District Education Officer vs Lalabhai Khodabhai Patni
2021 Latest Caselaw 6194 Guj

     C/CA/1001/2021                                         ORDER DATED: 17/06/2021




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                  R/CIVIL APPLICATION NO. 1001 of 2021
                                   In
              F/LETTERS PATENT APPEAL NO. 12654 of 2021

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                       DISTRICT EDUCATION OFFICER
                                  Versus
                        LALABHAI KHODABHAI PATNI
==========================================================
Appearance:
MS. JYOTI BHATT, AGP for the Applicant(s) No. 1,2,3
for the Respondent(s) No. 1,2
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 CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
       and
       HONOURABLE MR. JUSTICE NIRZAR S. DESAI

                                     Date : 17/06/2021

                                      ORAL ORDER

(PER : HONOURABLE MR. JUSTICE NIRZAR S. DESAI)

1. By way of this Letters Patent Appeal, the appellant - District Education Officer, Patan has challenged the order dated 07.12.2017 passed by the learned Single Judge in Special Civil Application No. 7808 of 2014, whereby, while disposing of the Special Civil Application preferred by the present respondent no.1 - original petitioner, the learned Single Judge quashed and set aside the order dated 10.06.2011 passed by the Deputy Secretary, Education Department, rejecting the application of the original petitioner - respondent no.1 herein for

C/CA/1001/2021 ORDER DATED: 17/06/2021

compassionate appointment. The learned Single Judge while quashing and setting aside the aforesaid order dated 10.06.2011, remitted the petitioner's case to the concerned authorities for reconsideration in accordance with the applicable rules and policy and directed to reconsider the petitioner's case. While disposing of the petition, the learned Single Judge further observed that, if it is necesary to take into account financial status or income of the petitioner/ family, then the competent authority may examine the said issue also, however, the competent authority was directed not to give weightage to the income from pension or amount received towards retiral benefits and it was observed that the said aspect may be examined from the other prospective keeping it open for the present appellant - original respondent to consider as to whether the family has any other sources of income.

2. The aforesaid order dated 07.12.2017 is sought to be challenged by way of present appeal, which is filed with an application for condonation of delay of 798 days in filing the present Letters Patent Appeal.

3. Heard learned Assistant Government Pleader Ms.

C/CA/1001/2021 ORDER DATED: 17/06/2021

Jyoti Bhatt for the appellants-State authorities on the aspect of delay as well as on merits of the matter. In respect of the application for condonation of delay, the learned AGP reiterated the grounds stated in the application for condonation of delay. Sum and substance of the submissions made by the learned AGP was that, after the order under challenged dated 07.12.2017 was passed by the learned Single Judge, the inter department and intra department correspondences went on till 05.12.2020, and ultimately, the Commissioner of Schools forwarded the sanctioned letter to the District Education Officer, Gandhinagar on 02.01.2021 for filing present Letters Patent Appeal, which thereafter was forwarded to the office of the Government Pleader, and ultimately, present Letters Patent Appeal was filed after delay of 798 days. Learned AGP submitted that in view of elaborated description about how the correspondences took place between inter department and intra department, which shows that there is a justifiable cause to condone the delay, as the sanction to file the Letters Patent Appeal was accorded on 05.12.2020 only, therefore, the delay may be condoned and the main Letters Patent Appeal may be heard on its

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own merits.

4. On merits, the learned AGP submitted that the learned Single Judge has committed an error by not appreciating the fact that the deceased employee was being paid pension and the amount towards the pension was equivalent to or more than the salary, which the petitioner would get, if appointed on Class-IV post. Learned AGP further submitted that in view of the government resolutions dated 29.03.2007 and 25.04.2008 in respect of compassionate appointment, while considering any application for compassionate appointment, the benefits that the applicant is already receiving from the Government is also required to be considered, and hence, the authority has rightly considered the application of the petitioner and rejected his application for compassionate appointment vide order dated 10.06.2011. No other submissions were made except the aforesaid two submissions. Since the learned AGP made submissions on the aspect of delay as well as merits of the matter, we may deal with both the aspects one-by-one.

5. As far as the aspect of delay is concerned, the present Letters Patent Appeal is preferred after the delay of 798 days, for which no cogent

C/CA/1001/2021 ORDER DATED: 17/06/2021

reason, except inter and intra department correspondences are given by the present appellant. We are not convinced by the reasons given by the appellant, more particularly, keeping in mind the direction issued by the learned Single Judge and also keeping in mind the observations made by the Hon'ble Supreme Court very recently in Special Leave Petition (Civil) Diary No. 19846 of 2020 in the case of Union of India v/s. Central Tibetan Schools Admin & Ors., wherein the Hon'ble Supreme Court observed as under:

"The present special leave petitions have been preferred also after delay of 532 days and 6616 days from the original order.

We have heard learned Additional Solicitor General for some time and must note that the only error which seems to have occurred in the impugned order is of noticing that it is not an illiterate litigant because the manner in which the Government is prosecuting its appeal reflects nothing better! The mighty Government of India is manned with large legal department having numerous officers and Advocates. The excuse given for the delay is, to say the least, preposterous.

We have repeatedly being counselling through our orders various Government departments, State Governments and other public authorities that they must learn to file appeals in time and set their house in order so far as the legal department is concerned, more so as technology assists them. This appears to be falling on deaf ears despite costs having been imposed in number of matters with the direction to recover it from the officers responsible for the delay as we are of the view that these officers must be made accountable. It has not had any salutary effect and that the

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present matter should have been brought up, really takes the cake! The aforesaid itself shows the casual manner in which the petitioner has approached this Court without any cogent or plausible ground for condonation of delay. In fact, other than the lethargy and incompetence of the petitioner, there is nothing which has been put on record. We have repeatedly discouraged State Governments and public authorities in adopting an approach that they can walk in to the Supreme Court as and when they please ignoring the period of limitation prescribed by the Statutes, as if the Limitation statute does not apply to them. In this behalf, suffice to refer to our judgment in the State of Madhya Pradesh & Ors. v. Bheru Lal [SLP[C] Diary No.9217/2020 decided on 15.10.2020] and The State of Odisha & Ors. v. Sunanda Mahakuda [SLP[C] Diary No.22605/2020 decided on 11.01.2021]. The leeway which was given to the Government/ public authorities on account of innate inefficiencies was the result of certain orders of this Court which came at a time when technology had not advanced and thus, greater indulgence was shown. This position is no more prevalent and the current legal position has been elucidated by the judgment of this Court in Office of the Chief Post Master General & Ors. v. Living Media India Ltd.& Anr.-(2012) 3 SCC 563. Despite this, there seems to be a little change in the approach of the Government and public authorities.

We have also categorized such kind of cases as certificate cases filed with the only object to obtain a quietus from the Supreme Court on the ground that nothing could be done because the highest Court has dismissed the appeal. The objective is to complete a mere formality and save the skin of the officers who may be in default in following the due process or may have done it deliberately. We have deprecated such practice and process and we do so again. We refuse to grant such certificates and if the Government / public authorities suffer losses, it is time when concerned officers responsible for the same, bear the consequences. The irony, emphasized by us repeatedly, is that no action is ever taken against the officers and if the Court pushes it, some mild warning is all that happens.

C/CA/1001/2021 ORDER DATED: 17/06/2021

Looking to the gross negligence and the impunity with which the Union of India had approached this Court in a matter like this, we consider it appropriate to impose special costs of Rs.1 lakh in this case to be recovered from the concerned officer(s), to be deposited with the Supreme Court Advocates on Record Welfare Fund within four weeks."

6. In view of the aforesaid observations by the Hon'ble Supreme Court, if we look at the order passed by the learned Single Judge, the order only directs the respondent authorities to reconsider the case of the petitioner, in view of the observations made by the learned Single Judge, and therefore, the aforesaid directions given by the learned Single Judge is required to be looked into alongwith the latest law on the subject of compassionate appointment by the Hon'ble Supreme Court in case of N.C. Santhosh v/s. State of Karnataka reported in (2020) 7 SCC 617, wherein, the Hon'ble Supreme Court in Para- 19, while allowing the petition observed thus:

"Applying the law governing compassionate appointment culled out from the above cited judgments, our opinion on the point at issue is that the norms, prevailing on the date of consideration of the application, should be the basis for consideration of claim for compassionate appointment. A dependent of a government employee, in the absence of any vested right accruing on the death of the government employee, can only demand

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consideration of his/her application. He is however disentitled to seek consideration in accordance with the norms as applicable, on the day of death of the government employee.

7. In view of the aforesaid observations by the Hon'ble Supreme Court, the present appellants were rightly directed to reconsider the case of the original petitioner - present respondent no.1, and hence, we do not find any reason to interfere with the view taken by the learned Single Judge.

8. In light of above, the present Letters Patent Appeal fails on both the counts of delay as well as on merits and the same deserves to be dismissed and the same is dismissed accordingly. No order as to costs. As the Letters Patent Appeal is dismissed, connected Civil Applications are also dismissed.

(R.M.CHHAYA, J)

(NIRZAR S. DESAI,J) Pradhyuman