The petitioner has brought under challenge the order dated 21.12.2011 whereby his application seeking appointment on compassionate ground has been rejected.
2. So far as the facts involved in present petition is concerned, it emerges from the record that the father of present petitioner, who was in employment with the State Government, died on 6.12.2004 while he was in service. Thereafter, petitioner's mother made an application dated 18.1.2005 seeking appointment on compassionate ground. While the said application was pending for consideration before the competent authority, a notification dated 16.3.2005 was issued under which minimum requirement of educational qualification was prescribed. After the said notification was issued, the application made by present petitioner's mother was taken up for consideration and in light of the condition introduced vide notification dated 6.3.2005, the application was rejected by order dated 24.10.2005. Subsequently, petitioner's mother submitted a request letter dated 18.12.2005 requesting the competent authority to give appointment on compassionate ground to her son, i.e. present petitioner. However, as on the date of the application, the petitioner was minor, and therefore, the said request could not be accepted and consequently, under letter dated 17.10.2006, the said application was rejected. Thereafter, vide letter dated 28.12.2006, the petitioner again made application claiming that he had then become major and therefore, his application may be considered. The said application came to be rejected vide order dated 2.12.2010.
2.1 Aggrieved by the said decision, the petitioner preferred writ petition being Special Civil Application No.1316 of 2011. The said writ petition was disposed of by order dated 28.6.2011 whereby the Court directed the authority to consider petitioner's application in light of the policy declared vide GR dated 10.3.2000. It appears that after the said direction, the petitioner's application was again rejected vide order dated 21.12.2011.
2.2. Aggrieved by the said decision, the petitioner has preferred present writ petition.
3. Mr.
Pandit, learned advocate, has appeared for the petitioner. Mr. Pandit has submitted that the authorities illegally rejected the application made by the petitioner's mother on the ground that she did not possess necessary qualification. The authorities committed error in not considering that the condition as to qualification was not in operation at the time of death of petitioner's father or at the time when his mother made the said application. He further submitted that the authorities have also committed error in rejecting petitioner's application on the ground of limitation though the petitioner has cleared 12th standard examination.
3.1 Mr.
Pandit, learned advocate for the petitioner, in support of his above submissions, has relied on the order dated 14.12.2010 passed in L.P.A. No.2615 of 2010.
4. Ms. Chitaliya, learned AGP, has appeared on behalf of the respondents and resisted the petition. Learned AGP has heavily relied on the details mentioned in the affidavit dated 22.2.2012 in para 7 to 9, which read thus:-
"7. I say and submit that the Father of the petitioner was a State Govt. employee; he died on 06/12/2004, during tenure of his serice. Thereafter, mother of petitioner made an application dated 18/01/2005, seeking for a compassionate appointment. A copy of the said application dated 18/01/2005 is annexed herewith and is marked as Annexure R-I. I further say that during the pendency of said application General Administration Department has issued a Notification dated 16/3/2005. As per the said Notification, passing of Secondary Examination is a minimum requirement for appointment of class-IV employee. I further say that mother of the petitioner has not passed S.S.C. Examination and on that ground application of mother of petitioner was rejected by Gujarat Subordinate Staff Selection Board, Gandhinagar vide letter dated 24/10/2005 the same was informed to the applicant. A copy olf the said letter dated 24/10/2005 is annexed herewith and is marked as Annexure R-II.
8. I say and submit that there after mother of the petitioner has wrote a letter dated 18/12/2005 and requested Mamlatdar, Veraval to give Complassionate appointment to her son who was 17 years and 2 months old at the time of said request. A copy of the said letter dated 18/12/2005 is annexed herewith and is marked as Annexure R-III.
I further say that, as per the said letter petitioner has completed 18 years on 8/10/2006. However, looking to petitioner's age that is he being a minor, application of mother, for giving compassionate appointment to her son, was rejected by Gujarat Subordinate Staff Selection Board, Gandhinagar vide letter dated 17/10/2006. A copy of the said letter dated 17/10/2006 is annexed herewith and is marked as Annexure R-IV.
9. I further say that application of mother was thus rejected on the ground of requirement of minimum qualification and application of mother for giving appointment to petitioner was rejected on ground of age-bar. I say that it is clearly mentioned in clause 8(B) of G.R. dtd. 10/3/2000 of General Administrative Department that dependent of deceased cannot apply after 6 months from the date of death of an employee. Hence, application of petitioner was rejected. Then after again by letter dtd. 28/12/2006 petitioner applied to the Principal Secretary, Revenue Department for the same which was rejected on 12/10/2010. Being aggrieved petitioner filed writ petition being Special C.A.No.1316/2011 and Hon'ble Court has directed to reconsider as per clause 8(B) of the G.R. dtd. 10/3/2000 of General Administration Department.
After reconsidering the re-examining the case of petitioner in light of clause 8(B) and 6(2)(B), application of petitioner dtd. 28/12/2006 was rejected.""
5. I have considered the submissions made by learned counsel for the contesting parties and also the record and the policy on which the petitioner has placed reliance.
6. It appears that to some extent the grievance made with regard to rejection of application made by petitioner's mother, at the relevant time, was justified, inasmuch as either at the time of death of petitioner's father or on the date on which the application was made, the condition as to educational qualification was probably not in operation, as claimed by the petitioner.
7. However, since the said details are not available on record, it is not possible to make any observations on that count with certainty.
8. Even otherwise, subsequently, when the petitioner's mother forwarded application of her son, i.e. present petitioner, she waived her claim and right.
9. Furthermore, the decision rejecting her application does not appear to have been challenged at any point of time. Thus, on account of the said two developments, so far as the application of petitioner's mother is concerned, the same is now a closed chapter.
10. So far as petitioner's application is concerned, it has been rejected vide impugned order dated 21.12.2011.
11. The petitioner's earlier application was rejected vide order dated 2.12.2010 on the ground that he did not fulfill the prescribed criteria i.e. age related criterion. Now, so far as the order dated 21.12.2011 is concerned, it reiterating the same reason.
12. In this context, it is necessary to note at this stage that this Court has, in the order dated 14.12.2010 passed in L.P.A.No.2615 of 2010, observed, inter alia, that :-
"It is not in dispute that the appellant technically applied within time on 30th August 2005. If he was minor, the matter ought to have been kept pending by the respondents, as he was to attain majority within few months. It is also not in dispute that compassionate employment was required by one of the members of bereaved family. That ground having not taken in the order of rejection by the respondents, we are of the view that they should reconsider the case of the appellant for compassionate appointment.
For the reasons aforestated, while we are setting aside the letter dated 12th January 2009 issued by the 3rd respondent/competent authority and the order dated 24th February 2010 passed by the learned Single Judge in Special Civil Application No. 13658/2009, remit the case to the respondents/competent authority with a direction to consider the case of the appellant for compassionate appointment on merit within two months from the date of receipt/production of the copy of this Order."
13. It is clear that while passing the impugned orders, the authority has not taken into account the orders passed by the Division Bench. In view of the said order and other orders, the application made for petitioner's appointment on compassionate ground ought not have been rejected. If he was found to be minor, the application ought to have been retained, as held by the Division Bench instead of rejecting it.
14. Having regard to the aforesaid aspects and for the foregoing reasons, the impugned orders deserves to be set aside.
This Court, ordinarily, does not direct the competent authority to pass order granting appointment, including granting appointment on compassionate ground.
Therefore, appropriate direction, which can be passed, at this stage, in backdrop of aforesaid facts, is to direct the competent authority to consider the application of the petitioner for granting appointment on compassionate ground. Therefore, below mentioned order is passed:-
14.1 The respondent competent authority shall take up for reconsideration the petitioner's application seeking appointment on compassionate ground and shall pass appropriate orders in accordance with the relevant and applicable policy, however, keeping in focus the decision of this Court, reference whereof has been made in present order.
14.2 Appropriate and necessary decision shall be taken by the respondent competent authority within period of 8 weeks from receipt of certified copy of present order and the decision shall be conveyed to the petitioner.
With the aforesaid observations and direction, present petition stands disposed of. Rule is made absolute to the aforesaid extent. No order as to costs.
(K.M.Thaker, J.) kdc Top