(Per : HONOURABLE MR.JUSTICE V. M. SAHAI) 1. We have heard Mr. Niraj Ashar, learned Assistant Government Pleader appearing for the appellant.
2. This Intra-Court Letters Patent Appeal has been filed challenging the judgment and order dated 29.7.2011 passed by the learned Single Judge in Special Civil Application No.9209 of 2011 by which the learned Single Judge has directed the respondents to reconsider the case of the respondent No.1 for compassionate appointment on the basis of the policy which was prevailing at the time when the father of the respondent No.1 died.
3. The father of the respondent No.1died on 16.2.2005 and the application for compassionate appointment was filed on 10.3.2005 before the Policy was changed by the State Government by providing SSC Qualification in the matter of compassionate appointment by Notification dated 16.3.2005. The respondent No.2 rejected the application for compassionate appointment on 20.2.2006 on the ground of not passing S.S.C. examination by the respondent No.1. Thereafter, respondent No.1passed S.S.C. Examination in the year 2009 and again applied on 9.6.2009 for compassionate appointment. On 5.11.2009, the respondent No.2 rejected the application on the ground that in the first application, he had not passed S.S.C. Examination. Being aggrieved, the respondent No.1 preferred Special Civil Application No.9209 of 2011.
4. Learned Assistant Government Pleader Mr. Ashar has urged that the learned Single Judge could not have directed to reconsider the application of the respondent No.1 for compassionate appointment without taking into consideration the notification dated 16.3.2005. The findings of learned Single Judge in paragraphs 3 and 4 is extracted below :-
“3. In light of these facts, learned advocate Ms.Tejal Shah has raised contention before this Court that father of petitioner had expired on 16.2.2005 and notification which has been taken into account while deciding application of petitioner for compassionate appointment is dated 16.3.2005 which was subsequent to the death of father of petitioner. Therefore, case of petitioner is required to be considered on the basis of policy which was prevailing at the time of death of father of petitioner and not to consider subsequent policy.
4. Let this aspect may be re-examined by respondents and decide the application made by petitioner for compassionate appointment on the basis of the policy which was prevailing at the time when father of petitioner died and not to consider subsequent notification dated 16.3.2005 and then to pass appropriate reasoned order in accordance with law, within a period of 3 months from date of receiving copy of present order and communicate the decision to petitioner immediately.”
5. It has been held by the Apex Court in Abhishek Kumar vs. State of Haryana, (2006) 12 SCC 44. Para 5 of the said decision reads as under :-
“5. The appellant herein had sought for appointment on compassionate grounds at a point of time when the 2003 Rules were not in existence.
His case, therefore, was required to be considered in terms of the Rules which were in existence in the year 2001. Evidently, in the State of Haryna a Statewise list is maintained. In terms of the said list so maintained by the State of Haryana, the appellant was entitled to obtain an appointment on compassionate grounds. He was offered such an appointment by the State. It was the District Magistrate who came in the way and refused to provide for the post.”
6. In another decision in State of Gujarat and ors. vs. Jagdish Savji Padaya and anr, Special Leave to Appeal (Civil)..../2010 (CC 15498/2010), decided on 19.10.2010, the Apex Court has held as under:
“ O R D E R Delay condoned.
These petitions are directed against order dated 11.5.2010 passed by the Division Bench of the Gujarat High Court whereby the Letters Patent Appeals preferred by the petitioners against the orders of the learned Single Judge directing consideration of the cases of the private respondents for appointment on compassionate grounds as per the policy prevailing on the date of application were dismissed.
It is not in dispute that the applications/ representations made by the private respondents for appointment on compassionate ground as per the extant policy were kept pending for years together and were rejected on the ground that in terms of circular dated 29.3.2007, the minimum revised qualification is SSC pass, which qualification the private respondents did not possess.
The learned Single Judge allowed the writ petitions and directed consideration of the case of the respondents for appointment on compassionate ground as per the policy prevalent on the date of application. The Division Bench dismissed the Letters Patent Appeal filed by the petitioners and declared that the private respondents are entitled to have their cases considered in accordance with the extant policy and the decision contained in circular dated 29.3.2007 cannot be applied to their cases.
The Division Bench referred to the judgments of this Court inn Umesh Kumar Nagpal v. State of Haryana (1994) 4 SCC 138, Abhishek Kumar v. State of Haryana (2006) 12 SCC 44, State Bank of India and others v. Jaspal Kaur (2007) 9 SCC 571, V.Sivaramurthy v. State of Andhra Pradesh (2008)13 SCC 730 and State Bank of India v. Raj Kumar (2010 1 CLR 1027 and held that in the absence of any explanation by the petitioners as to why the applications of respondents were not considered for years together, the directions given by the learned Single Judge do not call for interference.
We have heard Ms.Hemantika Wahi, learned counsel for the petitioners and are in complete agreement with the Division Bench that the concerned competent authority was required to decide the applications for compassionate appointment within a reasonable time and the fact that no decision was taken for years together cannot operate to the disadvantage of the dependents of the deceased employee.
With the above observations, the special leave petitions are dismissed. The petitioners are allowed two months time from today to complete the exercise for consideration of the cases of the private respondents for compassionate appointment and pass appropriate orders.
In order to curb further litigation in such matters, we direct the Government of Gujarat to issue instructions to all the competent authorities to dispose of the applications for compassionate appointment within a maximum period of 6 months.”
7. From the aforesaid decisions, it is clear that the law laid down by the Apex Court is that earlier application for compassionate appointment has to be decided as per the scheme and educational qualification which was applicable at the time the application was made by the respondent No.1, claiming appointment on compassionate ground, if the authorities were guilty of unreasonable delay. The decision of the Apex Court in Jagdish Savji Padaya applies with full force to the instant case.
8. In our opinion, the learned Single Judge has not committed any error in directing the respondents to reconsider the application of the respondent No.1 for compassionate appointment on the basis of the Policy which was prevailing at the time of death of the father of the respondent No.1 i.e. 16.2.2005. In view of the aforesaid decision of the Hon'ble Apex Court, in our opinion, the learned Single Judge has rightly directed the State Government to consider the case of the respondent for compassionate appointment. The present appeal is devoid of any merits and is accordingly dismissed.
9. Since the appeal is dismissed, civil application does not arise and it also stands dismissed.
Sd/-
[V. M. SAHAI, J.] Sd/-
[G. B. SHAH, J.] Savariya