Gujarat High Court

Jeshingbhai Paljibhai Rathod vs State Of Gujarat Thro Secretary on 28 June, 2022

Bench: A.Y. Kogje

      C/SCA/2187/2013                                     ORDER DATED: 28/06/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 2187 of 2013

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                    JESHINGBHAI PALJIBHAI RATHOD
                               Versus
             STATE OF GUJARAT THRO SECRETARY & 3 other(s)
================================================================
Appearance:
MR KJ DWIVEDI(316) for the Petitioner(s) No. 1
MR SHAKEEL A QURESHI(1077) for the Petitioner(s) No. 1
ROHAN SHAH, AGP for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 1
================================================================

 CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE

                                  Date : 28/06/2022

                                   ORAL ORDER

1. This petition under Article 226 of the Constitution of

India is filed with prayers as under:

"[A] Your Lordships may be pleased to allow and admit this Special Civil Application.

[B] Your lordships may be pleased to issue a writ of mandamus or any other appropriate writ order or direction be issued to quash and set aside the decision of the respondent No.2 and further directing the respondents to consider the case of petitioner for compassionate appointment and grant the same in the interest of justice."

1.1 The petitioner seeks to challenge the inaction on part of

the respondents in not granting of an appointment on

compassionate ground despite fulfillment of all requisite

C/SCA/2187/2013 ORDER DATED: 28/06/2022

procedures and possessing adequate qualifications.

2. Learned Advocate for the petitioner submitted an

application was made by the petitioner to the respondent No.2-

Superintendent Engineer, Roads and Buildings Department vide

letter dated 16-12-2010. Pursuant thereto, the office of respondent

no.4 in turn sought further details and clarifications from the office

of the respondent no.2 the Superintendent Engineer vide letter

dated 27.01.2011.

2.1 It is submitted that respondent No.3 vide its letter

dated 12.12.2011 communicated a letter to respondent No.2 under

intimation to the petitioner that the application of the petitioner

forwarded to the Gujarat Public Service Commission-respondent

No.4 is pending and the petitioner is eligible to receive

compensation of Rs.4,00,000/- and the same may be got sanctioned

from the authorities. The Gujarat Public Service Commission has

vide letter dated 29-9-2011 has informed to follow the procedure in

accordance with the new policy and make payment of Rs.4.00 lacs

to the petitioner. The above application has not been accorded

sanction by the respondent No.4 keeping in view the Resolution

dated 05.07.2011 issued by the General Administration Department

whereas the petitioner has made his application prior to the

resolution coming into effect.


3.              On      the    other   hand       learned     AGP    submitted          that







       C/SCA/2187/2013                             ORDER DATED: 28/06/2022

representation was made by the petitioner apropos the order dated

30.07.2011. On 27.03.2012 which was further rejected, on the

grounds that he is not entitled for the employment as per the

Government Resolution, and as per the aforementioned GR only

petitioner is entitled for the lump sum amount as mentioned under

Rule-3(1) of Government Resolution dated 05.07.2011.

3.1 It is submitted that GR Rule-3, sub Rule-1 provides that

if any person serving as Class-3 and 4 employees, while serving on

his duties expires, and where remaining service is less than 10

years, he will be entitled for Rs.4 lakhs only.

3.2 It is submitted that as per the rule-5 of Government

Resolution dated 05.07.2011, it categorically mentioned that if any

person serving in clause-3 dies during his services the case of the

same shall be decided as per the new scheme.

3.3 It is submitted that petitioner was offered Rs.4 lacs as

lump sum ex-gratia amount of Rs.4 lacs as per policy of 05.07.2011

on 27.03.2012. However, the same was refused by the petitioner

and same was return back to the respondent office through letter

dated 29.05.2012.

4. Having considered the rival submissions of the parties

and having perused the documents on record, it appears that the

father of the petitioner Shri Paljibhai Ranabhai Rathod was

working in the office of the respondent no. 3 as a Class-IV

C/SCA/2187/2013 ORDER DATED: 28/06/2022

employee and died while performing his duty on 22-10-2010. The

petitioner being his legal heir and entitled to appointment on

Compassionate ground preferred an application for appointment on

30-11-2010 in the form prescribed and submitted in the office of

respondent No.3.

5. The petitioner's father was working as a peon in the

office of executed engineering, R & B Department, Bhavnagar, and

died on 22.10.2010 while serving on duty. The petitioner preferred

application for appointment on compensation grant on 30.11.2010

which was forwarded through the executive engineer, R & B

Department, Bhavnagar to Gujarat Gaun Seva Pasandgi Mandal on

16.12.2010.Thereafter, Gujarat Guan Seva Pasandgi Mandal

through the letter dated 29.09.2011 passed the order for granting

lump sum amount to the petitioner. As per the rule-3 sub rule-1 of

Government Resolution dated 05.07.2011.

6. The ratio laid down by the Supreme Court in State

Bank of India & Another v. Raj Kumar reported in (2010) 11

SCC 661; and Division bench decision of this Hon'ble Court in

State of Gujarat Vs. Jadeja Dharmendrasingh Jayendrasingh

& Ors. LPA 526 of 2012 would squarely apply in the present case.

Moreover, in State of Gujarat and others Vs. Arvindkumar

Tivari and Ors reported in AIR 2012 Supreme Court 3285-

Apex court laid down ratio that "Compassionate appointment is not

matter of right". Therefore, following the ratio of the judgment of

C/SCA/2187/2013 ORDER DATED: 28/06/2022

the Apex Court in State Bank of India (supra), State of Gujarat

Vs. Dharmendrasigh Jayendrasingh (supra), and

Arvindkumar Tivari (supra) the relief to which the respondents

would be legally entitled would be to avail the benefit of the new

scheme under resolution dated 05.07.2011.

6.1 The Apex Court in case of N.C. Santhosh v/s. State of

Karnataka and others reported in (2020) 7 SCC 617, in para-19

has held as under:

"19. 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 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. From the pleadings and the document it appears that,

Government Servant died after suffering with his medical

condition. The application dated 30.11.2010 was received by the

Executive Engineer on 16.12.2010. The internal communication

indicates that the application being incomplete was required to be

supplemented and ultimately, as the application was in complete

C/SCA/2187/2013 ORDER DATED: 28/06/2022

form, taken up for consideration in form of the proposal dated

12.12.2011 and accordingly, the decision was taken on 16.02.2012.

The Chronology thus far suggests that the respondents have

applied the appropriate Scheme.

8. In view of the aforesaid reasonings, no interference is