Bhavin S/O Sanatbhai Kaniyalal ... vs State Of Gujarat
2022 Latest Caselaw 5732 Guj

     C/SCA/12975/2017                                      JUDGMENT DATED: 29/06/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 12975 of 2017


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE A.Y. KOGJE                            Sd/-
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1     Whether Reporters of Local Papers may be allowed                          No
      to see the judgment ?

2     To be referred to the Reporter or not ?                                   No

3     Whether their Lordships wish to see the fair copy                         No
      of the judgment ?

4     Whether this case involves a substantial question                         No
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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                  BHAVIN S/O SANATBHAI KANIYALAL PANDYA
                                  Versus
                       STATE OF GUJARAT & 2 other(s)
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Appearance:
MR MA PAREKH(1088) for the Petitioner(s) No. 1
MR DHAWAN JAISWAL, AGP for the Respondent(s) No. 1
MR PS CHAMPANERI(214) for the Respondent(s) No. 2
RULE SERVED for the Respondent(s) No. 3
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    CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE

                                  Date : 29/06/2022

                                 ORAL JUDGMENT

1. This petition under Article 226 of the Constitution of

India is filed against impugned order dated 04.01.2015 passed by

the District Development Officer, Bhavnagar. By the aforesaid

order, the District Development Officer had ordered to pay

compensation of Rs.4,00,000/- in lieu of appointment on

C/SCA/12975/2017 JUDGMENT DATED: 29/06/2022

compassionate ground on the basis of remaining service tenure in

view of Government resolution dated 05.07.2011.

2. Learned Advocate for the petitioner submitted that the

petitioner is son of deceased employee, viz. Sanatbhai Kanayailal

Pandya, who was working as Talati-cum-Mantri and was appointed

on 31.01.1985. It is submitted that on 26.08.2010, the father of the

petitioner expired while on duty. It is submitted that the petitioner

is the legal heir of the deceased employee and is his only son. The

petitioner made an application to respondent No.2-DDO for getting

appointment on compassionate ground on 27.09.2010. It is

submitted that the said application was forwarded by respondent

No.2-DDO to the office of respondent No.1-Secretary, Panchayat

Gram Gruh Nirman & Gram Vikas Vibhag ib 18.06.2011.

2.1 It is submitted that instead of implementing their old

policy regarding compassionate appointment, respondent No.3-

Taluka Development Officer by its letter dated 03.06.2014, i.e.

almost after three years informed the petitioner that as he has not

filled proposal form, the petitioner is responsible for it.

2.2 It is submitted that inspite of the request of the

petitioner to appoint him on compassionate ground, respondent

No.2-DDO passed order that in view of Government resolution

dated 05.07.2011, in lieu of compassionate appointment, a lump

sum compensation of Rs.4,00,000/- is awarded in the name of

C/SCA/12975/2017 JUDGMENT DATED: 29/06/2022

mother of the petitioner, viz. Jasumatiben Sanatbhai Pandya.

2.3 It is submitted that the impugned order is passed

almost after 5 years after making application by the petitioner for

appointment on compassionate ground. It is submitted that the

basis for passing the impugned order is Government resolution

dated 05.07.2011, which is considered to be prospective and not

retrospective. Inspite of this fact, respondent No.2- gave it

retrospective effect.

3. On the other hand, learned Advocate for respondent

No.2 submitted that the General Administration Department passed

resolution dated 05.07.2011 based on the report submitted by the

Committee constituted under the Chairmanship of Principal

Secretary, Planning and after considering the representation of

stakeholders and considering the question of pending applications

too, the Government passed the said resolution. In view of that

resolution and in view of the fact that the person who is entitled to

have pensionary benefit available has to be paid such monetary

compensation and that the widow of the deceased employee has

been paid amount of lump sum compensation in terms of that

Government resolution. It is submitted that widow of the deceased

employee against whom the impugned order is passed has not

come before this Court to question the said order and neither she is

joined in the present petition and therefore, the petitioner is not

entitled to maintain the present petition which is passed in terms of

C/SCA/12975/2017 JUDGMENT DATED: 29/06/2022

GR dated 05.07.2011.

3.1 It is submitted that after completion of procedure,

respondent No.2 prepared the proposal and forwarded the same to

the competent authority of the Panchayat Rural Housing and Rural

Development Department by letter dated 18.06.2011. By letter

dated 21.07.2011, the Development Commissioner returned back

the said proposal to respondent No.2-DDO with a direction to act

according to GR dated 05.07.2011. It is submitted that as no

proposal was received from the beneficiary, respondent No.2-DDO

by letter dated 08.08.2011 sought guidance from the Pancnayat

Department, which made it clear that pending applications of the

dependents for compassionate appointment are required to be

considered according to GR dated 05.07.2011.

3.2 It is submitted that considering the original

applications and affidavits of the widow of the deceased and in view

of GR dated 05.07.2011, respondent No.2-DDO had no other option

but to award a lump sum compensation of Rs.4,00,000/- by order

dated 04.01.2015 and the said amount was deposited in the

account of widow of the deceased employee, viz. Jasumatiben

S.Pandya.

4. Having heard learned Advocates for the parties and

having perused documents on record, it appears that the main

contention of the learned Advocate for the petitioner is that father

C/SCA/12975/2017 JUDGMENT DATED: 29/06/2022

of the petitioner expired on 26.08.2010 and on 27.09.2010, the

petitioner made an application for appointment on compassionate

ground. However, decision with regard to compassionate

appointment was taken by applying GR, which came into force on

05.07.2011 and therefore, the respondents ought to have applied

policy prevailing at the time of death, i.e. in the year 2010. From

the pleadings, it appears that though the claim is made by the

petitioner regarding application of policy of 2010, nothing is placed

on record with regard to the policy which was prevailing in the

year 2010. The old policy of the year 2010 had undergone

substantial changes from time to time and the petitioner has not

taken care to place on record as to how and in what manner, case

of the petitioner is covered under the old policy.

5. Moreover, if order dated 04.01.2015 (impugned at

Annexure-A) is perused, it is clearly coming out that after making

application, the proposal being complete, was sent back for

supplementing the same with necessary documents and also

affidavit which the petitioner had failed to submit in support of his

application and therefore, leaving with no other option, case of the

petitioner was considered as per the prevailing policy and the

amount entitled to was deposited in favour of widow of the

deceased. It appears that widow of the deceased has accepted the

amount and there is no claim made by the widow of the deceased

employee in this regard.

C/SCA/12975/2017 JUDGMENT DATED: 29/06/2022

6. In the decision of the Apex Court in case of Malaya

Nanda Sethy Vs. State of Orissa & Ors., in Civil Appeal

No.4103 of 2022 dated 20.05.2022, relied upon by learned

Advocate for the petitioner to substantiate his case to entitlement

with the policy which is prevailing at the time of death and not at

the time of consideration of application, undoubtedly the ratio may

have been laid down with regard to policy which may be applicable

at the relevant time, however, in the facts of the case, it is found

that the policy which was in place at the time of considering the

application, is correctly applied. Moreover, in this very case, the

Apex Court has held as under:-

"If the object and purpose of appointment on compassionate grounds as envisaged under the relevant policies or the rules have to be achieved then it is just and necessary that such applications are considered well in time and not in a tardy way. We have come across cases where for nearly two decades the controversy regarding the application made for compassionate appointment is not resolved. This consequently leads to the frustration of the very policy of granting compassionate appointment on the death of the employee while in service. We have, therefore, directed that such applications must be considered at an earliest point of time. The consideration must be fair, reasonable and based on relevant consideration. The application cannot be rejected on the basis of frivolous and for reasons extraneous to the facts of the case. Then and then only the object and purpose of appointment on compassionate grounds can be achieved.

7. In case of N.C.Santosh Vs. State of Karnataka &

Ors., reported in (2020) 7 SCC, 617, in para-19, the Apex Court

had held as under:-

C/SCA/12975/2017 JUDGMENT DATED: 29/06/2022

"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."

8. One more aspect which requires serious consideration

is the fact that father of the petitioner had expired in the year 2010

and in 2011, case of the petitioner was considered in accordance

with policy prevailing and in the year 2015, as per the policy,

compassionate compensation was paid to the widow of the

deceased and it is only in the year 2017 that the present petition is

filed and therefore, from the chronology of events also, case of the

petitioner does not fit into the objective of compassionate

appointment, which is otherwise to provide immediate succor to

the family of the deceased.

9. In view of the aforesaid, no case is made out for

interference. The petition deserves to be and is hereby dismissed.

Rule is discharged. No order as to costs.

Sd/-

(A.Y. KOGJE, J) SHITOLE