Shabir Sikandarbhai Kureshi vs State of Gujarat and Others

Abhilasha Kumari, J.—Rule. Ms. Moxa Thakkar, learned Assistant Government Pleader, waives service of notice of Rule on behalf of Respondents. 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) Quashing and setting aside the order dt.21.8.2010 and directing the Respondents to consider the case of the Petitioner for compassionate appointment and appoint him on suitable post.

B) During the pendency and final disposal of this petition, the Respondents may be directed to appoint the Petitioner on compassionate appointment.

C) To grant such and further relief as may be deemed fit and proper.

The brief facts of the case are that, the father of the Petitioner, who was serving as Cash Writer under Respondent No. 3, expired in harness on 12-9-2005. The Petitioner was a minor at the time of death of this father. He made an application for grant of appointment on compassionate grounds to Respondent No. 3 on 30-9-2005. By letter dated 28-7-2006, the Respondent No. 3 asked the Petitioner to apply after attaining the age of majority. The Petitioner attained the age of majority on 9-8 2007 and made application dated 12-9-2007 for grant of appointment on compassionate grounds. By letter dated 13-9-2007, the Respondent No. 3 forwarded the application of the Petitioner to Respondent No. 2. As no decision was taken in the matter, the Petitioner preferred Special Civil Application No. 4207 of 2010 in this Court. By order dated 7-4-2010, this Court directed the Respondents to consider the case of the Petitioner. Accordingly, the Respondents considered the case of the Petitioner and the same was rejected by impugned order dated 21-8-2010, in view of paragraph 8(B) of the Government Resolution dated 10-3-2000 and Government Notification dated 16-3-2005. Aggrieved by this action of the Respondents, the Petitioner has approached this Court by filing the present petition.

Mr. A.S. Supehia, 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 9-8-2007, and the application has been made on 12-9-2007, the Respondents are 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. A.S. Supehia, learned advocate for the Petitioner, Ms. Moxa Thakkar, learned Assistant Government Pleader and perused the averments made in the petition and other documents 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 Respondents are 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 impugned order dated 21.8.2010 is quashed and set aside. The Respondents are 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.