RULE.
Mr.Niraj Sharma, learned Assistant Government Pleader appears and waives service of rule on behalf of the respondents. With the consent of the parties, the matter is taken up for final hearing and disposal today.
By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs:
"(A) Your Lordship may be pleased to admit and allow this writ petition;
(B) Your Lordship may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction directing the respondents either to give compassionate appointment in the Respondent Department on the place of his late father who expired in the year 2003 or to make payment of lump-sum amount in view of the Circular issued by the Government dated 05.07.2011, in the interest of justice;
(C) By way of interim relief and pending this petition, be pleased to direct the Respondents to reconsider the case of the petitioner for compassionate appointment, as there is no earning member in the petitioner's family and the petitioner is having responsibility of maintaining his grandparents as well as two younger brothers.
(D) To pass such other and further order/s necessary in the interest of justice."
The facts which emerge from the record of the case are that father of the petitioner late Shamalsinh Badarji Waghela was serving as peon with respondent No.3. That while in service the father of the petitioner left for heavenly abode on 03.10.2003, leaving his mother, old parents as well as three children, including the petitioner, who is the eldest in the family. That as the date of birth of the petitioner is 15.11.1989, he was minor still, however, he applied for compassionate appointment as per the policy of the respondent-State, which application came to be rejected vide communication dated 06.11.2003. That again an application was made by the petitioner on 15.11.2007, on attaining majority, for compassionate appointment. As nothing was done in the said application, vide communication dated 06.04.2009 the petitioner reiterated the said request, which culminated into an order of rejection, which came to be communicated to the petitioner vide communication dated 02.07.2009. That again by an application dated 11.07.2011 the petitioner approached the respondent authorities to consider the case of the petitioner as per Government Resolution dated 05.07.2011 whereby the State Government has formed a policy of giving lump-sum compensation in lieu of compassionate appointment. As the said application was not adhered to by the respondent authorities the present petition is filed.
Heard Mr.A.V.Prajapati, learned advocate for the petitioner, and Mr.Niraj Sharma, learned Assistant Government Pleader, who appears on advance copy on behalf of the respondent authorities.
Vide order dated 24.01.2012 this Court directed the respondents to file affidavit-in-reply and accordingly the affidavit-in-reply was filed by respondent No.1, which is part of the record of the present petition.
Mr.Prajapati, learned advocate for the petitioner, candidly submitted that in fact the earlier application dated 15.11.2007 was replied/rejected by the respondent authority vide communication dated 02.07.2009. However, at that time the respondent authority did not inform that the petitioner does not fulfill the requisite qualification as per the policy as existing then viz. that the petitioner had not cleared SSC examination, which is one of the requisite qualifications for being considered for compassionate appointment. It was further submitted that if the said discrepancy would have been pointed out in the communication dated 02.07.2009 the petitioner could have opted for further studies and would have cleared the SSC examination whereby he would have been eligible for compassionate appointment as per the said government policy.
Per contra, Mr.Niraj Sharma, learned Assistant Government Pleader, submitted that the respondent authority had communicated the decision vide communication dated 02.07.2009, which is admitted by the petitioner. The said communication has neither been challenged by the petitioner and only because the reason for which the application was rejected was not communicated it cannot be said that the petitioner was not having knowledge of the fact that he did not possess the requisite qualification i.e. SSC. It was further submitted that as the earlier application has been rejected, as per Clause-6 of Government Resolution dated 05.07.2011 the case of the petitioner cannot be reconsidered.
Considering the submissions made by the learned counsel for both sides, it is an admitted position that the decision dated 02.07.2009 was not challenged by the petitioner and the petitioner was fully aware that he has not cleared SSC examination, as candidly admitted by the learned advocate for the petitioner and, therefore, it cannot be said that a new ground has now been brought on record by the respondent authority or that the reason is added to the order of rejection dated 02.07.2009. As the petitioner was aware about such a requirement even without rejection, he could have cleared the SSC examination even while earlier application filed on 15.11.2007 was under consideration. Similarly, bare reading of Clause-6 of Government Resolution dated 05.07.2011 clearly stipulates that cases of giving compassionate appointments to the members of the dependent families of the deceased Class-III and Class-IV employees which have already been rejected, shall not be reconsidered under this scheme. Therefore, considering the facts of the present case that earlier applications filed by the petitioner were rejected in the years 2003 and 2007, as aforesaid, the case of the petitioner for being reconsidered as per the policy dated 05.07.2011 of the State Government cannot be accepted and the respondent authorities cannot be directed to re-consider the case of the petitioner as per Government Resolution dated 05.07.201. It further transpires from the record that the petitioner was well aware about rejection of his application by way of communication dated 02.07.2009 (Annexure-E) and it also transpires that only after a new policy of lump-sum compensation is formulated by the State Government, a fresh attempt is made by the petitioner vide application/ communication dated 11.07.2011. However, Clause-6 of Government Resolution dated 05.07.2011, as discussed hereinabove, debars the petitioner from getting benefit of lump-sum compensation as envisaged under the said scheme of the State Government. The petitioner cannot be given benefit of the same.
In view of the above, the petition is devoid of any merits and hence, the prayers prayed for in the present petition cannot be granted. Accordingly, the petition stands dismissed. There shall be no order as to costs.
Sd/-
[ R.M.CHHAYA, J] *** Bhavesh* Top