1. By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs:-
"(A) Admit and allow the present petition;
(B) Your Lordships may be pleased to direct respondent authorities of the State of Gujarat to consider the case of the petitioner and give compassionate appointment in accordance with the policy applicable at relevant point of time i.e. prior to 10.03.2000 as stated by respondent No.4 at Annexure-I(Colly) as expeditiously as possible and without any delay with all the benefits attached therewith in the interest of justice;
(C) During pendency and or final disposal of the present petition your lordships may be pleased to direct respondent authorities of the State of Gujarat to give adhoc appointment to the petitioner along with all the necessary benefits.;
(D) Your lordships may be pleased to hold and declare that the delay of more than 3 years caused by the respondent in not deciding the application of the petitioner for compassionate appointment, besides depriving and prejudicing interest of petitioner is violative of article 14,16 and 21 of the Constitution of India and thus same is arbitrary, illegal and unconstitutional.
(E) Your lordships may be pleased to direct respondent authorities of the State of Gujarat to consider the case of petitioner sympathetically and offer her compassionate appointment considering a special case on account of her unfortunate circumstances in the interest of justice;
(F) Other and further orders in the interest of justice be passed."
2. The facts arising out of the petition can be summarised as under.
2.1. That father of the present petitioner-Shri Visamanbhai Herma was working as clerk in the office of Mamlatdar at Taluka: Vanthali, District: Junagadh. The father of the petitioner expired on 20.07.1991, when the petitioner was hardly one and few months old. On the death of the father of the petitioner, mother of the petitioner-Smt.Dahiben Visaman Herma was nominated as the legal heir of deceased-Shri Visamanbhai Herma. It transpires from the record that on 30.08.1994, mother of the petitioner- Smt.Dahiben Visaman Herma remarried and at present, she is staying at Mangrol, District: Junagadh. According to the petitioner, family pension fixed by the respondent-authorities, was also paid to said Smt.Dahiben Visaman Herma. It transpires from the record that on remarriage of the mother of the petitioner, the present petitioner looked after by her uncle-Shardul B. Herma, who is appointed as a guardian of the petitioner. It further reveals from the record of the petition that on 04.06.1997, uncle of the petitioner-Shardul B. Herma filed an application on behalf of the petitioner for being considered for appointment on compassionate basis. However, at that time, as the petitioner was minor, the said application was not entertained and the petitioner was so intimated by the concerned department of the State Government vide communication dated 11.12.1997. It appears that the petitioner attained majority on 07.03.2008 and by application dated 07.03.2008, the petitioner applied for being considered on compassionate appointment. The record of the petition also reveals that the petitioner is a commerce graduate and on the date, on which the present petition was filed, the petitioner was pursuing her studies of LL.B. As the case of the petitioner for being considered for compassionate appointment was not considered, the present petition is filed.
3. In response to the notice issued by this Court, the respondent-authorities have filed their reply and have pointed out that the application filed by the petitioner was rejected vide order dated 25.01.2012. It is pointed out in the affidavit-in-reply that, in fact, on the sad demise of the father of the petitioner in the year 1991, the mother of the petitioner could have applied for compassionate appointment. It is specifically pointed out that on remarriage of the mother of the petitioner in the year 1994, family pension of Rs.5630/- per month is paid to the petitioner. It is pointed out that as averred by the petitioner that the case of the petitioner for compassionate appointment is to be considered as per policy dated 10.03.2000 is incorrect and, in fact, the same has to be considered as per the policy prevailing. It is further pointed out that on remarriage of the mother of the petitioner, uncle of the petitioner-Shardul B. Herma, who happens to be the younger brother of the father of the petitioner, is the legal guardian of the petitioner and an affidavit to that effect is also filed by said Shardul B. Herma, who was working as Deputy Mamlatdar in District Junagadh and receives pension of Rs.10,000/- per month on his superannuation.
4. Mr.N.D.
Parekh, learned counsel appearing for the petitioner however, submitted that though it is true that the petitioner is receiving the amount of Rs.5630/- per month as family pension, the same could be discontinued as soon as she gets married. Mr.Parekh, learned counsel further submitted that the case of the petitioner at least be considered for lumpsum compensation as provided under the prevailing policy of the State Government as per the Resolution dated 05.07.2011.
5. Per contra, Mr.Alkesh Shah, learned A.G.P. for the respondents submitted that the petitioner is receiving amount of Rs.5630/- per month by way of family pension and, therefore, element of 'die in harness' is not present in the case of the petitioner. Mr.Shah, learned A.G.P. further pointed out that as averred in the affidavit-in-reply filed by the respondents, the petitioner is being looked after by her uncle, who was also a Government servant and receives amount of Rs.10,000/- per month by way of pension.
6. Considering the averments made in the petition as well as in the affidavit-in-reply and considering the submissions made by both the learned counsel, it is an admitted position that the petitioner, as a daughter of late Shri Visamanbhai Herma, receives amount of Rs.5630/- per month and, therefore, element of 'die in harness' is totally absent in the present case. The compassionate appointment is not a matter of right. However, the same is provided by way of benevolent scheme and/or also by the Government to see that the sad demise of the person working with the Government may not result into difficulties of survivors. The compassionate appointment and/or even lumpsum compensation, as provided by the prevailing policy of the State Government, declared vide its Resolution dated 05.07.2011, is not an alternative mode of getting recruitment or compensation as a matter of right.
7. Considering the facts of the present case, the petitioner is looked after by her uncle, who himself was a Government servant of the level of Mamlatdar and the petitioner stays with her uncle, who receives pension of Rs.10,000/- per month. Even from the averments, the petitioner is a commerce graduate and is pursuing her studies of laws. It is however, required to be noted that the father of the petitioner-Shri Visamanbhai Herma died way back in the year 1991. Even if it is considered that the petitioner attained majority in the year 2008, as the petitioner is looked after by her uncle and, as she receives amount of Rs.5630/- per month as family pension, it cannot be said that the petitioner is not able to survive. On perusal of the order dated 25.01.2012, passed by the State of Gujarat in Revenue Department, the authorities have considered all the relevant aspects and have rightly come to the conclusion that the financial condition of the petitioner cannot fall in the category of poor and the authorities have, in fact, rightly come to the conclusion that the compassionate appointment which is based on the principle of 'die in harness' is totally absent in the case of the petitioner.
8. Consequently, the petition fails and the same is hereby rejected in limine. No order as to costs.
(R.M.CHHAYA, J.) Hitesh Top