1. By way of this petition, the petitioner has prayed for a direction to the respondents to grant him compassionate appointment.
2. The case of the petitioner is that the father of the petitioner, Mr. Hushensha Rajabsha Shahamdar was employed in the Sales Tax Office Vereval as a Peon and he expired on 26.12.1999. The petitioner has made a representation before the respondent authorities to grant him employment on compassionate basis on 13.03.2000 and the petitioner supplied the relevant documents to the respondent authorities. Respondent no. 5 has forwarded the representation of the petitioner to respondent no.1. On 14.09.2005, the petitioner received a letter / order from the respondent no.1 rejecting the request of the petitioner to grant him compassionate appointment on the ground that he is not having qualification of SSC, as per Government Notification dated 19.07.2006. It is submitted that the said notification is not applicable to the present case as the father of the petitioner had expired on 26.12.1999 and he applied for compassionate appointment on 13.03.2000 i.e. prior to issuance of the notification dated 16.03.2005.
3. The petitioner again submitted representation on 06.02.2006 to reconsider his case for compassionate appointment to the respondent no.1 but he has not received any reply.
4. The petitioner, therefore, has filed Special Civil Application No.9825/2007 before this Court on 11.04.2007, which was disposed of on 12.04.2007 with the directions to the respondent to reconsider the petitioner's case as per the policy prevailing at the relevant time when the petitioner's father died and to pass an appropriate order within three months from the date of receiving of copy of the said order. Despite the said order, the respondent no. 1 again rejected the case of the petitioner on the same ground. Aggrieved by the said order the petitioner again challenged the same by filing Special Civil Application No. 21800/2007 and this Court directed the authority to reconsider the case of the petitioner. Despite the said order the respondent no.1 again rejected the application of the petitioner again on 22.11.2007. On 18.07.2008 the petitioner has received a letter from the respondent authority that the respondent authority has decided to file L.P.A. against the order passed by Single Judge and, therefore, the case of the petitioner was not yet decided.
3. Learned counsel for the petitioner has contended that the respondent authorities have rejected the application of the petitioner without application of mind. He contended that the compassionate appointment is required to be considered on the basis of the policy which was prevalent at the time of death or on the date of filing of application.
4. On the other hand, learned counsel for the respondents has contended that the petitioner is not having requisite education qualification of S.S.C. for the appointment of class IV as per the decision taken by Gujarat Subordinate Selection Board. The law is well settled that the policy prevailing at the time of deciding the application of compassionate appointment is required to be taken into consideration and hence, resolution dated 16th March 2005 is applicable to the present case.
5. I have heard both the sides carefully and the material placed on record.
6. The Apex Court in the case of Union of India and Another vs. B. Kishore reported in 2011(13) SCC
131 has held that indigence of dependants of deceased employee is first precondition to bring case under scheme of compassionate appointment and that absence of any indigence would turn out to be a reservation in favour of the dependents of an employee who died while in service which would be directly in conflict with the ideal of equality guaranteed under Articles 14 and
16 of the Constitution. Similarly in the case of State Bank of India vs. Raj Kumar, reported in 2010(11) SCC 661 the Apex Court in paras 8 & 9 has held as under:
“8. It is now well settled that appointment on compassionate grounds is not a source of recruitment. On the other hand it is an exception to the general rule that recruitment to public services should be on the basis of merit, by an open invitation providing equal opportunity to all eligible persons to participate in the selection process. The dependants of employees, who die in harness, do not have any special claim or right to employment, except by way of the concession that may be extended by the employer under the Rules or by a separate scheme, to enable the family of the deceased to get over the sudden financial crisis. The claim for compassionate appointment is therefore traceable only to the scheme framed by the employer for such employment and there is no right whatsoever outside such scheme. An appointment under the scheme can be made only if the scheme is in force and not after it is abolished/withdrawn. It follows therefore that when a scheme is abolished, any pending application seeking appointment under the scheme will also cease to exist, unless saved. The mere fact that an application was made when the scheme was in force, will not by itself create a right in favour of the applicant.
9. Normally the three basic requirements to claim appointment under any scheme for compassionate appointment are: (i) an application by a dependent family member of the deceased employee; (ii) fulfillment of the eligibility criteria prescribed under the scheme, for compassionate appointment; and (iii) availability of posts, for making such appointment. If a scheme provides for automatic appointment to a specified family member, on the death of any employee, without any of the aforesaid requirements, it can be said that the scheme creates a right in favour of the family member for appointment on the date of death of the employee. In such an event the scheme in force at the time of death would apply.”
[Emphasis supplied]
7. In view of the aforesaid, decision taken by the Hon'ble Supreme Court in above mentioned cases and also in LPA Nos. 618/2010 and 887/2010. I feel that the ground taken by the respondent authority is just and proper and does not require any interference and the petition requires to be dismissed.
8. Accordingly, this petition stands dismissed.
Notice is discharged.
(K.S. Jhaveri, J.) Amar