submittedt hat the said G.R, on the contrary, placed a daily wager who had completed 10 years of service at par with a regular employee who would be entitled to all the benefits including compassionate appointment of his relatives.
4. Mr. Munshaw, learned advocate appearing for the respondent authority supported the impugned order and submitted that the same being in accordance with law does not call for any interference by this Court.
Page 3 of 6C/LPA/1532/2007 JUDGMENT
5. The learned Single Judge by way of the impugned order dated 02.03.2007 in Special Civil Application No. 5682 of 2007 has observed as under:
"... The respondent has rejected the claim of petitioner for compassionate appointment on the basis of various Government Resolution including the resolution dated 17/10/1988. Ultimately, in para 9, specifically made it clear that, there is no provision made in Government Resolution dated 17/10/1988, which provide compassionate appointment to dependent of such employee, those who were getting various benefits under Government Resolution dated 17/10/1988.
It is also made clear by Government Resolution dated 27/1/1992 that in case of death of daily wager employee working on fixed salary, there is no provision made to provide compassionate appointment.
Similarly, in policy of Government Resolution dated 10/3/2000 also it is made clear that daily wagers are not covered by the benefit of compassionate appointment.
Therefore, the decision has been taken by the respondent, that in absence of policy, petitioner is not entitled for the benefit of compassionate appointment. I have perused the order passed by the respondent.
Recently, Apex Court has also considered the same aspect in case of National Institution of Technology & Ors. Vs. Niraj Kumar Singh reported in 2007 (2) SCALE, page 525, relevant para 14 is quoted as under :
ýSA appointment on compassionate ground would be illegal in absence of any scheme providing therefore. Such scheme must be commensurate with the constitutional scheme of equality.ýý Page 4 of 6 C/LPA/1532/2007 JUDGMENT Therefore, in view of the above observation made by Apex Court and considering that there was no scheme available which providing compassionate appointment to the petitioner, respondent is justified in taking decision. ..."
5.1 We have perused the records of the case. The grievance voiced in this appeal is that the appellant who was working as a daily wager with the respondent department at the time of death of his father, was entitled to compassionate appointment which has not been provided by the respondent authority. We are in complete agreement with the impugned order passed by the learned Single Judge. A compassionate appointment is not a matter of right and an applicant is entitled to such benefit only in accordance with the policy of the employer prevailing at the relevant time. In the instant case, the appellant herein is not entitled to such benefit in absence of any provision of the policy which would be helpful to him. Going by the Government Resolutions placed on record of this case, we are of the view that the decision taken by the respondent authority and the opinion of the learned Single Judge in this regard is just and proper. Even otherwise in view of the decision of the Apex Court in the case of National Institution of Technology & Ors. Vs. Niraj Kumar Singh reported in 2007 (2) SCALE 525, we do not find any infirmity in the impugned order of the learned Single Judge and therefore we are not inclined to accept any contention raised in the present appeal.
6. Accordingly, the appeal being devoid of any merits is hereby dismissed. No costs.
Page 5 of 6 C/LPA/1532/2007 JUDGMENT
(K.S.JHAVERI, J.)
(A.G.URAIZEE,J)
divya
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