Gularbhoj Dirghakar Bahu Uddeshiya Sahkari Samiti Limited vs Harendra Tomar And Others

Ramesh Ranganathan, CJ

This appeal is preferred by the Gularbhoj Dirghakar Bahu Uddeshiya Sahkari Samiti Limited aggrieved by the order passed by the learned Single Judge in WPSS No. 1648 of 2016 dated 21.03.2017. The first respondent herein filed the said writ petition seeking a writ of certiorari to quash the impugned order dated 15.07.2016 and for a mandamus commanding the respondents to give appointment to the writ petitioner in any suitable post in the office of the respondent no. 4, on the basis of compassionate appointment under the Dying in Harness Rules.

The writ petitioner's case, in short, is that his mother died in harness on 17.03.2006 when he was 16 years old; his mother was survived by the petitioner and two other daughters who were married; he was the only living member who was minor at the time of the death of his mother; he made an application on 20.11.2008, to the fourth respondent, stating that he became major; and he be provided appointment on compassionate grounds; he submitted an application to the third respondent on 25.11.2008 stating that his mother had died on 17.03.2006 in harness, and there was no other major member in his family who was eligible for appointment on compassionate grounds; he was informed that there is no post vacant at that time; the staffing pattern was introduced in the co-operative society on 15.02.2014, by which three posts of clerk were created; several vacancies of Class III posts were advertised in the year 2015; subsequently, the petitioner made a representation on 15.01.2016, in reply to which the third respondent had passed an order on 22.01.2016 stating that, at the time of the death of his mother on 17.03.2006, he was a minor; he made a detailed representation to the fourth respondent on 13.05.2016 and, as he was not considered, he filed WPSS No. 1275 of 2016 which is still pending before this Court; and the present writ petition was filed since the petitioner's request, for compassionate appointment, was rejected by the authorities concerned.

The appellant-society herein filed its counter affidavit in the writ petition, wherein they stated that no application was submitted by the petitioner in the year 2008; the first application was submitted by him only in the year 2015; the petitioner had submitted a false affidavit before this Court contending that he had filed an application, for appointment on compassionate grounds, in the year 2008; the directions issued by the District Assistant Registrar on 03.10.2016 were not binding on the appellant-Society; the management of the appellant-Society met on 24.10.2016, and decided that no action could be taken on the said order by the District Registrar; the petitioner's claim for compassionate appointment was considered, and was rejected by its resolution dated 12.07.2016; and the said resolution has not been questioned in the writ petition.

In the order under appeal, the learned Single Judge held that there was no inordinate delay in filing the application, by the petitioner, seeking appointment on compassionate grounds; the petitioner lost his mother on 17.03.2006, and had applied for compassionate appointment on 20.11.2008; the respondents had kept the matter pending for more than eight years; and the respondents should have sympathetically considered the petitioner's case as he was an orphan. The impugned order dated 15.07.2016, passed by the Committee of Management rejecting the petitioner's application on grounds of delay and laches, was quashed.

Though the counter affidavit of the appellant-Society was on record before the learned Single Judge, wherein the Society had taken a specific plea that the petitioner had submitted an application, seeking compassionate appointment, for the first time in the year 2015, and his claim of having made an application in the year 2008 was not true, this contention, urged by the appellant-Society in the counter affidavit, has not even been noted, much less dealt with in the order under appeal. If, as is stated in the counter affidavit filed by the appellant-Society in reply to the writ petition, the petitioner had made an application for the first time in the year 2015, seeking compassionate appointment on his mother's demise in the year 2006, the question which would then necessitate examination is whether such an application, filed nine years after the demise of an employee, can be entertained for providing compassionate appointment.

Since, this specific assertion, in the counter affidavit, has not even been noted by the learned Single Judge, and the order under appeal was passed on the premise that the petitioner had made an application in the year 2008 itself, we consider it appropriate to set aside the order under appeal, and accordingly do so. WPSS No. 1648 of 2016 is restored to file. It is open to the petitioner to file his rejoinder affidavit within two weeks from today, and thereafter request the learned Single Judge to take up the writ petition for hearing at an early date.

The appeal is, accordingly, disposed of. No costs.