The petitioner has taken out present petition seeking below mentioned relief/direction:- “15(A) That Your Lordships be pleased to issue a writ of mandamus and/or order in the nature of certiorari and/or any other writ, order or direction by quashing and setting aside the impugned order dated 30.12.2008 at Annexure G passed by Respondent No.4 and dated 27.07.2009 at Annexure – H passed by Respondent No.2, being dehorse the provisions of Government Resolutions dated 10.03.2000, 07.09.2002 and 29.03.2007 at Annexure A, B and C and in contravention of directions of this Hon'ble Court rendered in SCA No.1316 of 2022 dated 28.06.2011 at Annexure-K, in LPA No.2615 of 2010 in SCA No.13658 of 2009 dated 14.12.2010 at Annexure-I and SCA No.9908 of 2011 dated 18.08.2011 at Annexure-J and further be pleased to declare the impugned decisions at Annexure G and H as illegal, arbitrary, capricious and to pass appropriate writ, order or direction upon concerned authorities to reconsider the case of the petitioner for the post of Junior Clerk Grade-III on compassionate ground in light of above stated Government Resolutions at Annexure-A, B and C and orders passed by this Hon'ble Court at Annexure-I, J and K, in the facts and circumstances of the case and in the interest of justice, equity and fair play.”
2. The petitioner is aggrieved by the decision of the respondent authorities of rejecting her application seeking appointment on compassionate ground. The orders dated 30.12.2008 and 20.7.2009 are under challenge in present petition.
3. So far as the relevant details involved in present petition are concerned, it emerges from the record that the petitioner's father was serving in Pension Payment Office at Ahmedabad. Her father died on 29.4.2006, while in service.
3.1 It is claimed that the petitioner and her mother were not aware about and were also not informed about the policy of granting appointment on compassionate ground and the requirement to make an application for the said purpose. It is also claimed that it was only when one of the relatives of the petitioner informed them about such policy and requirement to make application, that an application dated 30.5.2006 (page 57) came to be made by the petitioner.
The respondent authorities returned her application (page 64) at the relevant point of time.
The learned counsel for the petitioner has claimed that the application was returned on the ground that the petitioner was minor and therefore, she could not have made the application.
The petitioner has also claimed that at the relevant point of time the respondent No.3 while returning the application, vide said communication dated 28.6.2006 to the respondent No.4, also sought certain information.
In the said communication, it was also instructed that the petitioner should have completed 18 years of age and should possess minimum prescribed qualification for appointment on compassionate ground on post in Class III or Class IV.
The learned counsel for the petitioner has claimed that, however, any intimation or information was not forwarded to the petitioner until 30.12.2008 when she received the order informing her about rejection of her application. (The said order is not available on record).
The petitioner has claimed that thereafter, she approached the respondent No.5 with a request for help/assistance and reconsideration of her application.
The learned advocate for the petitioner has also claimed that the respondent No.4 forwarded a recommendation letter to the respondent No.2, however, the respondent No.2 under communication dated 27.7.2009, which is impugned in present petition, informed the petitioner that her application cannot be considered as she had not made application within 3 months, as per the condition prescribed under the GR dated 10.3.2000. Accordingly, petitioner's application was again rejected.
3.2 The petitioner, in support of her case, has placed reliance on order dated 14.12.2010 passed by the Division Bench in LPA No.2615 of 2010 to contend that her application, while she was minor, could not have been rejected, but it ought to have been retained until she become major and immediately thereafter, her application should have been taken into consideration. The petitioner has also relied on the decision dated 18.8.2011 rendered in Special Civil Application No.9908 of 2011 in case of Nishithkumar Harjivanbhai Rankja v. State of Gujarat & Ors. The petitioner has alleged that the order dated 27.7.2009 and the order dated 30.12.2008 have been passed without application of mind to the relevant facts and circumstances and relevant provisions of the policy and the impugned orders are contrary to the decisions passed by the Court.
4. Mr. Pandit, learned advocate, has appeared for the petitioner and to support his submissions challenging the impugned orders, heavily relied on the decisions dated 14.12.2010 in LPA No.2615 of 2010, dated 18.8.2011 in SCA No.9908 of 2011 as well as dated 28.6.2011 in SCA No.1316 of 2011. He has reiterated the contentions raised in the petition viz. that the impugned orders are passed without proper and due application of mind and they are contrary to the provisions under the Scheme besides being arbitrary and unjustified. He has also submitted that the impugned orders ignored the purpose and object of the Scheme. He submitted that the impugned orders deserve to be set aside and the respondents are directed to grant appointment to the petitioner on suitable posts on compassionate ground.
5. 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 1.2.2012 in para 6, 7 and 9 which read thus:-
“6. I say and submit that the father of the petitioner was serving with the office of Pension Payment Office at Ahmedabad i.e. respondent no.4. The father of the petitioner passed away on 29.4.2006 while he was in service. The petitioner therefore made an application for compassionate appointment on 30.5.2006 and the same was forwarded to the Head Office i.e. DIRECTOR OF ACCOUNTS AND TREASURY, GANDHINAGAR i.e. respondent No.3.
vide letter dated 31.5.2006. At the time of making an application, she was minor. Therefore, the application of the petitioner was rejected on 28.06.2006 on the ground of not having attained the majority as per clause 8(b) of the policy of the State Government dated 10.3.2000. The petitioner thereafter made another application dated 21.5.2008 which was received to the respondent on 2.6.2008 and in turn, the same was forwarded to the Gujarat Subordinate Service Selection Commission, Gandhinagar, who rejected the said application vide order dated 20.11.2008. The commission thereafter sent the said order to the respondent no.3 on 22.12.2008 and in turn the respondent no.3 informed the answering respondent that the application of the petitioner was rejected on the ground that the petitioner was not having the minimum age at the time of making application within the prescribed time limit i.e. six months from the date of death of deceased employee as per the G.R. dated 10.3.2000 & 07.07-09-2002 of G.A.D. Thereafter, on 30.12.2008 the respondent no.4, has informed the petitioner regarding the rejection of the said application on the ground mention therein.
7. I say and submit that a letter dated 8.7.2009 was addressed by one Shri Mayur Dave, Chairman, Revenue Committee, Ahmedabad Municipal Corporation to the Hon'ble Chief Minister for considering the petitioner's application seeking appointment on compassionate ground as a special case. The said request was turned down by the Finance Department i.e. Respondent No.2, vide its order dated 27.7.2009. It also recorded the reference of letter dated 30.12.2008 issued by respondent no.4 to the petitioner informing about the rejection of petitioner's request.
9. I say and submit that the object of the Scheme of compassionate appointment is to bring the family out of financial crisis upon the said and sudden demise of the deceased employee during the course of his employment. I further submit that it is undisputed fact that when the petitioner made an application, she was minor and not having attained the age of majority which is the minimum criteria for securing the public employment. The G.R. dated 10.3.2000 clearly stipulates in clause 8(b) that to bring the family out of financial crisis upon the demise of the deceased employee, the appointment can be offered to the dependent who satisfies the requisite qualifications as prescribed for the post of Class-III and IV category and in no circumstances the authority will wait for the attainment of majority age of the minor dependent of deceased employee. Therefore, the respondent authority has rightly rejected the application of the petitioner relying upon the aforesaid condition.”
5.1 Learned AGP also submitted that the application made by the petitioner in 2008 was second application, which is not permissible. She also submitted that the application ought to have been made within 3 months, however, the application was not made within the time permitted by the Scheme. She also submitted that once the application is rejected, the authority cannot reconsider it. She, as her last submission, also contended that now the Scheme has been withdrawn and it is substituted by another Scheme and that therefore, the application made for appointment on compassionate ground is not sustainable.
6. 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.
7. It emerges from the record that the petitioner's father expired on 29.4.2006. The date of birth of present petitioner, as per School Leaving Certificate, is 11.4.1990. Thus, at the time of death of petitioner's father, the petitioner was minor. However, immediately after petitioner's father's death, she had forwarded an application dated 31.5.2006 whereunder the petitioner requested for appointment on compassionate ground.
7.1 It is not in dispute that the said application was returned by the authorities on the ground that on the date on which the petitioner made application, she was minor.
7.2 The said decision and action of the respondent authorities is not in consonance with the order passed by the Division Bench in LPA No.2615 of 2010. In the said order dated 14.12.2010 in LPA No.2615 of 2010, the Division Bench observed 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.”
8. It emerges from the record that the petitioner herein had submitted her application on 30.5.2006 (which was well within time as per the limit prescribed by the Scheme), which came to be rejected vide order dated 30.12.2008.
At this stage, it is relevant to note that having regard to the petitioner's School Leaving Certificate, the petitioner's birth date is 11.4.1990.
Thus, the date on which her application came to be rejected vide order dated 30.12.2008, she had become major and that therefore, there was no justification in rejecting her application on 30.12.2008. However, without assigning any sustainable or acceptable reasons, the competent authority rejected her application in December-2008.
Besides the aforesaid aspect attached to the rejection order, another aspect connected with the said rejection order is that it is not in consonance with the orders passed by this Court of which reference is made hereinabove earlier.
8.1 Subsequently, vide order dated 27.7.2009, the petitioner came to be conveyed that application made after 3 months cannot be entertained. It is pertinent to note that when the petitioner made her first application, it was made within the prescribed time limit after her father's death. The learned counsel for the petitioner has alleged and asserted that, the petitioner was not conveyed any decision and even the communication dated 28.6.2006 was not sent to her and then in December-2008, the petitioner was informed about the rejection. Therefore also, the reason on which the petitioner's application came to be rejected vide order dated 27.7.2009 is not justified.
9. 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:-
9.1 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.
9.2 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