Rajendrabhai Jivrambhai Mina vs State Of Gujarat
2022 Latest Caselaw 5034 Guj

      C/SCA/7248/2018                                  ORDER DATED: 09/06/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 7248 of 2018

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                        RAJENDRABHAI JIVRAMBHAI MINA
                                   Versus
                             STATE OF GUJARAT
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Appearance:
MR KRUNAL D PANDYA(3283) for the Petitioner(s) No. 1
MR ROHAN SHAH, AGP for the Respondent(s) No. 1,2
MR HARSH N PAREKH(6951) for the Respondent(s) No. 3
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 CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE

                                Date : 09/06/2022

                                 ORAL ORDER

1. This petition under Article 226 of the Constitution of India is filed for setting aside the communication dated 28.03.2018 by the respondent no.1 by which the application of the petitioner for compassionate appointment came to be rejected on the ground of the application being time barred.

2. Learned advocate for the petitioner submitted that findings given in the impugned communication regarding the application for compassionate appointment is time barred is actually incorrect. He, therefore, through the chronology of events and the documents indicating that the within the time stipulated, the petitioner had made an application for compassionate appointment to the school and the school in turn had forwarded the same to the respondent no.1-authority. However, these two applications and communications have not been taken into consideration by the respondent-authorities while dealing with the case of the petitioner for the compassionate appointment.

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3. Learned advocate for the petitioner submitted that in support of the application, even after the impugned communication, the respondent no.2-school had given clarification to indicate the manner and method in which the petitioner and the responsible officer of the school had made the necessary application in time. However, there is no answer in this regards, and therefore, the case of the petitioner deserves consideration.

4. Learned AGP submitted that the impugned communication deals with an application, which is on record of the authority and such application dated 12.11.2009 is certainly beyond the period of six months stipulated under the scheme, and therefore, does not deserve consideration. He relies upon the decision of the Apex Court in case of Central Coalfields Limited through its Chairman and Managing Director & Ors. Vs. Smt. Parden Oraon reported in AIR 2021 SC 1876 to substantiate his argument that the scheme as well as the decision of the Apex Court is in the nature where the family of the deceased is provided for to overcome the gain financial situation that the family will have to face in view of sudden demise of the bread winner in the family. The relevant paragraph no.8 of this judgment reads as under:-

"8. The whole object of granting compassionate appointment is to enable the family to tide over the sudden crisis which arises due to the death of the sole breadwinner. The mere death of an employee in harness does not entitle his family to such source of livelihood. The authority concerned has to examine the financial condition of the family of the deceased, and it is only if it is satisfied that but for the provision of employment, the family will not be able to meet the crisis that the job is offered to the eligible member of the family 1. It was further asseverated in the said judgment that compassionate employment cannot be granted after a lapse of reasonable period as the consideration of such employment is not a vested right which can be exercised at any time in the future. It was further held that the object of compassionate appointment is to enable the

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family to get over the financial crisis that it faces at the time of the death of sole breadwinner, compassionate appointment cannot be claimed or offered after a signficant lapse of time and after the crisis is over."

Such is not the case in the present case, as the death of the employee had taken place in the year 2005, whereas the application, if at all is considered of the year 2009 is more than 4 years after such incident.

5. Over and above that, it is pointed out that the petitioner is already given a service as an Attendant by the respondent-school itself, and therefore, there is no question of petitioner's family facing any situation, which would warrant invoking of scheme of compassionate appointment.

6. Having heard the learned advocates for the parties and having perused the documents on record, the impugned communication dated 28.03.2018 is with reference to the communication made by the respondent-school dated 29.01.2018, 30.01.2018 and in response to the application of the petitioner dated 12.11.2009. While dealing with these communications, it is conveyed to the petitioner that the application of the petitioner which is dated 02.11.2009 for compassionate appointment in place of his father, who expired in the year 2005 is grossly time barred.

7. An attempt on the part of the petitioner is made to make out a case that the application was within time by drawing attention of this Court to Annexure-A (Page Nos.13 and 16) . A perusal of these documents would indicate that the communication addressed by the petitioner to the school is 21.04.2005, which is a hand writing communication and along with that the death certificate of father indicating the death of

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father having expired on 02.02.2005 and based on this, communication dated 25.04.2005 by the respondent-school to the respondent no.1. However, this document does not bear any stamp of the receipt by the respondent no.1, and therefore, what is attempted to be shown, as receipt is merely a mentioning of the date being 28.04.2005 without there being any stamp of the Department of having received such an application, the Court would not presume that such an application was an application, which the Department ought to have treated to be a proper application for compassionate appointment.

8. The submissions of learned advocate for the petitioner as well as learned advocate for the respondent no.2-school that the genuine attempt was made when the erstwhile blind principal of the school had accompanied the petitioner for handing over such an application, the Court is unable to appreciate the same in absence of any cogent evidence. Moreover, such submission will give rise to questions of fact, which would obviously be disputed and would require leading of evidence to establish that the application was made within time, as is canvassed by the petitioner.

9. The reliance placed by the petitioner on the subsequent communication dated 12.04.2018 does not take the case of the petitioner any further, as it appears to be an afterthought to overcome the decision of the respondent-authority to treat the application of the petitioner to be beyond time. The Court also observes that the petitioner has already been in employment of the respondent no.2-school and efforts are being made by the respondent-school to receive sanction from the State Authorities to such an appointment.

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10. In that view of the matter also, the family of the petitioner is not put in precarious financial condition so as to invoke the provisions of scheme of compassionate appointment. The Court is not inclined to accept the case of the petitioner. The present petition deserves to be dismissed and is hereby dismissed. Notice is discharged.

(A.Y. KOGJE, J) GIRISH