1. By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs :
“ A) This Honourable Court be pleased to issue an order, writ in the nature of mandamus and or certiorari or other appropriate writ, order or direction, declaring the impugned decision of respondent No.3 rejecting the request of petitioner for compassionate appointment on the ground that he did not possess SSC qualification as arbitrary, illegal, unjust, non application of mind hence, requires to be quashed and set aside and direct the respondent to grant compassionate appointment to the petitioner;
B) Pending admission hearing and final disposal of this petition, Your Lordships may be pleased to direct the respondent to reconsider case of petitioner;
C) Any other relief which this Honourable Court deems fit and proper in the interest of justice.”
2. The facts which emerges from the record of the petition are as under.
2.1 That the petitioner is a son of Late Soleman B. Shaikh, who was serving as Police Bandman. That father of the petitioner expired on 19.05.2002 because of major illness, leaving behind mother of the petitioner, grandmother of the petitioner and three daughters and two sons.
2.2 It is the case of the petitioner that there is no other earning member in the family of the petitioner and the entire family was fully dependent on the father of the petitioner, who unfortunately expired as aforesaid. That the petitioner himself was victim of Polio on left leg right from tender age of about 3 to 4 years.
2.3 That a representation was made by the petitioner on 27.05.2002 to respondent No.3 for being appointed the petitioner on compassionate ground. That thereafter the petitioner made requests to the respondent authority to consider the case of the petitioner for being appointed on compassionate basis as per the policy of the government. It is also the case of the petitioner that as the mother of the petitioner is illiterate and dependent on the petitioner, even case for family pension could not be expedited. That the respondent authorities have affected recovery towards arrears of rent amounting to Rs.2,25,970/ from the pension amount. It is specifically the case of the petitioner that respondent no.3 previously informed the petitioner that the case of the petitioner is under consideration for giving service on compassionate ground and the same can be considered only after making payment of arrears of rent of government quarter.
2.4 It further transpires from the record that the petitioner again vide communication dated 07.12.2009 made a representation to respondent No.3 for considering the case of the petitioner for compassionate appointment. The said representation/ application was replied by respondent No.3 vide communication dated 25.05.2010 whereby respondent No.3 informed the petitioner that considering the educational qualification of the petitioner, the petitioner is not eligible for getting appointment as peon and it was further inquired whether the petitioner is ready to work ClassIV Safai Kamdar. That the said letter was immediately replied by the petitioner vide communication dated 09.06.2010 expressing his willingness to work as Safai Kamdar. However, in the said letter the petitioner further requested that his case may be considered for other ClassIV posts like Canal Boy, Mess Cook, Ward Boy and Mali. That the said request of the petitioner was rejected vide communication dated 23.07.2010 stating therein that the petitioner is not possessing the requisite qualification of S.S.C. Examination and hence, the request of the petitioner for giving him service on compassionate ground cannot be considered. That again the petitioner made representation on 14.08.2010 reiterating his request for giving him appointment on compassionate ground on special case since he being a handicapped.
2.5 According to the petitioner, the petitioner fulfilled all the conditions for the appointment on compassionate ground, however, the request of the petitioner was rejected on the ground that the petitioner was not possessing requisite qualification of passing minimum qualification i.e. S.S.C. examination vide communication dated 04.09.2010. It is also averred that as per the policy of the compassionate appointment one of the heirs of the deceased is required to be given appointment. It is also averred that similar such cases have been considered by the respondent authorities and by not considering the case of the petitioner the respondents are acting in a discriminating manner and have taken contrary decision which is violative of Articles 14 and 16 of the Constitution of India.
3. Heard Ms.Shanu S. Pathan, learned Counsel for the petitioner, and Mr.Alkesh Shah, learned Assistant Government Pleader for the respondent authorities.
4. Ms.Pathan, learned advocate for the petitioner, has taken this Court through communication dated 25.05.2010 whereby the respondent authority had informed the petitioner that the petitioner was not eligible to be appointed as a Peon as he was not possessing requisite educational qualification. However, the respondent authority had inquired from the petitioner that whether he was ready and willing to work as Safai Kamdar. It was submitted that the said application was immediately replied and willingness was expressed by the petitioner. It was further submitted that even though the petitioner has not passed S.S.C. Examination i.e. 10th Std., inquiry was made by the respondent authority that whether the petitioner was ready and willing to work as Safai Kamdar and when the petitioner has already consented for the same the respondent authorities ought to have considered the case of the petitioner and and ought to have appointed the petitioner as per the policy of the government of compassionate appointment. It was also contended that the policy which prevailed on the date on which the father of the petitioner expired is to be taken into consideration while dealing with the application of the petitioner for compassionate appointment. No further contentions are raised by the learned counsel for the petitioner.
5. Per contra, Mr.Alkesh Shah, learned Assistant Government Pleader appearing on behalf of the respondents, invited attention to the affidavitin reply filed by respondent no.3 herein dated 12.01.2012. It was pointed out that family of the petitioner is being paid family pension to the tune of Rs.1,550/ p.m. It was also pointed out that as per the policy of 2005 adopted by the State Government the petitioner is not eligible for the post of Peon as the petitioner has not passed S.S.C. examination. It was further pointed out that in fact the petitioner has not submitted documents which were required to be submitted before the respondent authorities and in fact has not stated those facts in the present petition. It was, therefore, submitted that thus, the petition is devoid of any merits and same deserves to be dismissed.
6. From the facts narrated above, it is clear that when the application filed by the petitioner was under consideration for giving benefit of the government policy as regards compassionate appointment in the year 2009, minimum qualification for the post applied for by the petitioner for compassionate appointment as per the policy of State Government even for ClassIV employment was 10th S.S.C. It would be appropriate to quote Clause3 of the said policy, which reads as under :
“3. To be eligible for appointment by direct selection to the post mentioned in rule 2, a candidate shall:
(i) xx xx xx
(ii) have passed Secondary School Certificate Examination.
(iii) xx xx xx ”
7. At this stage, it would be appropriate to refer to the recent decision of this Court in the case of Pravinkumar Udaysinh Chauhan Vs. State of Gujarat being Special Civil Application No.7857 of 2011 wherein this Court (Coram : A.S.Dave, J.) has observed thus :
“15. The Apex Court in the case of State Bank of India & Anr. v. Raj Kumar [(2010)11 SCC 661] once again reiterated the nature and scope of claim and consideration of compassionate appointment and in paras 8 to 12 it is 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. On the other hand if a scheme provides that on the death of an employee, if a dependent family member is entitled to appointment merely on making of an application, whether any vacancy exists or not, and without the need to fulfill any eligibility criteria, then the scheme creates a right in favour of the applicant, on making the application and the scheme that was in force at the time when the application for compassionate appointment was filed, will apply. But such schemes are rare and in fact, virtually nil.
11. Normal schemes contemplate compassionate appointment on an application by a dependent family member, subject to the applicant fulfilling the prescribed eligibility requirements, and subject to availability of a vacancy for making the appointment. Under many schemes, the applicant has only a right to be considered for appointment against a specified quota, even if he fulfills all the eligibility criteria; and the selection is made of the most deserving among the several competing applicants, to the limited quota of posts available. In all these schemes there is a need to verify the eligibility and antecedents of the applicant or the financial capacity of the family. There is also a need for the applicant to wait in a queue for a vacancy to arise, or for a selection committee to assess the comparative need of a large number of applicants so as to fill a limited number of earmarked vacancies.
12. Obviously, therefore, there can be no immediate or automatic appointment merely on an application. Several circumstances having a bearing on eligibility, and financial condition, upto the date of consideration may have to be taken into account. As none of the applicants under the scheme has a vested right, the scheme that is in force when the application is actually considered, and not the scheme that was in force earlier when the application was made, will be applicable.
16. Recently, the Division Bench of this Court (Coram: Hon'ble Mr. Justice V.M. Sahai & Hon'ble Mr. Justice K.S. Jhaveri) in LPA No. 3047/2010, has observed as under:
“1. We have heard Mr. A.S. Supehia, learned appearing for the appellant and Mr. J.K. Shah, learned AGP appearing for the respondentState.
2. This intraCourt Letters Patent Appeal has been filed challenging the order of the learned Single Judge passed in Special Civil Application No. 12482 of 2010 as well as the communication dated 03.09.2009 by which the application of the petitioner for compassionate appointment has been rejected. The application of the petitioner for compassionate appointment was rejected on the ground that an amount of Rs.7,266/ was received by the family as family pension and monetary benefit to the tune of Rs.6,85,938/. Therefore, the petitioner did not deserve any compassionate appointment. The Hon'ble Apex Court has taken similar view in the case of Ghanshyambhai Dipabhai Dharjiya v. State of Gujarat & Ors. rendered in Special Leave to Appeal (Civil) No. 7702 of 2001, wherein the Apex Court has held has under : “The family pension of the petitioner is admittedly Rs.5,569/ and the petitioner has got retiral benefits to the tune of Rs.12,61,936/. The High Court has taken the view that the petitioner is not entitled for appointment on compassionate grounds. In our opinion, no interference is required. The Special Leave Petition is, accordingly dismissed.”
3. Therefore, we are not inclined to interfere with the impugned order passed by the authority or the learned Single Judge. Moreover, the new policy for compassionate appointment of the State has been enforced on 05.07.2011, but since the application of the petitioner for compassionate appointment has been rejected prior to the enforcement of the the new policy, the petitioner cannot claim compassionate appointment after the enforcement of the new policy of the State Government.
4. For the aforesaid reasons, we do not find any reason to interfere in this appeal. This appeal fails and stands dismissed accordingly. Notice discharged.
5. In view of disposal of appeal, Civil Application also does not survive and is accordingly dismissed.”
In view of the above, what was noticed by the Division Bench in the case of “STATE OF GUJARAT VS. BUDHABHAI CHAVDA”(Supra) was in fact the peculiar circumstances of inordinate delay caused in deciding the application for compassionate appointment preferred as early as on 30th December, 2001, and therefore, certain directions were issued by the Division Bench deprecating such callous attitude and indecisiveness of the authority.
17. Therefore, the decision in “STATE BANK OF INDIA & ORS. VS. JASPAL KAUR”(Supra) and “MUMTAZ YUNUS MULANI VS. STATE OF MAHARASHTRA”(Supra) and “STATE BANK OF INDIA & ANR. VS. RAJ KUMAR” (Supra) clearly empowered an authority to consider monthly family pension and retiral dues while considering the financial status of the family of the bereaved, and thus, the decision taken by the authority while denying the compassionate appointment to the applicant by taking into account the above factors in the case on hand, cannot be said to be in any manner illegal or unreasonable or contrary to provisions of Article 14 and 16(1) of the Constitution of India.
18. Thus, the contention that the scheme that is in force or prevalent when the application is actually considered, as canvassed by the learned AGP, will be in consonance with the decisions of the Apex Court in the case of “STATE BANK OF INDIA & ANR. VS. RAJ KUMAR”, wherein the Apex Court in no uncertain terms pronounced the law that the authority is to consider the application in light of the scheme which is in force and not the scheme that was in force or the earlier scheme.
19. In view of the above decisions of the Apex Court last in time, with due respect to earlier decisions, I am inclined to follow the ratio laid down by the Apex Court in the last decision as above.
20. In view of the discussion of the law, as declared by the Apex Court, decisions relied upon by the learned Counsel for the petitioner of a Division Bench of this Court in a group of cases and in case of such case an appeal preferred by the State Government will have no bearing over the facts”.
8. Considering the ratio laid down by this Court in the case of Pravinkumar Udaysinh Chauhan (supra) the respondent authorities have committed no error. The petition is, therefore, devoid of merits and the same deserves to be rejected summarily and hence, the same is hereby rejected. However, it would be open for the petitioner to approach the respondent authorities for the benefit of any lumpsum compensation as per the recent policy of the respondent authorities and if such an application is made the same shall be considered strictly in accordance with law as per the prevailing policy, without being influenced by the fact that the present petition is rejected. NOTICE discharged. No order as to costs.
M.M.BHATT Sd/ (R.M. Chhaya, J.)