Nileshkumar Batuklal Parmar vs Joint Director Of Education ...
2021 Latest Caselaw 4773 Guj

     C/SCA/15412/2017                                     JUDGMENT


            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 15412 of 2017

FOR APPROVAL AND SIGNATURE:

HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
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1    Whether Reporters of Local Papers may be allowed
     to see the judgment ?

2    To be referred to the Reporter or not ?

3    Whether their Lordships wish to see the fair copy
     of the judgment ?

4    Whether this case involves a substantial question
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

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                   NILESHKUMAR BATUKLAL PARMAR
                              Versus
        JOINT DIRECTOR OF EDUCATION (SECONDARY), & 2 other(s)
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Appearance:
MS MAMTA R VYAS(994) for the Petitioner(s) No. 1
MR ROHAN SHAH, ASSISTANT GOVERNMENT PLEADER/PP(99) for the
Respondent(s) No. 1
MR BHUNESH C RUPERA(3896) for the Respondent(s) No. 3
MR SM CHUDASAMA(3712) for the Respondent(s) No. 3
NOTICE SERVED(4) for the Respondent(s) No. 2
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 CORAM: HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
                   Date : 26/03/2021
                   ORAL JUDGMENT

1. With the consent of the learned Advocates for the respective parties, the present petition is taken up for final hearing.

2. Issue Rule. Mr. Rohan Shah, learned Assistant Government Pleader waives service of rule on behalf of the respondent nos.1 and 2 and Mr. Bhunesh C. Rupera, learned Advocate waives service of rule on behalf of the respondent no.3.

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3. By this petition, inter alia, under Article 226 of the Constitution of India, the petitioner has prayed for direction to the respondents to issue order of compassionate appointment to the petitioner and in alternative, to pay lump-sum compensation as per the Government Resolution dated 5.7.2011.

4. Tersely stated are the facts:

4.1 The mother of the petitioner was working as peon in the respondent no.3 School (hereinafter referred to as "the Respondent no.3") which was run by the Trapad Gram Panchayat and while working, she passed away on 23.08.2005. Since the financial condition of the petitioner was pitiable, he submitted an application dated 20.9.2005 seeking compassionate appointment. Necessary resolution was also issued by the Gram Panchayat certifying about the pitiable condition of the family of the petitioner.

4.2 Certain details were asked for by the Joint Director, vide letter dated 16.08.2007 from the District Education Officer who, in turn, addressed a letter dated 17.10.2007 to the Respondent no.3 and upon receipt of the details, forwarded the same to the Office of the Commissioner. Thereafter, the office of the Commissioner of Higher Education, addressed a communication dated 20.11.2008 to the Deputy Secretary Education Department, recommending to offer the compassionate appointment to the petitioner.

4.3 The State Government in its Education Department, after a period of more than one year, vide letter dated nil rejected

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the application on the ground that the petitioner is lacking in experience of standard 10th pass as required vide Government Resolution dated 25.04.2008 of the General Administration Department. The office of the Commissioner of Higher Education vide communication dated 9/16.2.2010, in turn, informed the principal of the respondent no.3 that since the petitioner is not eligible for compassionate appointment, the application is rejected.

4.4 Immediately thereafter vide communication dated 5.3.2010, the respondent No.3 requested the Education Department to reconsider the application of the petitioner on sympathetic ground inasmuch as, the Government Resolution dated 25.4.2008 will not govern the application for, the mother of the petitioner died on 23.08.2005. Further, the petitioner has also cleared the standard 10th in the year 2006.

4.5 The District Education Officer, Bhavnagar, addressed a communication dated 30.4.2010 to the Joint Director Education Department informing that at the time of death of the employee, the petitioner was possessing the qualification of standard 4th pass; however, in October 2006, the petitioner has cleared standard 10th. According to the petitioner, both the communications dated 05.03.2010 as well as 30.04.2010, though were addressed to the Education Department as well as Joint Director (Education), remained undecided.

4.6 In the meantime, the State Government in its General Administration Department, issued the Government Resolution dated 5.7.2011 making provisions for payment of compensation in lieu of the compassionate appointment, replacing the earlier policies.

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4.7    Thereafter, the District Education Officer, Bhavnagar

addressed a communication dated 29.06.2017 requiring the respondent No.3 to provide the information of the cases or applications for compassionate appointment which have been rejected by the State Government. The information was provided accordingly by the respondent no.3.

4.8 In the meantime, the petitioner came to know about the judgment of this Court in the case of State of Gujarat vs. Bariya Vijaykumar Nanubhai rendered in Special Civil Application No.12241 of 2015 wherein similarly situated employee was directed to be offered compassionate appointment, whose application was rejected on the ground that he was not possessing the requisite qualification of standard 10th pass. Hence the petitioner being identically situated, has preferred captioned writ petition with the aforementioned prayer.

5. The respondent no.1 has filed the reply, inter alia, stating that the petitioner, as on 23.08.2005, at the time of preferring the application was 26 years and at the time of filing of the petition would be around 38 years and could not be regarded as dependent of his mother. It is also stated that the petitioner had made an application for compassionate appointment on 20.9.2005 which came to be rejected on 20.01.2010 and therefore, the petition filed in the year 2017, would be barred by delay and laches. It is stated that the ground raised by the petitioner is inadmissible and inconsequential because, the grounds pertain to, prior to rejection of his earlier claim of compassionate appointment. It is urged that such grounds were neither pleaded at the relevant point of time nor in the

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present writ petition and therefore, the grounds raised deserves to be disregarded. Also, the order dated 20.1.2010 had not been challenged and has attained finality.

5.1 It is further stated that the petitioner has sought benefit of government resolution dated 10.3.2000, that is, for compassionate appointment without laying a challenge to the earlier rejection, which has attained finality. The claim of the petitioner for lump sum compensation as available under the Government Resolution dated 5.7.2011, would also not survive in absence of any challenge to the rejection of his earlier claim for compassionate appointment. It is therefore urged that on both the counts the claim of the petitioner for compassionate appointment so also for compensation, does not deserve to be accepted, the same being misconceived and without any basis.

6. The petitioner has filed the rejoinder reiterating the contents of the writ petition. It is emphasised that when the application for compassionate appointment was filed on 20.9.2005, the policy which was in currency was dated 10.3.2000 and qualification prescribed was standard 4 th pass. The District Education Officer so also the office of the Commissioner of the Higher Education, after in-depth scrutiny and considering the pitiable condition, has recommended that the petitioner deserves compassionate appointment. However, the same came to be rejected on 20.1.2010. It is thus urged that the case of the petition requires consideration and the direction be issued to the respondent to appoint the petitioner.

7. Ms. Mamta Vyas, learned Advocate for the petitioner, took this Court to the communication dated 20.11.2008 to

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contend that the office of the Commissioner of Mid-day Meal & schools has recommended the State Government to offer the compassionate appointment; however, the State Government while not accepting the said recommendation passed the order dated 20.01.2010 rejecting the application on the ground that as per the conditions contained in the Government Resolution dated 25.4.2008 the petitioner cannot be offered compassionate appointment. According to the said Resolution, the candidate concerned should possess the qualification of standard 10th pass at the time of death of the employee.

7.1 It is submitted that there is a total non-application of mind on the part of the education department because, the mother of the petitioner died on 23.08.2005 and immediately on 20.09.2005, the petitioner submitted an application for compassionate appointment. Therefore, the government resolution dated 10.03.2000 would govern the case and not the resolution dated 25.04.2008 and therefore, the application was rejected by the Education Department on the basis of incorrect understanding. It is submitted that immediately after passing of the order dated 20.1.2010, the District Education Officer so also the Principal of the Respondent no.3, vide letters dated 30.04.2010 and 05.03.2010 respectively, drew the attention of the authorities concerned that the petitioner at the relevant point of time, was possessing requisite educational qualification and hence was eligible for being considered for compassionate appointment. Despite the said facts having brought to the notice of the State Government, it did not take any action.

7.2    It is further submitted that the inaction on the part of the






       C/SCA/15412/2017                                    JUDGMENT

State Government, has put the petitioner in a disadvantageous position as he has been deprived of the appointment, otherwise the petitioner was eligible to get the appointment. It is submitted that if this Hon'ble Court were not to accept the contention of the petitioner for compassionate appointment, the petitioner, in alternative, would urge for compensation in lieu of the compassionate appointment, which was introduced by the State Government vide Government Resolution dated 5.7.2011.

7.3 Reliance is placed on the judgment in the case of State of Gujarat vs. Bariya Vijaykumar Nanubhai (supra), to contend that the State Government had challenged the decision of the Tribunal whereby, the Tribunal, while allowing the application of the applicant therein, held that the applicant was entitled to the post of peon on compassionate ground. This Hon'ble Court did not accept the arguments of the State Government and while relying upon the decision of the Apex Court in the case of Canara Bank vs. M. Mahesh Kumar, reported in AIR 2015 SC 2411, rejected the petition It has been observed that the State being a welfare State, so also the employer for implementing its own policy, it should have respected and regarded the requirement of implementing the order of the Tribunal of giving compassionate appointment instead of the leaving the respondent therein to his own fate for all these years. It is submitted that the said Judgment was unsuccessfully challenged before the Hon'ble Division Bench by way of Letters Patent Appeal no. 807 of 2016.

7.4 It is further submitted that this Hon'ble Court, yet in another decision, in the Case of Manjulaben Devjibhai Parmar

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W/o. Ramjibhai Jagabhai vs. State of Gujarat rendered in Special Civil Application No.3345 of 2012, while allowing the writ petition has observed that "This Court is also mindful of the fact that the death is occurred in the year 2000 and the petition is required to be allowed in the year 2018 but that in itself would not deter the Court from issuing appropriate directions." It is submitted that in the said case the death had occurred in the year 2000 and this Court allowed the petition in the year 2018 directing the respondent to consider the case of the petitioner therein in light of the prevalent policy, that is, the Government Resolution dated 10.03.2000.

7.5 Further reliance is placed on the judgment in the case of Krutika Devang Vaidhya vs. State of Gujarat rendered in Special Civil Application No.11777 of 2009. It is contended that this Hon'ble Court, has quashed and set aside the order of the respondent authorities when it found that the decision was taken without proper application of mind.

7.6 It is submitted that the State Government though has filed a detailed affidavit, essentially, raised only one ground of delay namely, that the order dated 20.01.2010 has been challenged in the year 2017, except that, there are no other objections raised by the State Government. It is submitted that the order was passed in the year 2010 immediately on 05.03.2010 and 09.04.2010, the authorities have approached the State Government as well as the office of the Commissioner of Midday Meal & Schools, at behest of the petitioner and therefore, it cannot be said that the petitioner has not pursued his grievance promptly and that there is a delay in preferring the petition. Indeed, the delay is attributed

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to the State Government as it did not decide the two applications dated 09.04.2010 as well as 05.03.2010 of the respective authorities.

7.7 It is submitted that therefore, the order dated 20.01.2010 passed by the Section Officer, Education Department, suffers from the vice of non-application of mind because, the policy which was not applicable has been pressed in service, while rejecting the claim of the petitioner for compassionate appointmen. It is thus urged that the petitioner has been subjected to illegality and therefore, the present petition deserves to be allowed.

8. On the other hand, Mr. Rohan Shah learned Assistant Government Pleader, has submitted that the petition cannot be maintained by the petitioner as, the order dated 20.1.2010 passed by the Section Officer, Education Department, has attained finality as it has never been challenged by the petitioner. Further, the petition has been filed in the year 2017 which is almost after a delay of 7 years and therefore, on both the counts, the present petition deserves to be dismissed.

8.1 It is next submitted that so far as the recommendations by the Joint Director as well as the respondent no.3 are concerned, they are not by the petitioner but by the third parties and therefore it would not be permissible to the petitioner to cover up the delay on the basis of such recommendations made by the third parties. It is submitted that there is a misconception on the part of the petitioner that he has an absolute right to claim the compassionate appointment, forgetting that the said claim is governed by the policies framed by the State Government. Therefore, such

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perception on the part of the petitioner is fallacious.

8.2 It is further submitted that the objective behind the policy is to extend the assistance to the dependent of the employee who die in harness and as is clear from the record, the mother of the petitioner died in the year 2005 and the petitioner has, all through out, survived and therefore it cannot be said that the petitioner is either in a pitiable condition or that he is in need of the appointment. It is also submitted that the petition has been filed after a delay of almost 13 years from the date of death of the mother of the petitioner and such delay, in absence of any strong justification cannot be condoned. It is next submitted that as can be seen at the time of death of the mother of the petitioner, the petitioner was aged about 26 years and at the time of filing of the writ petition, the petitioner was aged about 38 years and therefore, also considering the age of the petitioner, as he has survived for all these years, the claim of compassionate appointment deserves to be rejected.

8.3 While adverting to the alternative prayer of the petitioner for grant of lump-sum compensation, it is submitted that as per the condition no.6 of the Government Resolution dated 05.07.2011, the applications which are rejected by the State Government, rejection would dis-entitle or exclude the member of the family from getting the lump-sum compensation. The application of the petitioner having been rejected vide order dated 20.01.2010, the petitioner is not entitled for lump-sum compensation as well.

8.4 Reliance is placed on the judgment of the Apex Court in the Case of Government of India vs. P. Venkatesh reported in

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2019 (15) SCC 613. It is submitted that in the case before the Hon'ble Supreme Court, the petition was filed with a delay of 11 years after the death of the employee. While allowing the appeal, it has been held by the Apex Court that compassionate appointment, it is well-settled, is intended to enable the family of a deceased employee to tide over the crisis, which is caused as a result of the death of an employee, while in harness. The essence of the claim lies in the immediacy of the need. It is next submitted that the Apex Court has observed that the delay in approaching the Court and rendering the claim stale, will take away the very basis of providing the compassionate appointment. It is submitted that, therefore, applying the said principle to the facts of the present case, the petitioner having survived for all these years cannot be extended the benefits of compassionate appointment.

8.5 Reliance is placed on the judgment in the case of State of Gujarat Vs. ArvindKumar T. Tiwari reported in 2012 (9) SCC

545. It is submitted that the Apex Court, has observed and held that compassionate appointment cannot be claimed as a matter of right inasmuch as, it is not another method of recruitment. Further, a claim to be appointed has to be considered in accordance with rules, regulations or administrative instructions governing the subject taking into consideration the financial condition of the family of the deceased. It has been further held that such category of employees itself, is an exception to the Constitutional provisions contained in Articles 14 and 16, which provides that there can be no discrimination in public employment. The object of compassionate employment is to enable the family of the deceased to overcome the sudden financial crisis it finds

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itself facing, and not to confer any status upon it.

8.6 Further, reliance is placed on the judgment of the Supreme Court in the Case of N.C. Santhosh vs. State of Karnataka reported in 2020 (7) SCC 617. It is submitted that it has been held by the Apex Court that the dependent of a government employee, in the absence of any vested right accruing on the death of the government employee, can only demand consideration of his/her application. He is, however, dis-entitled to seek consideration in accordance with the norms as applicable, on the day of death of the government employee. It is submitted that there is a huge delay on the part of the petitioner in approaching the Court and if the said delay is condoned, it would frustrate the whole objective behind the policy. Therefore, the petition being devoid of merit, deserves to be rejected.

9. Ms. Mamta Vyas learned Advocate for the petitioner, in a brief rejoinder, submitted that the respondent, has not clarified as regards the observation made in the order dated 20.01.2010. Further, in fact, all the judgments cited by the learned Assistant Government Pleader says that the application is to be decided as per the prevailing policy. So far as the present petition is concerned, the prevailing policy was dated 10.3.2000; which was requiring candidate to possess qualification of standard 4th pass, which the petitioner was duly possessing; however, the policy of 2008 has been wrongly applied. Besides, the policy has been introduced in the year 2008 and before the decision could have been taken, the petitioner has already cleared standard 10th in the year 2006 and therefore, on both the counts there is total non-application

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of mind on the part of the Section Officer, Education Department in rejecting the application.

9.1 It is vehemently submitted that judgments cited by the learned Assistant Government Pleader, will not apply to the facts of the present case. So far as the case of ArvindKumar T. Tiwari (Supra) is concerned, there the requirement was of possessing minimum eligibility of 10th pass whereas the applicant therein was standard 8th fail and it was in the said background that the Apex Court has observed that the candidate concerned was not possessing the requisite qualification. So is not the case of the petitioner.

9.2 Similarly, in the case of P. Venkatesh (Supra) the employee, had approached the tribunal after almost 11 years of the death of the deceased. While in the present case the petitioner immediately, after the death of the mother, filed an application for compassionate appointment. It is submitted that after the rejection of the application the petitioner had approached the District Education Officer as well as respondent No.3, and diligently pursued the matter requesting the State Government to reconsider the decision as there was an error committed on the part of the department in rejecting the application of the petitioner. It is thus urged that the petition deserves to be allowed.

10. Heard learned Advocate Ms. Mamta Vyas, for the petitioner and Mr. Rohan Shah, learned Assistant Pleader for the respondent nos.1 and 2 and Mr. Bhunesh Rupera, learned Advocate for the respondent no.3.

11. The facts in brief are that the mother of the petitioner

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died in harness on 23.05.2005 and immediately thereafter, on 20.09.2005, the petitioner submitted an application for compassionate appointment. Thereafter, the District Education Officer, vide letter dated 30.06.2007, had prepared a proposal and sent it to the office of the Joint Director Education (Secondary) who, in turn, vide letter dated 20.11.2008 forwarded the same to the Deputy Secretary, Education Department with a specific recommendation and that too with the approval of the Commissioner, Mid Day Meal & Schools, that the petitioner be given compassionate appointment. In the said communication it has also been stated that the petitioner is standard 10th pass and as per the certificate issued by the principal of the school, that is, the respondent no.3 it is entitled for three posts and out of three posts, one is still vacant. The communication was coupled with an undertaking of the Respondent No. 3 that if the petitioner is afforded compassionate appointment, it would not suffer any loss.

12. As is discernible from the record the Education Department was of the opinion that the petitioner at the time of the death of his mother was not possessing the educational qualification of standard 10th pass and hence, he cannot be offered the compassionate appointment. Accordingly, the application for compassionate appointment came to be rejected vide communication dated 20.1.2010. The said order/communication dated 20.1.2010 was addressed to the office of the Commissioner, Mid-day Meal & Schools, Gandhinagar who, in turn, vide communication dated 9/16.2.2010, informed the Principal of the respondent no.3 about the decision of the State Government. Immediately

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thereafter, the respondent no.3, vide communication dated 5.3.2010 clarified the issue that the mother of the petitioner had passed away on 23.8.2005, i.e. prior to the Government Resolution dated 25.4.2008 of the General Administration Department and petitioner at the relevant point of time was possessing requisite educational qualification as per the prevalent policy of the State Government and being the only earning member, the petitioner be offered the compassionate appointment.

13. The District Education Officer also vide, communication dated 30.4.2010 informed the Joint Director, Education, reiterating the aspect that the petitioner was possessing the requisite educational qualification for the post of Peon as he was standard 4th pass. Further, the petitioner has cleared standard 10th examination in the year 2006 and therefore, the petitioner possesses requisite educational qualifications in tune with the prevalent policy governing the compassionate appointment. Perceptibly, the communication dated 5.3.2010 so also the communication dated 30.4.2010 issued by the Principal - respondent no.3 and District Education Officer, Bhavnagar, respectively, have remained undecided owing to the inaction on the part of the Respondent Authority.

14. Adverting to the policies governing the compassionate appointment, it is required to be noted that the State Government in its General Administration Department has issued the Government Resolution No. BHRT-2197-K dated 10.3.2000 providing for revised scheme of giving compassionate appointment to one member of the dependent family of Class - III & IV. Condition nos. 5 and 6, read thus:

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"5.      Eligibility :

(A) A needy family worthy for immediate assistance shall be considered eligible for providing relief in financial stringency.

(B) In case of more than one member of the dependent family, the eligibility of compassionate appointment may be generally fixed as per the order of priority mentioned below.

(1) Widow or widower according to the relevant case. (2) Son or unmarried daughter upon which the dependent family totally depends (along with adopted son or unmarried daughter as mentioned in above 2(B)(2)).

(C) The candidate for compassionate appointment should be eligible and fit in all respects under the provisions of the Recruitment Rules of the post of appointment viz. -

The Candidate,

(1) Possessing educational qualification of Std. IV to IX, for Class-IV

(2) Possessing educational qualification of S.S.C. or more than that, for the lowest category of Class-III.

(3) Possessing educational qualification of driver and possessing other qualifications, for driver and

(4) Illiterate candidate not possessing any educational qualifications, in whose Recruitment Rules so educational qualification is prescribed may be given appointment on posts like Hamal, sweeper, water-boy, scavenger of class- IV.

6. (A) Exceptions :

Compassionate appointments may be given giving exemption from compliance of recruitment procedure of selection through the Gujarat Subordinate Services Selection Board, such other Boards or recruitment agency or by seeking names from Employment Exchanges.

(B) Relaxations :

(1) Possessing upper or minimum age limit shall be decided with reference to the date of application for compassionate appointment and not with reference to the date of appointments.

(2) The relaxation may be given in upper age limit wherever required, provided that no more relaxation can be given i.e. maximum 20 years than the upper

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age limit prescribed in the Recruitment Rules of the respective post or 45 years of age whichever is less, however, in cases where the deceased employee is childless, there are no unmarried daughters, son or daughter is minor or no other person is having eligibility of compassionate appointment except widow or widower, upper age limit may be relaxed for widow or widower upto the age of 48 years, where no relaxation can be given in the minimum age limit prescribed in the Recruitment Rules of the relevant post.

(3) The powers to give relaxation in the upper age limit for the appointments under the scheme shall vest in the Additional Chief Secretary / Principal Secretary / Secretary to the Government."

15. Clearly, as per condition no.5 (C), the candidate for being qualified to be appointed should possess the educational qualification of Standard IV to Standard IX pass for class-IV. clause (B) of condition no.6, provides for relaxation. Sub-clause (1) of clause (B) of condition no.6, states that possessing upper or minimum age limit shall be decided with reference to the date of application for compassionate appointment and not with reference to the date of appointments. Sub-clause (2) provides for giving of relaxation in upper age limit, for which, discretion lies with the concerned authority.

16. Pertinently, the General Administration Department has issued a Government Resolution dated 25.4.2008 prescribing the amended educational qualification of minimum of standard 10th pass for Class-IV and more particularly for the post of peon. There is one another Government Resolution dated 11.10.2006/2008 issued by the Education Department which also provides for amendment in the educational qualification for being appointed to the post of Peon. In the tabulated chart annexed to the said resolution, instead of the educational qualification of standard 4th pass, the amended qualification is

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standard 10th pass for the post of Peon. Prior to the year 20006 the educational qualification for being appointed to the post of Class-IV was standard 4 th pass and it was only in the year 2006 that amendment was made, raising the requirement.

17. Pertinently, the petitioner submitted an application in the year 2005, when the policy governing compassionate appointment was Government Resolution dated 10.3.2000. As per the condition no.5(C), the requirement for being eligible for compassionate appointment was standard 4th to standard 9th pass. Hence, petitioner having the educational qualification of standard 4th pass, was very much eligible for compassionate appointment; however, during the pendency of the application and in the interregnum, there was an amendment brought whereby, the requirement of educational qualification underwent a change, raising the same to standard 10 th pass. Undisputably, the petitioner was standard 8 th pass and subsequently in the year 2006 had cleared the 10 th standard examination as well. Hence, at the time of taking decision on the application for compassionate appointment, the petitioner was possessing the educational qualification of standard 10 th pass.

18. What the authority appears to have done is, while pressing in service the amended provisions of the year 2008, considered the educational qualification, which the petitioner possessed, at the time of the death of his mother. Such action on the part of the Section Officer was erroneous for, firstly the application ought to have been decided in tune with the prevalent policy, that is, the Government Resolution dated

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10.3.2000 but it did not do so, secondly, the amendment to the educational qualification was not with a retrospective effect; thirdly, assuming that the amendment was governing the pending applications then the Section Officer while taking a decision in the year 2010 instead of considering the educational qualification of the petitioner, which he possessed at the time of death of his mother, ought to have taken into account the educational qualification which the petitioner acquired subsequently in the year 2006. Perceptibly the petitioner was eligible as per both the policies, unfortunately, owing to sheer non-application of mind on the part of the concerned Authority, the application was rejected. Such consideration by the Section Officer, Education Department, was not only erroneous but against the provisions of the Policy.

19. Besides, the said mistake was duly brought to the notice of the Education Department; however, the same was not considered and the error which was committed vide the communication dated 20.1.2010 by the Section Officer, Education Department, continued to exist. The reliance placed by the learned Assistant Government Pleader on the judgment in the case of N.C. Santhosh (supra), indeed, helps the petitioner rather than the State Government. The Apex Court, in paragraph 19 has observed that applying the law governing compassionate appointment, 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 consideration of his/her application. It is further held that he is

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disentitled to seek consideration in accordance with the norms as applicable, on the day of death of the government employee. The Apex Court, has held that the dependent of a government employee, can only demand consideration of his or her application and that is to be done as per the norms prevailing on the date of consideration of the application.

Therefore, consideration implies proper application of mind by the authorities on the basis of the prevalent policies, governing the compassionate appointment. As can be seen from the communication dated 20.1.2010 of the Education Department, there is no consideration at all except mentioning that the petitioner was not possessing the requisite qualification, which consideration is against the facts available on the record. Therefore, the action on the part of the respondent in not offering the compassionate appointment to the petitioner, deserves to be quashed and set aside and is hereby quashed and set aside.

20. At this stage it would be apt to refer to the judgment of this Court in the case of State of Gujarat vs. Bariya Vijaykumar Nanubhai (supra). The facts are very much in proximity to the facts of the present case. In the said case, the respondent therein was denied compassionate appointment. The father of the respondent therein was working as a Peon in a grant-in-aid school and died in harness on 22.2.2008. The respondent being a son of the deceased employee and having qualification of 9th standard pass, applied for compassionate appointment on 10.4.2001. The application travelled from the office of the District Education Officer to the office of the Commissioner of Mid-day Meals & Schools and it, in turn, declined the proposal

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on the ground that as per the changed policy dated 4.10.2005, the educational qualification for the post of Peon was 10 th standard pass and that the respondent does not possess the same. Aggrieved by the said decision, the respondent approached the Tribunal, inter alia, contending that the qualification prescribed by way of a change in policy vide Government Resolution dated 4.10.2005 would not apply to his case. The Tribunal, after hearing both the parties, held that the respondent is entitled to the post of Peon, which order was challenged before this Court. After considering various judgments, this Court did not interfere with the order of the Tribunal, observing in paragraph 10 thus:

"10. In the present case also, while referring to the merit, as could be noted from the decision of the Tribunal that there is a total absence of any explanation of the State as to why the application of the respondent-employer was not considered upto the year 2006, and was regarded only after a change in the policy in the year 2005 where the State has enhanced the minimum qualification for the post of peon to be appointed under the compassionate appointment from Standard 9th pass to Standard 10th pass. In the case of the respondent No.1, in the opinion of this Court, the Tribunal in the given factual background committed no error eventually in allowing the application although being conscious of the fact that this is not an alternative mode of recruitment. This Court is also not to be oblivious of the fact that the scope of employment on compassionate ground cannot be disregarded by the State itself. The whole object of granting compassionate appointment is to enable the family to tide over the sudden crisis. The object is to give a member of such family a post much less a post for post held by the deceased. The exception to the rule made in favour of the family of the deceased employee is in consideration of the services rendered by him and the legitimate expectations of getting the compassionate appointment on the strength of the policy of the State prevalent. It is also incorrect to state that the respondent No.1 has chosen not to approach the petitioner authority after the decision of the Tribunal, although that itself cannot be a ground to entertain the present petition preferred by the petitioner - State."

21. This Court, while relying upon the judgment of the Apex

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Court in the case of Canara Bank and another vs. M. Mahesh Kumar, reported in AIR 2015 SC 2411, rejected the petition and directed the State Government to implement the order of the Tribunal without any further delay. This Court has observed that there was a total absence of any explanation by the State Government as to why the application of the respondent was not considered up to the year, 2006 and was decided only after a change in the policy in the year 2005, as when, the State has enhanced the minimum qualification for the post of Peon to be appointed under the compassionate appointment from standard 9th pass to standard 10th pass. This Court has also observed that it is also not to be oblivious of the fact that the scope of employment on compassionate ground cannot be disregarded by the State itself. The whole object of granting compassionate appointment is to enable the family to tide over the sudden crisis. The object is to give a member of such family a post much less a post for post held by the deceased. The exception to the rule made in favour of the family of the deceased employee is in consideration of the service rendered by him and the legitimate expectations of getting the compassionate appointment on the strength of the policy of the State.

22. Yet in another decision of this Court in the case of Manjulaben Devjibhai Parmar W/o. Ramjibhai Jagabhai (supra) this Court in paragraph 18 observed thus:

"18. The Court is therefore, require to issue appropriate direction in the interest of justice. The Court is also mindful of the fact that the death is occurred in the year 2000 and the petition is required to be allowed in the year 2018. But that in itself would not deter the Court from issuing appropriate direction. Hence, the petition is allowed. The respondent no.1 is hereby directed to consider the petitioner's case in light of the prevalent policy dated 10th March 2000, which is produced on

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record and if the petitioner is found eligible in accordance therewith, then she be appointed forthwith on the appropriate post and the entire exercise should be over within the period of 30 days from the date of the receipt of the writ of this order. Rule made absolute. However, there shall be no order as to costs."

23. In the present case also, the application by the petitioner, was filed in the year 2005, i.e. immediately after the death of his mother, which came to be decided only in the year 2010 and during the interregnum, the policy underwent a change, whereby, the educational qualification was enhanced from 4 th standard pass to 10th standard pass. Had the Education Department taken a little care to verify the record, it would have found that before the change in the policy, i.e. on 11.10.2006 and/or 25.4.2008, the petitioner had already cleared the 10th standard examination in the month of October, 2006. Therefore, at the time of deciding the application the petitioner was very much qualified for being offered compassionate appointment. Considering the said position, on both the counts, there was no reason available on the part of the Section Officer, Education Department to have rejected the application of the petitioner inasmuch as, firstly, the policy prevailing was 10.3.2000 which was requiring the educational qualification of 4th standard pass; and secondly, even if applying the subsequent policy, the petitioner had already cleared the qualification of 10th standard pass. Therefore, there was a thorough non-application of mind on the part of the Education Department in considering the application of the petitioner.

24. Before concluding, let me deal with the judgments cited by the learned Assistant Government Pleader and its

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applicability to the facts of the present case.

25. So far as the judgment in the case of State of Gujarat vs. Arvindkumar T. Tiwari (supra) is concerned, there, admittedly, the petitioner was not possessing the basic qualification of 10 th standard but was 8th standard fail and therefore, he was ineligible for the post at the threshold. As per the educational qualification, the candidate concerned was required to have minimum qualification of 10th standard pass. Under the circumstances, the Apex Court in paragraph 14 has observed and held that the eligibility criteria for a Class-IV post was set as, the passing of the 10 th standard, and as the respondent had been unable to pass even the 8th standard, he was most certainly, not eligible to apply for the said post. It has been further held that it is neither desirable, nor permissible in law, for this court to issue direction to relax the said eligibility criteria and appoint the respondent merely on humanitarian grounds.

So far as the present case is concerned, the petitioner was 8th standard pass and the educational qualification at the relevant point of time was 4th standard pass and subsequently he acquired the qualification of standard 10th pass, which was the requirement after the year 2006.

26. Similarly, the judgment in the case of the Govt. of India vs. P. Venkatesh (supra) cannot be made applicable for, the dependent approached the Tribunal almost after 11 years after death of employee, seeking compassionate appointment. Under the circumstances, the Apex Court, has held that the recourse to the Tribunal suffered from a delay of over a decade in the first instance and this staleness of the claim took away

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the very basis of providing compassionate appointment and accepted the appeal of the Government of India and rejected the claim of the respondent therein. In the present case, the petitioner has been pursuing his claim since the death of her mother in the year 2005.

27. Therefore, as discussed herein above, the action of the State Government in not offering the compassionate appointment to the petitioner, is illegal and arbitrary, which deserves to be quashed and set aside and is hereby quashed and set aside. Under the circumstances, the respondent nos.1 and 2 are directed to take a decision to offer the compassionate appointment to the petitioner within a period of four weeks from the date of receipt of the copy of this Judgment and the decision shall be communicated to the petitioner. In case of difficult, it will be open to the petitioner to take a legal recourse, as may be available to him.

28. Rule is made absolute to the aforesaid extent. No order as to costs.

(SANGEETA K. VISHEN,J) BINOY B PILLAI