Pathan Salmankhan Mohamad Sidiki vs Ahmedabad Municipal Corporation

Abhilasha Kumari

Rule. Mr. Deep D. Vyas, learned advocate, waives service of notice of Rule on behalf of Respondent. On the facts and in the circumstances of the case and with the consent of the learned advocates for the respective parties, the petition is being heard and finally decided today.

This petition, under Article 226 of the Constitution of India, has been filed with the following prayers:

(A) Your Lordships may be pleased to Admit and Allow this petition;

(B) Your Lordship may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction, directing the Respondent to give compassionate appointment to the Petitioner forthwith in the interest of justice and fairness of things;

(BB) Your Lordship may be pleased to set aside order Dt.10/7/2008 passed by Respondent, in respect of rejection of compassionate appointment application and direct the Respondent to consider the same in lights of facts of the case and oblige.

The brief facts of the case are that, the father of the Petitioner, who was working as a permanent Class-IV employee in the Health Department of the Respondent - Ahmedabad Municipal Corporation, expired on 20.05.2007, while in harness. At the relevant point of time, the age of the Petitioner was seventeen years. The mother of the Petitioner made application dated 06.06.2007 for grant of appointment on compassionate grounds to the Petitioner on his completing eighteen years. On receipt of the application, the Respondent-Corporation sent letter dated 02.08.2007 seeking certain documents. Pursuant thereto, the requested documents were sent with covering letter dated 06.08.2007, which was duly received by the Respondent- Corporation. There was no response from the Respondent-Corporation. The Petitioner reached the age of majority on 10.05.2008. The Petitioner again made a representation dated 30.06.2008 to the Respondent-Corporation requesting them to give appointment to him on compassionate grounds. On 20.07.2008, the Respondent- Corporation denied appointment on compassionate grounds to the Petitioner as he was not a major at the time of death of his father. Thereafter, Anr. letter dated 02.03.2010 has been sent by the Petitioner, which has elicited no response.

An affidavit-in-reply has been filed by the Respondent-Corporation wherein it has been admitted that the mother of the Petitioner had made an application on behalf of the Petitioner dated 12.06.2007, requesting for appointment on compassionate grounds for the Petitioner on completion of eighteen years. It is averred in the affidavit that it was suggested by the Respondent-Corporation that he could not be considered as he was not a major but the mother of the Petitioner could be eligible. It is further stated that the mother of the Petitioner has preferred application dated 21.06.2007 for grant of compassionate appointment to her but the same has not been pursued.

Mr. Yogen Pandya, learned advocate for the Petitioner, has submitted that the case of the Petitioner is squarely covered by the judgment of this Court in Ajitsinh Chandrasinh Gohil v. Additional Director General of Police and Anr. - 2007(3) GLH 313, whereby, this Court has interpreted policy dated 10.03.2000 and has held that the said policy does not provide that if the dependent was minor at the time of the death of his father, his case cannot be considered for such appointment. It is further submitted that in the said judgment, it has been laid down that if the dependent is a minor at the time of death of an employee, the application can be made by the dependent within two years from attaining the age of majority. In the present case, as the Petitioner has attained majority on 10.05.2008, and the application has been made on 30.06.2008, the Respondent is bound to consider the case of the Petitioner for grant of compassionate appointment. The learned advocate for the Petitioner has brought to the notice of this Court, order dated 27.08.2009 passed in Letters Patent Appeal No. 403 of 2009 in Special Civil Application No. 603 of 2004, whereby, appeal preferred against the above-mentioned decision of the learned Single Judge in Ajitsinh Chandrasinh Gohil v. Additional Director General of Police and Anr. (supra) [being Special Civil Application No. 603 of 2004] has been dismissed in-limine.

I have heard Mr. Yogen Pandya, learned advocate for the Petitioner, Mr. Deep D. Vyas, learned advocate for the Respondent-Corporation and have perused the averments made in the petition and material on record.

In Ajitsinh Chandrasinh Gohil v. Additional Director General of Police and Anr. (supra), the Court has held as under:

Therefore, in view of these provisions of item No. 8 Clause (B) referred to above, in case if the member of the dependent family is minor at the time of death of concerned Government employee, then, it is necessary for the authority to wait till such minor member of dependent family becomes major and in view of that rejection of application on the ground that the Petitioner was not major at the time of death of his father is not sustainable as per the provisions of the policy dated 10.3.2000. It is not the case of the Respondent authority that the case of the Petitioner is not covered by policy dated 10.3.2000. Clarification made by the State Government in 2000 itself is providing that if the member of the dependent family was minor at the time of death of his father or mother or as the case may be, then, it is necessary for such dependent to make such application within the period of two years from the date on which he attains majority. In this case, Respondents have not pointed out before this Court that such application was made by the Petitioner beyond two years from the date of his attaining the age of majority. In view of the aforesaid provisions of item 8 Clause (B) of the policy dated 10.3.2000, Respondents are not justified in rejecting the case of the Petitioner on the ground that he had not become major at the time of death of his father but the Respondents shall have to consider the case of such dependent who become major at the relevant time when his application was being considered....

The resultant effect of the order dated 27.08.2009 passed in Letters Patent Appeal No. 403 of 2009 would be that the judgment in Ajitsinh Chandrasinh Gohil v. Additional Director General of Police and Anr. (supra) has attained finality and the Respondent is bound to consider the case of the Petitioner on the basis of the principles laid down therein, as the Petitioner has made the application well within a period of two years after attaining majority.

Accordingly, the petition is allowed. The action of the Respondent in rejecting the application of the Petitioner is quashed and set aside. The Respondent is directed to consider the case of the Petitioner for grant of compassionate appointment, keeping in view the principles of law laid down in the above-mentioned judgment. The same shall be done as expeditiously as possible, and preferably within a period of three months from the date of receipt of the Writ of this Court.

Rule is made absolute. There shall be no orders as to costs.