1. By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs: “(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 any other appropriate writ, order and/or direction quashing and setting aside the communication/reply dated 30/7/2009 at AnnexureD sent and signed by the respondent no.2 rejecting the application made by the petitioner being unjust, unfair, unconstitutional and violative of fundamental rights and principle of natural justice and direct to the respondents to give appointment on compassionate ground.
(C) Pending admission hearing and till the final disposal of the present petition, Your Lordships may be please to pass the order to reconsider the case of the petitioner and stay the communication/reply dated 30/7/2009 at AnnexureD.
(D) The cost of the present petition may be awarded for the reason stated hereinabove.
(E) Your Lordships may be pleased to grant such and further relief/s as are deemed just, fit, proper and necessary in the interest of justice.”
2. The short facts which can be carved out from the record of the petition are that the father of the petitioner late Maganbhai Bhagvanbhai Chavda was working as a daily wager with respondent No.2. It transpires from the record that late Maganbhai was dismissed and was thereafter reinstated as per the award passed by the Labour Court. It further transpires that the father of the petitioner expired on 28.6.2009 while in service. The petitioner being elder son of Maganbhai made an application for being considered for compassionate appointment vide his application dated 15.7.2009. The said application came to be scrutinized by the authorities and vide order impugned in the present petition dated 30.7.2009, the petitioner was informed that since Maganbhai was daily wager, the case of the petitioner cannot be considered for compassionate appointment. Being aggrieved by the said order dated 30.7.2009, the present petition is filed.
3. Heard Ms. Bhavika Kotecha, learned advocate for the petitioner and Mr. Alkesh N. Shah, learned AGP for the respondents.
4. Ms. Bhavika Kotecha, learned advocate for the petitioner submitted that in fact the respondents have wrongly considered the status of late Maganbhai as daily wager and contended that the father of the petitioner was working as Beldar on permanent basis and was also drawing salary. It is submitted that if the mother of the petitioner is entitled for family pension, in the same line, the petitioner is also entitled for the benefit of the policy of the compassionate appointment. It is submitted that the petitioner is the eldest person in the family and his younger brother is studying and the whole liability of maintaining his family is upon the petitioner. It is submitted that the respondent authorities have passed the impugned order without considering this vital aspect.
5. Per contra, Mr. Alkesh N. Shah, learned AGP for the respondents has taken this Court through the affidavit in reply filed by respondent No.3. Learned AGP stated that on reinstatement as per the award passed by the Labour Court, Bhavnagar dated 21.2.1997, the father of the petitioner– Maganbhai was reinstated in his original status of daily wager. The learned AGP submitted that as per the policy which prevailed on the date on which the petitioner's application was considered, the heirs of daily wager are not entitled for the benefit of compassionate appointment nor even lumpsum compensation as per the prevailing scheme. It is submitted that even as per the ratio laid down by the Hon'ble Supreme Court in the case of General Manager Uttaranchal Jal Sansthan Vs. Laxmi Devi and Ors., reported in AIR 2009 SC 3121, daily wagers are not covered within the definition of the “Government servant”. It is, therefore, submitted that as per the policy of the compassionate appointment, the petitioner is not entitled for the benefit of the compassionate appointment as father of the petitioner was a daily wager. The learned AGP has also relied upon the judgment of this Court (Coram: S.K. Keshote, J. as he then was) passed in Special Civil Application No.11723 of 1994 dated 22.12.1995, wherein this Court has also come to the conclusion that the dependents of the employees who are working on daily wagers are not entitled to the benefit of compassionate appointment.
6. Considering the rival submissions made, the policy of the Government clearly spells out that the dependents of daily wagers are not eligible for the benefit of compassionate appointment. The learned AGP has tried to point out that as per the prevailing policy declared by the State Government by resolution dated 5.7.2011, whereby in view of the compassionate appointment, lumpsum compensation is provided for clearly stipulates that the same would not apply to the dependents of daily wager. It is further pertinent to note that vide communication dated 2.7.2010, the authority, under whom the father of the petitioner was working as daily wager, has while sanctioning the family pension has clearly stated that Maganbhai was a daily wager–Beldar.
7. In view of the aforesaid, the policy of the Government does not provide for the benefit of compassionate appointment/lumpsum compensation to the dependents of daily wager. The order impugned dated 30.7.2009 is, therefore, legal and proper. The contentions raised by the petitioner that as the family pension is granted, the benefit of compassionate appointment also should have been granted is contrary to the policy of the Government. The Rules for pension and the policy which is declared by way of resolutions from time to time are different. The petitioner being legal heir of daily wager has even otherwise no right to claim compassionate appointment and that too, dehors the Rules. The petition, therefore, fails and the same is rejected in limine with no order as to cost. Notice discharged.
[R.M.CHHAYA, J.] mrpandya