Gujarat High Court
Vajesinh R. Dabhi vs State Of Gujarat & 3 on 7 September, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/9236/2007 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 9236 of 2007
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VAJESINH R. DABHI....Petitioner(s)
Versus
STATE OF GUJARAT & 3....Respondent(s)
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Appearance:
MR.SANAT B PANDYA, ADVOCATE for the Petitioner(s) No. 1
GOVERNMENT PLEADER for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 1 - 4
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 07/09/2016
ORAL ORDER
1. By this writ application under Article 226 of the Constitution of India, the writ applicant, seeking compassionate appointment, has prayed for the following reliefs;
"(A) YOUR LORDSHIPS be pleased to admit this Special Civil Application.
(B) YOUR LORDSHIPS be pleased to issue a writ of mandamus and/or any other appropriate writ, direction or order directing the respondents their agents, servants by quashing and setting aside the impugned order passed by the respondents at Annexure A and pass necessary direction upon the respondent no.2,3 and 4 to appoint forthwith petitioner i.e. Shri Rajendra V. Dabhi on the post of Junior Clerk for which his name have been initially found eligible and recommended by the respondent no.3 to respondent no.2 looking to the facts and circumstances of his case and various judgments rendered by Apex Court and the Hon'ble Court at Page 1 of 7 HC-NIC Page 1 of 7 Created On Fri Sep 09 01:01:08 IST 2016 C/SCA/9236/2007 ORDER Annexure D to this petition.
(C ) Pending hearing and final disposal of this writ petition, YOUR LORDSHIPS be pleased to issue an appropriate writ, direction or order directing the respondents, their agents and servants etc to pass necessary directions upon the respondent no 2,3 and 4 to Shri Rajendrasinh V. Dabhi appointment of the petitioner as junior Clerk by quashed and set aside the impugned order at Annexure A to this petition as expeditiously as possible which may deem fit to this honourable court on the compassionate ground in the interest of justice.
(D) YOUR LORDSHIPS be pleased to issue a appropriate writ, direction or order directing the respondents to give monthly an amount of Rs.2,000/- to the petitioner provisionally till the date of appointment of the petitioner in the office of the respondents on compassionate ground or till the hearing and final disposal of this petition.
(E) YOUR LORDSHIPS be pleased to grant such other and further relief in the interest of justice.
(F) YOUR LORDSHIPS be pleased to award costs of the petition to the petitioner."
2. It appears from the materials on record that the father of the writ applicant was serving as a Junior Clerk in the respondent No.3-Department. The father passed away on 27th October, 2000 while in service. At the time when the father passed away, the writ applicant was a minor. Being a minor, he preferred an application seeking the compassionate appointment. It also appears that no sooner the writ applicant attained majority, then he addressed a letter dated 13th August, 2002, informing that he has become major and his application dated 20th January, 2002 be now considered for the compassionate appointment. Since the request was declined, the writ applicant came before this Court by filing the Special Civil Application No.9784 of 2004. The said writ application Page 2 of 7 HC-NIC Page 2 of 7 Created On Fri Sep 09 01:01:08 IST 2016 C/SCA/9236/2007 ORDER was disposed of vide judgment and order dated 13th July, 2005 in the following terms;
"1. By filing this petition, the petitioner has challenged the order dated 23rd July 2004 passed by Controller, Weights & Measure Department, Ahmedabad, who is respondent No.3 in this petition. A copy of the said order is finding place at page 39 [Annexure 'H'] of the compilation. By the said order, the application of the petitioner for compassionate appointment came to be rejected.
2. Father of the petitioner was serving as Junior Clerk in the respondent No. 3 Department, and while in service, he died on 27.10.2000. The petitioner thereafter applied for compassionate appointment. According to Mr. Pandit, learned advocate for the petitioner, since the petitioner was minor at the relevant time, he applied on becoming major, and, therefore, the application is within time. He submitted that in fact, the petitioner applied few months earlier to his becoming major, i.e. the application was made on 20.01.2002 whereas he became a major on 25.07.2002. He further submitted that on 13 th August 2002, the petitioner wrote another letter stating the aforesaid fact that he has made the application on 20.01.2002 and as he became major on 25.7.2002, his application for compassionate appointment may be considered. However, the respondent No. 3 rejected the application on the ground that the application for compassionate appointment has not been made within the time prescribed time, and, therefore, the same cannot be entertained.
3. As per the averments made in the claim petition and as per the submission made by learned advocate for the petitioner, the petitioner applied few months before he became major, and on attaining majority on 25.7.2002, by letter dated 13th August 2002, the petitioner requested the authority to consider his case. Though this Court has issued Rule in this matter and expedited the hearing as back as on 11th August 2004, and though this matter is listed in the final hearing board, the respondents have not filed any reply. Thus, the averments made in the petition have remained uncontroverted. However, Mr. D.A. Desai, learned Page 3 of 7 HC-NIC Page 3 of 7 Created On Fri Sep 09 01:01:08 IST 2016 C/SCA/9236/2007 ORDER Assistant Government Pleader pointed out that as per the instructions received by him, mother of the petitioner had earlier applied, and the said application was rejected. He further submitted that this fact is not disclosed in the petition. However, this aspect is not referred to in the impugned order. Thus, there is nothing on the record to show on what ground the application of the petitioner was rejected by the Department.
4. Mr. Pandit submitted that as per the Government Resolution dated 26.2.1997, an application for compassionate appointment can be made within a period of six months after becoming major. He has placed on record a copy of the resolution dated 26.2.1997 which is ordered to be taken on record. Considering the aforesaid aspect of the matter, this petition is required to be partly allowed, by remanding the matter to the respondent No.3.
5. The petitioner is accordingly partly allowed. The matter is remanded to respondent No.3. The respondent No. 3 is directed to decide the matter afresh and pass an order on merits in accordance with law within a period of two months from the date of receipt of the writ of this Court. Whatever may be the decision, shall be communicated to the petitioner forthwith thereafter. It is needless to say that the Secretary shall pass a reasoned, speaking order. At the time of passing the order, respondent No.3 shall consider whether the petitioner has applied within six months of becoming major.
6. This petition is partly allowed. Rule made absolute accordingly. No order as to costs."
3. Pursuant to the order passed by this Court, the authority concerned looked into the matter and rejected the application on the ground that the same was time barred. The writ applicant, once again, came before this Court by filing the Special Civil Application No.21919 of 2005. The said writ application came to be disposed of vide judgment and order dated 4th October, 206, which reads as under;
Page 4 of 7HC-NIC Page 4 of 7 Created On Fri Sep 09 01:01:08 IST 2016 C/SCA/9236/2007 ORDER "1. Heard the learned Advocate, Mr.K.G.Pandit, appearing on behalf of petitioner and learned AGP, Mr.Dabhi, appearing on behalf of respondent.
2. In pursuance to the direction issued by this Court in SCA No.9784 of 2004 dated 13.7.2005, the respondent has taken the decision on 15.10.2005 rejecting the application of the petitioner only on the ground of delay in filing the application for compassionate appointment before the respondent authority. When this Court has directed to re-consider the matter meaning thereby that respondent authority should have to consider the merits of the matter and not to take technical stand for rejecting the application.
3. Therefore, in view of these facts, it is directed to the respondent authority to re-consider the order dated 15.10.2005 and examine the application of petitioner for compassionate appointment on merits and then, pass appropriate reasoned order in accordance with law, withing a period of two months from the date of receiving the copy of this order.
4. In view of the aforesaid observations and directions, present petition is disposed of, without expressing any opinion on merits. However, in case if ultimate decision is adverse to the petitioner, it is open for the petitioner to challenge the same before appropriate forum in accordance with law. Rule is made absolute to aforesaid extent. Direct service is permitted.
5. In view of the order passed in main SCA No.21919 of 2005, Civil Application No.11229 of 2006 does not survive and stands disposed of accordingly."
4. Pursuant to the order passed by this Court referred to above, the matter was again considered and vide communication dated 5th January, 2007, the writ applicant was informed that since his application was time barred, the request for the compassionate appointment was declined.
5. Being dissatisfied, the writ applicant has come up with Page 5 of 7 HC-NIC Page 5 of 7 Created On Fri Sep 09 01:01:08 IST 2016 C/SCA/9236/2007 ORDER this writ application.
6. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the Gujarat Sub-ordinate Service Selection Board committed any error in passing the impugned order.
7. This is a third round of litigation. I am unable to understand why the Board is of the view that the application filed by the writ applicant was time barred. Let me remind the Board that the first application filed by the writ applicant is dated 20th January, 2002. Indisputably, on 20th January, 2002, the writ applicant was a minor. He became major on 25th July, 2002. On 13th August, 2002, the writ applicant addressed one another letter stating the aforesaid fact that he had preferred an application dated 20th January, 2002 and has become major on 25th July, 2002. In such circumstances, I am at my wits to understand why the Board feels that the application was not in accordance with the policy of the State Government. The policy which was prevailing at the relevant point of time dated 26th February, 1997 provided that an application for the compassionate appointment could be made within a period of six months after becoming major. In fact, the letter dated 13th August, 2002 itself could have been treated as an application for the compassionate appointment. The letter dated 13th August, 2002 was addressed within one month from the date, the writ applicant became major.
8. It is very unfortunate that for the third time, the matter will have to be remitted to the Board once again for fresh consideration. This time, let the letter be looked into by the Page 6 of 7 HC-NIC Page 6 of 7 Created On Fri Sep 09 01:01:08 IST 2016 C/SCA/9236/2007 ORDER respondent No.3 and do the needful.
9. In the result, this writ application is allowed in part. The impugned order dated 5th January, 2007 is hereby quashed. The matter is remitted to the respondent No.3 for fresh decision in accordance with the observations made by this Court including the observations made by this Court in the past in the two orders referred to above. Let such decision be taken within a period of eight weeks from the date of the receipt of the writ of the order.
Direct service is permitted.
(J.B.PARDIWALA, J.) Vahid Page 7 of 7 HC-NIC Page 7 of 7 Created On Fri Sep 09 01:01:08 IST 2016