1. By way of this petition the petitioner has prayed for quashing and setting aside the order dated 04-08-2010 passed by the respondent NO.3 by further directing the respondents to give compassionate appointment to the petitioner on Class - IV post.
2. That the petitioner's father expired on 25.02.2005 while he was in service. That the petitioner, being legal heir of the deceased, applied for compassionate appointment by application, which was responded to by respondent authority vide communication dated 03.09.2007 informing the petitioner that his application is rejected. That as per resolution dated 10.03.2000 the petitioner had applied for being considered for compassionate appointment for Class-IV and therefore the order impugned in the present petition is bad and illegal. It is further canvassed that the decision taken by the respondent authority dated 03.09.2007 is also de hors the provisions of Resolution dated 10.03.2000. Being aggrieved by the said decision of rejection of the application of the petitioner for being considered for compassionate appointment, the present petition is filed.
3. Heard Ms. Sneha Joshi, learned advocate for the petitioner, and Mr. Pranav Dave, learned Assistant Government Pleader for the respondent authorities.
4. Ms.
Joshi, learned advocate for the petitioner, has submitted that the petitioner's father expired on 25.02.2005 and the petitioner had made applications as per Resolution dated 10.03.2000 of the State Government, which clearly prescribe the requisite qualification for being considered as Class-IV category in case of compassionate appointment as 4th - 9th std. pass. It was thereafter submitted that the reason that was put forward by the respondent authority for rejection of the application of the petitioner that the petitioner was not SSC pass and, therefore, he is not eligible for compassionate appointment even for Class-IV, which is even against the policy of the government. Relying upon Clause 5(c) of Resolution dated 10.03.2000 it was submitted that the said policy clearly provides that the requisite qualification for Class-IV category is Std. 4th - 9th.
Similarly, relying upon Clause-3 of Resolution dated 25.04.2008 it was further pointed out that as, inter alia, provided under Clause-3 what has been stated in Clause 5(c) of Resolution dated 10.03.2000 in relation to for being considered for compassionate appointment is same meaning thereby, according to the petitioner, the qualifications which are mentioned in Clause-5(c) of Resolution dated 10.03.2000 are not altered or changed thereafter and even as per Resolution dated 25.04.2008 same qualifications are prescribed. It was therefore submitted that the order of rejection impugned in the present petition deserves to be quashed and set aside and the petition deserves to be allowed. No other contentions are raised by learned advocate for the petitioner.
4.1 Ms.
Joshi, in support of her aforesaid contentions has relied upon a decision of this Court in the case of Rajiben W/o Somabhai A. Makwana and Another vs. State of Gujarat and Others reported in 2007(4) GLR 3300 and submitted that the view taken by this Court in the said decision is confirmed by a division bench of this Court and the Apex Court wherein it is held that subsequent change in policy or rules would not apply retrospectively.
5. Per contra, Mr. Dave, learned Assistant Government Pleader for the respondent authorities, has relied upon the contentions raised in the affidavit-in-reply filed by Dy. S.P. H.Q. W. Railway, Baroda. It was pointed out that by Notification dated 16.03.2005, qualifications for Class-IV in the inferior services were changed. It was pointed out that Rule 3 thereof reads as under :
"3. To be eligible for appointment by direct selection to the post mentioned in rule 2, a candidate shall:
(i) not be less than 18 years and not more than 25 years of age;
(ii) have passed Secondary School Certificate Examination.
(iii) possesses skills relevant to the job as may be prescribed by Government from time to time:
Provided that preference may be given a candidate who possesses the driving licence for light motor vehicle."
5.1 On the basis of the same it was pointed out that thus, the fact that on 16.03.2005 the requisite minimum qualification for Class-IV inferior service would be SSC examination passed. It was therefore submitted that therefore as provided under Resolution dated 25.04.2008, more particularly Clause-3 thereof it would mean that the candidate for being considered even on compassionate basis has to fulfill the requirement of requisite qualification. It was submitted that thus, on the date the application was made by the petitioner and considered by the respondent authority the minimum qualification was SSC passed and admittedly the petitioner was not SSC passed and, therefore, the order impugned in the present petition is as per the policy of the State Government and the same is legal and proper and the petition is devoid of merits and hence, deserves to be rejected.
6. Considering the rival submissions made by both sides, it is an admitted position that by Notification dated 16.03.2005, the State of Gujarat have amended the requisite qualifications for Class-IV inferior service. The Rules have come into force being Class-IV Posts (in Inferior Service) in the Gujarat Secretariat and non-Secretariat offices of Government of Gujarat Offices Recruitment Rules, 2005 whereby the minimum qualification of Class-IV category is SSC Certificate examination.
6.1 It is true that as per the policy of compassionate appointment declared by the State Government vide Resolution dated 10.03.2000 it is provided under Clause-5(c) that the person, who has to be considered for compassionate appointment has to possess the requisite qualification as per the recruitment rules. Reliance placed by the learned advocate for the petitioner on the illustrations, which are given in Clause-5(c) and what is provided for in Clause-3 of Resolution dated 25.04.2008 cannot be read in the manner in which it is sought to be canvassed by the learned advocate for the petitioner. At this stage it would be appropriate to reproduce the English version of Clause 5(c), which reads as under:
" The candidate for compassionate appointment should be eligible and fit in all respects under the provisions of the Recruitment Rules of the post of appointment viz. --
The candidate, (1) Possessing educational qualification of Std. IV to IX, for Class-IV, (2) Possessing educational qualification of S.S.C. or more than that, for the lowest category of Class-III.
(3) Possessing educational qualification of driver, and possessing other qualifications, for driver and (4) Illiterate candidate not possessing any educational qualifications, in whose Recruitment Rules no educational qualification is prescribed may be given appointment on posts like Hamal, sweeper, water-boy, scavenger of class-IV."
6.2 Considering the provisions of Clause 3 of Resolution dated 25.04.2008 whereby the provisions for compassionate appointment was made by the State Government, the same would mean that the petitioner for being considered for compassionate appointment has to possess the qualifications as per the recruitment rules. As aforesaid the recruitment rules came into force w.e.f. 16.03.2005 which provides that the minimum required qualification is SSC. The petitioner had applied for being considered for compassionate appointment on 22.03.2005, which has to be considered as per the prevailing policy even on the date of making the said application the minimum requirement for the same was SSC. Hence, what is provided in Clause 5(c) of Resolution dated 10.03.2000 is not the requisite qualifications provided even for the applications which was to be considered after 16.03.2005. Clause-3 of Resolution dated 25.04.2008 cannot be interpreted to have saved the requisite qualifications for recruitment which existed on 10.03.2000 and the purport of Clause-3, in opinion of this Court, is that the candidate should possess requisite qualification as per the recruitment rules prevailing. In the facts of the present case the petitioner was not possessing the requisite minimum qualification i.e. SSC and, therefore, the authorities have rightly interpreted the policy and the orders impugned are proper.
7. Even if it is considered that when the application for the petitioner for compassionate appointment was under consideration and was actually considered the policy as enunciated by Resolution dated 25.04.2008 was the prevailing policy it would be evident from Clause-(1)(A) 1, which prescribed time limit. The petitioner had not achieved the minimum qualification within the period of six months from the date of the sad demise of the father of the petitioner and it is specifically provided that no application for relaxation in such cases should be forwarded to the concerned department or the General Administrative Department and hence, the fact that the petitioner acquired minimum qualification of S.C.C. when he filed the application would be of no consequence as the same was beyond the time prescribed under the policy dated 25.04.2008. It may be noted that no such contention is raised by the petitioner in the petition, however, the same is dealt with in view of the fact that the application filed by the petitioner indicates such a fact. The decision cited by learned advocate for the petitioner shall not be applicable on the facts of the present case as the policy which is made applicable was existing at the time of application and the same has not been effected retrospectively.
8. In the event the petition fails and the same is rejected in limine. No costs.
(K.S.
JHAVERI, J.) Divya// Top