C.L. Soni, J.@mdashThe appellant is the original petitioner who preferred the petition under Articles 226 and 227 of the Constitution of India seeking to quash and set aside the order dated 12.1.2012 rejecting the application of the appellant for compassionate appointment. The appellant also sought direction in his petition against the respondents to consider his case for compassionate appointment.
2. The facts not in dispute are that the father of the appellant who was serving as Deputy Mamlatdar, expired on 7.11.2001. Since the appellant was minor, the mother of the appellant made application on 2.2.2002. The Collector recommended for giving compassionate appointment to her. However, the respondent No. 2 informed the Collector that the compassionate appointment could not be given to her as she was not holding required qualification. The appellant became major and acquired qualification of graduation. He, therefore, applied on 28.2.2008 for compassionate appointment. However, the respondent No. 2 informed the Collector that the application of the appellant could not be considered as the same was not within the stipulated period of six months after the demise of his father. The Collector, however, recommended the case of the petitioner to the respondent No. 1 that since the application of the mother of the appellant was within time limit but since her application was rejected on the ground that she was not having sufficient qualification, the case of the appellant was required to be considered. Since nothing was done, the appellant preferred Special Civil Application No. 12536 of 2011 and the learned Single Judge by order dated 30.8.2011 directed the respondents to reconsider the decision taken by the respondent No. 1 dated 18.11.2008 on the basis of the policy prevailing at the relevant time when the father of the appellant had expired. Pursuant to such direction, decision by impugned order dated 12.1.2012 on the application of the appellant was taken whereby his application came to be rejected as stated above, which was under challenge before the learned Single Judge.
3. Learned Single Judge rejected the petition by placing reliance on the judgment in the case of
4. We have heard learned advocates for the parties.
5. Learned advocate Mr. Chetan Pandya for the appellant submitted that at the time when the mother of the appellant made application for compassionate appointment, the policy provided that if the appointment on Class IV post could not be made on account of lack of qualification, the person seeking appointment on compassionate ground could be given such appointment for which minimum qualification was not required. Mr. Pandya submitted that as per the policy prevailing at the relevant time when the mother of the appellant had made application, though she was very much entitled to the post like Helper, Sweeper, etc., she was not offered such appointment. Mr. Pandya submitted that since the appellant was minor at the relevant time, he could not have applied for compassionate appointment, however when he became major, his case could have been considered for such appointment, especially when the application of his mother was within the time limit. Mr. Pandya submitted that when the decision on the application of the appellant was taken in the year 2008, the appellant was very much entitled to compassionate appointment as per the policy prevailing. However, simply on the ground that the application of the appellant was not within the time limit of six months from the date of death of his father, he was refused compassionate appointment which was not permissible. Mr. Pandya submitted that when the learned Single Judge directed to reconsider the case of the appellant on the basis of the decision of the Division Bench of this Court and of the Madras High Court, the case of the appellant was required to be considered irrespective of the ground of delay. Mr. Pandya thus urged to allow the appeal.
6. Learned Assistant Government Pleader Mr. Rutvij Oza appearing for the respondents submitted that at the relevant time, only the mother of the appellant was entitled to make application for compassionate appointment which she made and since she was not holding requisite qualification, such application was not accepted. Mr. Oza submitted that since the decision was already taken on the application of the mother of the appellant, the appellant was not entitled to make any application for compassionate appointment after be became major. Mr. Oza submitted that as per the policy prevailing when the father of the appellant expired, the application for compassionate appointment was to be made within six months from the date of death of an employee but, the appellant made application many years after the death of his father and therefore, there was no question of giving any relief to the appellant as the appellant was not entitled to compassionate appointment under the policy prevailing at the relevant time. Mr. Oza submitted that the concerned authority when took impugned decision dated 12.1.2012 after the learned Single Judge of this Court directed to reconsider the case of the appellant, committed no error as the said decision is in consonance with the policy prevailing at the relevant time for compassionate appointment. Mr. Oza submitted that in any case, now, there is change in the policy for compassionate appointment as per which, the Government has now decided vide resolution dated 5.7.2011 to grant only ex-gratia compensation in lieu of compassionate appointment. However, such benefit is available only in respect of the applications which have remained pending. Mr. Oza thus urged to dismiss the petition.
7. Having heard learned advocates for the parties, it appears that there is no dispute about the fact that when the mother of the appellant made application for compassionate appointment, the same was within the time limit prescribed for such appointment. In fact, it is also not in dispute that the Collector had recommended her case for compassionate appointment, however such recommendation was not accepted on the ground that the mother of the appellant was not possessing sufficient qualification. It is required to be noted that the required qualification for Class-IV post was 4th Std., whereas the mother of the appellant was holding qualification of passing 3rd Std. But, as could be seen from the copy of policy dated 7.9.2002 for compassionate appointment at Annexure-R-II, the provision was also made to give compassionate appointment even to those persons who did not possess qualification for Class-IV post. In the said policy, it is stated that for appointment to Class-IV post, required qualification was of passing 4th to 9th Std. However, it is further provided in the said policy that if no qualification is provided for the posts, like Hamal, Sweeper, Water Server, etc., the appointment could be given on such posts even to uneducated people. Therefore, if at the relevant time, no qualification was prescribed for the above such posts, the mother of the appellant could have been offered appointment. However, the fact remains that the recommendation of the Collector for giving compassionate appointment to the mother of the appellant was not accepted on the ground that she was not possessing the qualification of minimum of 4th Std. for Class-IV post.
8. In light of above such facts, when the appellant made application for compassionate appointment on his becoming major, his case could have been considered by considering his application within time limit. However, it was not so considered by the order dated 8.11.2008 at Annexure-J on the ground that the appellant did not make application within six months as provided in the earlier policy.
9. At this stage, it is required to be noted that even after the above-said decision was taken, the Collector made recommendation dated 23.6.2009 at Annexure-K for the appellant to the Government stating that the mother of the appellant had made application within the time limit and at that time, the appellant was minor and now, when the appellant attained majority, his application was rejected on the ground that it was made after six months. It is further stated that first application was made within six months but the mother of the appellant was not offered appointment and therefore, the application of the appellant is required to be considered as made within time limit. However the case of the appellant was not considered and therefore, the appellant had approached this Court by filing Special Civil Application No. 12536 of 2011 as stated above wherein learned Single Judge issued direction to reconsider the decision.
10. In the case of Syed Khadim Hussain Vs. State of Bihar and Others reported in (2006)9 SCC 195, Hon''ble Supreme Court has held and observed in para 4 to 6 as under:-
"4. We have heard the appellant''s counsel and counsel for the respondent. Counsel for the appellant points out that after the death of the government servant his wife submitted an application and it was rejected without giving any reasons and the counsel for the State submits that the same must have been rejected as it was not in the prescribed format. If the applicant had not submitted the application in the prescribed format, the State authorities should have asked the applicant to submit the application in the prescribed format giving out the details of the procedure. In the matters of compassionate appointments the authorities should extend the service in an effective manner so that the eligible candidate may avail the opportunity. Though the orders of rejection of the application of the appellant''s mother was not challenged the appellant pursued the matter and submitted the application later. The contention of the counsel for the State is that the application filed after 5 years after the death of death of the government employee will not be considered and he further submitted that the application filed on 7.9.1995 was rightly rejected by the authorities.
5. We are unable to accept the contention of the counsel for the State. In the instant case, the widow had applied for appointment within the prescribed period and without assigning any reasons the same was rejected. When the appellant submitted the application he was 13 years'' old and the application was rejected after a period of six years and that too without giving any reason and the reason given by the authorities was incorrect as at the time of rejection of the application he must have crossed 18 years and he could have been very well considered for appointment. Of course, in the rules framed by the State there is no specific provision as to what should be done in the case the dependents are minor and there would be any relaxation of age in case they did not attain majority within the prescribed period of submitting application.
6. As the widow had submitted the application in time the authorities should have considered her application. As eleven years have passed she would not be in a position to join the government service. In our opinion, this is a fit case where the appellant should have been considered in her place for appointment. Counsel for the State could not point out any other circumstance for which the appellant would be disentitled to be considered for appointment. In the peculiar facts and circumstances of this case, we direct the respondent authorities to consider the application of the appellant and give him appropriate appointment within a reasonable time at least within a period of three months. The appeal is disposed of in the above terms. No costs."
11. In light of the above decision and in the facts of the case, we find that the application of the appellant could have been considered as per the policy prevailing when the impugned decision dated 12.1.2012 was taken instead of rejecting the application of the appellant.
12. Learned Single Judge, therefore, ought not to have dismissed the petition by relying on the decision in the case of M. Selvanayagam (supra).
13. The State Government has given go-bye to the policy of giving compassionate appointment and has decided to give ex-gratia compensation vide resolution dated 5.7.2011 which was brought to our notice. We are of the view that since by virtue of the order dated 30.8.2011 passed in Special Civil Application No. 12536 of 2011, which was after the policy dated 5.7.2011, the respondents were required to reconsider the case of the petitioner as per the policy prevailing earlier, the application of the petitioner for all purposes could be said to have been pending for reconsideration as on 5.7.2011 when the policy for ex-gratia compensation came into force. In such view of the matter, the application of the petitioner could have been considered under the policy dated 5.7.2011 by treating the same as pending application. The application of the appellant for compassionate appointment is, therefore, required to be considered by the respondents under the policy dated 5.7.2011 for ex-gratia compensation in lieu of compassionate appointment.
14. For the reasons stated above, we set aside the impugned order dated 2.7.2012 passed by the learned Single Judge and direct the respondents-the concerned authorities to treat the application of the appellant-petitioner for compassionate appointment as pending application and to consider such application under the policy introduced by the State Government vide resolution dated 5.7.2011 for grant of ex-gratia compensation in lieu of compassionate appointment. The respondents shall take decision on such application of the appellant within THREE MONTHS from the date of receipt of this order. The appeal is allowed accordingly. No order as to costs. D.S.
