Gujarat High Court
Harshesh Keshavbhai Maheriya vs State Of Gujarat on 1 August, 2024
Author: A.S. Supehia
Bench: A.S. Supehia
NEUTRAL CITATION
C/LPA/79/2020 JUDGMENT DATED: 01/08/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 79 of 2020
In R/SPECIAL CIVIL APPLICATION NO. 15320 of 2013
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
In R/LETTERS PATENT APPEAL NO. 79 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA sd/-
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT 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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HARSHESH KESHAVBHAI MAHERIYA
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR.KRUTARTH K PANDYA(7092) for the Appellant(s) No. 1
MR SAHIL TRIVEDI, AGP for the Respondent(s) No. 1
NOTICE NOT RECD BACK for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 01/08/2024
ORAL JUDGMENT
(PER : HONOURABLE MRS. JUSTICE MAUNA M. BHATT)
NEUTRAL CITATION
C/LPA/79/2020 JUDGMENT DATED: 01/08/2024
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1. The appellant has filed this Appeal under Clause 15 of
the Letters Patent,1865, challenging an order dated 02.08.2016
in Special Civil Application No.15320 of 2013, wherein learned
Single Judge while rejecting the petition has held that modified
scheme of payment of lump sum compensation in lieu of
compassionate appointment under Government Resolution dated
05.07.2011 does not apply in case of the petitioner. It is
further held that as per Clause (vi) of the scheme, the
Government Resolution dated 05.07.2011 shall apply, only to
the pending applications. In this case, the application of the
appellant was subsequent and therefore claim of the appellant
would not be admissible within the parameters of the policy
and therefore, the appellant would not be entitled to claim the
benefits of the Government Resolution dated 05.07.2011.
2. Facts in brief are as under:
2.1 The father of the appellant was working as a Peon in the
office of the Superintending Engineer, Irrigation Mechanical
Circle No.2, O-21, Ahmedabad. On 07.06.2010, father of the
appellant died while in service. Upon death, mother of the
appellant made an application dated 06.07.2010, seeking
appointment on compassionate ground. The application of the
mother of the appellant was rejected for not having requisite
qualification.
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C/LPA/79/2020 JUDGMENT DATED: 01/08/2024
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2.2 Thereafter, on 20.07.2010, brother of the appellant
namely, Divyesh Keshavbhai Maheriya made an application
seeking appointment on compassionate ground, which also
came to be rejected with the reason that as per Notification
dated 16.03.2005 and Circular dated 29.03.2007, the minimum
educational qualification required is 10th standard pass and he
did not possess the requisite qualification. Rejection of the
application dated 20.07.2010 was communicated by letter dated
03.09.2010.
2.3 Thereafter on 17.08.2011, the appellant (original
petitioner) made an application seeking compassionate
appointment. The said application was rejected by an order
dated 14.11.2011. In the order dated 14.11.2011, reliance was
placed on the Government Resolution dated 05.07.2011 stating
that family members of the deceased employees of Class III
and Class IV would be entitled for compensation as per new
Resolution instead of compassionate appointment. As per clause
(vi), only pending applications are to be considered and
therefore application of the appellant cannot be considered.
Reference of rejection of appellants brother's application was
also made. Aggrieved by the said communication, the appellant
preferred captioned writ petition, which came to be rejected.
Aggrieved by the order passed by the learned Single Judge in
the captioned writ petition, this appeal is preferred.
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C/LPA/79/2020 JUDGMENT DATED: 01/08/2024
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3. Heard learned advocate Mr.Krutarth Pandya for the
appellant and Mr.Sahil Trivedi for the respondent.
4. Learned advocate Mr.Krutarth Pandya for the appellant
has submitted that learned Single Judge fell in error in not
considering that the application of elder brother of the
appellant was rejected as he was not possessing the requisite
qualification. Since, application of brother of the appellant was
not decided on its merits, the appellant preferred fresh
application dated 17.08.2011. The application of the appellant
was in continuation and therefore rejection of the application
of the appellant on the ground that the Government Resolution
dated 05.07.2011 would not be applicable in the present case,
is erroneous. Learned Single Judge did not appreciate that
father of the appellant died while in service and immediately
mother of the appellant made an application. The same was
rejected on the ground of not having requisite qualification.
Same happened with an application of his brother- Divyesh
Maheriya. Since none of the applications were decided on
merits, rejection of appellant's application on the ground that
Government Resolution dated 05.07.2011 would not be
applicable is erroneous. Further, the appellant has not
abandoned the cause and since earlier applications have been
rejected without taking into consideration the Government
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Resolution dated 05.07.2011, the order of the learned Single
Judge deserves to be quashed and set aside.
5. On the other hand, learned Assistant Government Pleader
appearing for the respondent has submitted that the order of
the learned Single Judge being just and proper, does not
deserve interference. Hence, this appeal may be dismissed.
6. Considered the facts and documents on record. It is
noticed that it is not in dispute that father of the appellant
died on 07.06.2010 and thereafter immediately, wife of the
deceased (mother of the appellant) made an application on
06.07.2010, which came to be rejected and communicated
accordingly. Thereafter on 20.07.2010, brother of the appellant
made an application seeking compassionate appointment, which
was also rejected by communication dated 03.09.2010.
Thereafter, the scheme for grant of compassionate appointment
was discontinued and Government Resolution dated 05.07.2011
was introduced, providing that family members of the deceased
employees of Class III and Class IV, can be considered for
compensation as per new Resolution instead of compassionate
appointment. After introduction of Government Resolution
dated 05.07.2011, the present appellant has made an
application on 17.08.2011 seeking compassionate appointment.
The same came to be rejected by placing reliance on Clause
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C/LPA/79/2020 JUDGMENT DATED: 01/08/2024
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(vi) of the Government Resolution dated 05.07.2011. Clause (vi)
of Government Resolution dated 05.07.2011, provides that
Government Resolution dated 05.07.2011, would be applicable
in the cases in which the applications are pending. In this case
the appellant made an application after introduction of the
Government Resolution dated 05.07.2011 and therefore, we
could not see any error in the findings recorded by the learned
Single Judge in the order dated 02.08.2016.
7. One more aspect, which needs to be considered is, that
Hon'ble Supreme Court in the case of Treasuries in Karnataka
and others vs. V. Somyashree reported in (2021)12 SCC 20,
held as under:
"10. The law laid down by Court in N.C.Santhosh on grant of
appointment on compassionate ground can be summarized as
under:
10.1 That the compassionate appointment is an exception to the
general rule;
10.2 That no aspirant has a right to compassionate appointment;
10.3 The appointment to any public post in the service of the
State has to be made on the basis of the principle in accordance
with Articles 14 and 16 of the Constitution of India;
10.4 Appointment on compassionate ground can be made only on
fulfilling the norms laid down by State's policy and/or satisfaction
of the eligibility criteria as per the policy;
10.5 The norms prevailing on the date of the consideration of the
application should be the basis for consideration of claim for
compassionate appointment."
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Thus, the policy prevalent stipulates that the applications
pending on date of the Government Resolution dated
05.07.2011 will be considered. In this case on the date of G.R.
dated 05.07.2011, application of appellant was not pending.
Further, intent and object for introduction of scheme for
compassionate appointment is to enable the family of deceased
employee to tide over the sudden crises due to death of the
bread-earner which has left the family in penury and without
any means of livelihood. The purpose is to give gainful
employment to one the dependent of the deceased who may be
eligible for such appointment. Thus, the compassionate
appointment is not a vested right, which can be exercised at
any time in future. Granting of such benefits would frustrate
the intent and object of the scheme to provide immediate
assistance to the family in destitute.
8. In view of the above, there being no merits in the
present appeal, the same is hereby rejected. The captioned
Civil Application (for stay) also stands disposed of accordingly.
Notice is discharged.
sd/-
(A. S. SUPEHIA, J)
sd/-
(MAUNA M. BHATT,J)
DIPTI PATEL/25...
