(Per : HONOURABLE MR.JUSTICE D.H.WAGHELA) 1. By the present appeal under Clause 15 of the Letters Patent, the appellant has sought to challenge judgment dated 30.01.2012 of learned single Judge in SCA No.15669 of 2011. The facts of the case are that the father of the appellant, while serving as a Police Bandman, passed away on 19/05/02 because of cancer. The entire family consisting of his mother, grandmother, wife, three daughters and two sons, was fully dependent on the father of the appellant. He made an application for compassionate appointment on 27.5.2002, even as their case for family pension was not expedited as a recovery of Rs.2,25,970/- was effected for being unable to vacate the government quarter; and till then, consideration of the application for appointment was kept pending. Pursuant to requests and representations, the appellant was informed on 25.5.2010 that he was not eligible for such appointment even as safai kamdar, canal boy, ward boy or mali as he had not passed S.S.C. examination. He also made representation to be appointed for being handicapped.
2. Thus, on 27.05.2002 a representation was made by the appellant to respondent No.3 for being appointed on compassionate ground as per the policy of the Government. Thereafter, several requests were made by the appellant to the respondent authority in that behalf. Respondent No.3, however, informed the appellant that his case was under consideration but the same could be considered only after the appellant making payment of arrears of rent amounting to Rs. 2,25,970/- of Government quarter. The appellant, again vide communication dated 07.12.2009 made a representation to respondent No.3 for considering his case for compassionate appointment. By communication dated 25.05.2010, respondent No.3 informed the appellant that considering his educational qualification, he was not eligible for getting appointment even as peon and it was further inquired whether the appellant was ready to work as class-IV safai kamdar. The appellant by his communication dated 09.06.2010 expressed his willingness to work as safai kamdar. In the said letter the appellant further requested that his case may be considered for other class-IV posts like canal boy, mess cook, ward boy or mali. On 23.07.2010 the request of the appellant was rejected by the respondent stating that the appellant was not possessing the requisite qualification of S.S.C. examination and hence, his case cannot be considered. Thereafter several representations were made by the appellant but they were rejected on the aforesaid ground.
3. As recorded in the impugned order, the application of the appellant was not considered for giving benefit of the scheme for compassionate appointment in the year 2009 and as per the policy prevailing at that time, the minimum qualification for the post applied for by the appellant, even for Class-IV employees, was S.S.C. The court relied upon recent decision of learned single Judge of this Court in Pravinkumar Udaysiunh Chauhan v. State of Gujarat (SCA No.7857 of 2011) which, in turn, relied upon decision of the Apex Court in State Bank of India v. Rajkumar [(2010) 11 SCC 661] and Division Bench of this Court in LPA No.3047 of 2010 so as to accept the view that the authority was required to consider the application in light of the scheme which was in force.
4. In another group of LPAs decided on 11.5.2010 by Division Bench of this Court, the issue was: Whether the policy of the government for compassionate appointment, prevalent at the time of application for compassionate appointment, should govern the decision, or whether the policy and the recruitment rules as prevailing at the time the government decides to grant or not to grant compassionate appointment should be applicable? After detailed discussion of law on the subject, including decision of the Apex Court in State Bank of India v. Rajkumar (supra), it was held that delay or default in considering the applications for compassionate appointment could not be allowed to be used for escaping the responsibility of considering the applications at the appropriate time and as early as practicable, in view of the purpose and policy of granting such appointments. And, since appointment on compassionate ground is an exception to the general rule and the constitutional policy embodied in Articles 14 and 16, exception also has to be made in application of the recruitment rules prevalent at the time of considering the case for appointment on compassionate grounds, because in each of the cases the appellants clearly appeared to have taken years in considering the applications before rejecting the applications on the basis of revised policy which was not in existence at the time the applications were made and the original applicants had certainly become entitled to consideration for compassionate appointment. In the facts of those cases, the applications made in the years from 1991 to 2006 were kept pending without any positive response for two to ten years by the authorities, by which time new G.R. dated 10.3.2000 to announce new policy had come, expressly with prospective effect, with the clarification that the cases of death prior to that date would be governed by the scheme prevalent at the relevant time. Under such circumstances, the attempt at defeating the claims of the original applicants by placing reliance upon subsequent G.R. dated 29.3.2007 was not countenanced. That judgment dated 11.5.2012 was carried in appeal to the Supreme Court in S.L.P.(C) No.15498/2010 and the Supreme Court has observed that Their Lordships were in complete agreement with the Division Bench that 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.
5. As seen earlier, in the facts of the present case, the appellant was, prima facie, fulfilling all the requirements for consideration of his application made on 27.5.2002 and it was a genuine case of distress when even the government accommodation provided to the family of the deceased could not be vacated which resulted into recovery of Rs.2,25,970/- from the family pension. Under such circumstances, the plea of the respondents contained in communication dated 25.5.2010 that the appellant was not eligible for appointment on any post due to lack of educational qualification required under the rules could not be sustained. It was also submitted at the bar that, by now, the appellant had also acquired necessary educational qualification of S.S.C. and he was prepared to work on the lowest post, even as safai kamdar.
6. In the fact facts and for the reasons discussed hereinabove, the appeal is allowed, the impugned order of learned single Judge is set aside and the respondents are directed to expeditiously process the original application dated 27.5.2002 in accordance with the scheme for compassionate appointment prevailing at that time and as far as may be offer appointment to him preferably within a period of one month. In the peculiar facts and circumstances, the respondents are directed to pay to the appellant, by way of cost, Rs.5,000/- within a period of one month.
(KMG Thilake) Sd/-
( D.H.Waghela, J.) Sd/ ( G.B.Shah, J.)