The petitioner has taken out present petition seeking below mentioned reliefs/directions:- “(A) YOUR LORDSHIPS may be pleased to admit and allow this petition.;
(B) YOUR LORDSHIPS 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, quashing and setting aside the communication dated 09.08.2011 issued by respondent no.4 (Annexure-A);
(C) YOUR LORDSHIPS 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, quashing and setting aside the Government Resolution dated 5.7.2011 issued by respondent no.1 (Annexure-B);
(D) YOUR LORDSHIPS 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 to give compassionate appointment to the petitioner on the demise of his mother;
IN THE ALTERNATIVE
(E) YOUR LORDSHIPS may be pleased to issue an appropriate writ, order or direction, directing the respondents to give the financial benefits to the petitioner;”
2. Heard Mr. Arpit Kapadiya, learned advocate for the petitioner.
3. So far as the factual background involved in and giving rise to present petition is concerned, it emerges from the record that present petitioner’s mother was working as Class IV employee in the General Hospital run by Kamdar Rajya Vima Yojana, at Vadodara. The petitioner’s mother expired on 12.4.2011. Thereafter, on or around 12.5.2011, present petitioner made application seeking appointment on compassionate ground. He claimed that his father died even prior to his mother’s death and that he has one elder brother who has given No Objection if the petitioner’s case for appointment on compassionate ground were to be considered and accepted. He also claimed that neither he nor his brother is employed in Government or any Government organization or Semi-Government organization. The petitioner has also claimed that his application was forwarded by the respondent No.4 to the respondent No.3 and the Superintendent, General Hospital also recommended his case for appointment on compassionate ground. The petitioner has then claimed and alleged that under the impugned communication dated 9.8.2011 his application came to be rejected on the ground that his case was not covered within the scope of Government Resolution [hereinafter referred to as “the GR”] dated 5.7.2011.
3.1 In backdrop of such facts, the petitioner has challenged the communication dated 9.8.2011 and has also challenged the GR dated 5.7.2011. The petitioner has also prayed for directions to the respondents to give appointment to the petitioner on compassionate ground in view of the death of his mother while in employment.
4. Mr. Kapadiya, learned counsel for the petitioner, has submitted that the Resolution dated 5.7.2011 is arbitrary and unreasonable and also unjust. He also claimed that the said GR is bad in law because Government has made sudden departure from the erstwhile policy of providing compassionate appointment and that the policy is against the principles of resonableness and fair administration. It is necessary to mention that although in para- 8(B), the petitioner has prayed that the communication dated 9.8.2011 may be set aside, the respondent has, however, not mentioned any ground of challenge against the said communication in the petition nor any ground assailing the said communication have been urged during the hearing. Any other grounds of challenge are not raised in support of the relief and directions prayed for.
4.1 So far as the petitioner’s challenge against the GR dated 5.7.2011 is concerned, it is settled position that appointment on compassionate ground is not matter of right and that therefore, the petitioner’s challenge to the GR dated 5.7.2011 cannot be sustained since the said GR, which is in nature of policy of the respondent Government, does not affect and/or abridge or violate, in any manner, any right of the petitioner.
Besides this, whether to provide for appointment on compassionate ground or not, is purely a matter of policy and Court would be loath to interfere with the respondent Government’s right to frame and declare a policy or to not make and pronounce any policy making provision for appointment on compassionate ground.
The right to take decision to pronounce a policy or not or to provide/announce any policy or what type of benefit may be provided for and what should be the eligibility criteria is within the domain and province of Government and the Court would not direct the respondent Government to make and declare a particular policy or to not to discontinue a policy if it is found appropriate by the respondent Government to discontinue particular policy. What should be the contents of the policy are within discretion and realm of the Government with which the Court would not be justified in interfering.
In present case, the Government has come out with particular policy which extends benefits as considered appropriate by the State Government.
The policy announced vide GR dated 5.7.2011 is brought in force by discontinuing / substituting the erstwhile policy. The decision to discontinue the erstwhile policy and to substitute it by another policy, is matter of policy decision and is within the domain and province of the respondent Government and the Court would not be justified in interfering with the said policy decision and/or in directing the Government to not to introduce new policy and/or discontinue the erstwhile policy or to substitute the erstwhile policy with new policy.
Besides this, the learned counsel for the petitioner could not establish any ground to demonstrate that the policy is, in any manner, discriminatory.
Thus, the challenge raised by the petitioner against the GR dated 5.7.2011 is not sustainable and hence, the same is not accepted.
4.2 Now, so far as the petitioner’s challenge against the communication dated 9.8.2011 is concerned, a glance at the said communication shows that it does not contain any decision, much less a decision completely rejecting the petitioner’s case.
On the contrary, the competent authority has returned the petitioner’s request/application to the authority who forwarded the application, for taking necessary action thereon in light of and in consonance with the policy declared vide GR dated 5.7.2011 and that therefore, at this stage, any question of setting aside the said communication dated 9.8.2011 does not arise.
If the petitioner does not want to avail benefit available under GR dated 5.7.2011 then, it is matter of his choice, however, the communication dated 9.8.2011 does not contain any decision which deserves to be set aside.
4.3 So far as the relief prayed for by the petitioner in para 8(D) is concerned, the said relief or direction cannot be granted inasmuch as vide GR dated 5.7.2011, as a glance at the preamble of the said GR would show, the policy of granting appointment on compassionate ground is discontinued. In absence of policy to grant appointment on compassionate ground, the direction as prayed for cannot be granted.
4.4 This leaves behind the alternative prayer made by the petitioner in para 8(E). The petitioner has, in the alternative, claimed that the financial benefit may be granted to him.
5. On this count, it is necessary to note, at the outset, that the petitioner claims to have submitted No Objection from his elder brother, however, it appears that his elder brother expressed his No Objection if the petitioner’s case for appointment on compassionate ground was to be considered and granted. It is, however, not clear at this stage, as to whether the No Objection expressed by the petitioner’s brother is with reference to and /or applies to the existing and prevailing policy declared vide GR dated 5.7.2011 or not. Hence, the petitioner shall have to, in the first instance, clarify the aforesaid aspect before the Competent Authority.
Furthermore, as the communication dated 9.8.2011 suggests and clarifies, the petitioner’s request has been returned by the Competent Authority to the first authority who forwarded petitioner’s application for consideration, with instructions to do needful in accordance with the GR dated 5.7.2011.
Therefore, necessary steps in connection with petitioner’s application will obviously be taken by the first authority.
Nonetheless, to remove any apprehension or doubt, it is hereby clarified that it would be open to the petitioner to submit in writing clarification to the First Authority that he is ready and willing to accept the benefit flowing from and available under the GR dated 5.7.2011 and also to submit written No Objection from his brother and other heirs/legal representatives of the deceased employee declaring that if the benefit flowing from the scheme are extended to and made available to the petitioner, then, they do not have any objection.
After the petitioner provides the above mentioned clarification and details to the First Authority, then, the First Authority may, after examining the petitioner’s application, and if it is found to be in order and complying with all requirements, take necessary steps to ensure that appropriate decision thereon is taken in accordance with the terms & conditions contained in the GR dated 5.7.2011 (including the limitation prescribed for submitting the application) by the Competent Authority within reasonable time and preferably within 4 months after all formalities are completed by the petitioner.
With the aforesaid clarifications and observations, the petition is disposed of.
(K.M.Thaker, J.) kdc