Point of Law: Legally wedded wife or husband or son or unmarried daughter, who at the time of the death of the concerned employee, is wholly dependent and who is entitled for the family pension or who has been sanctioned the pension, only those persons shall be entitled for the lump sum compensation

JUDGMENT :

1. By this petition, inter alia, under article 226 of the Constitution of India, the petitioner has prayed for quashing and setting aside the order dated 7/9.11.2012 passed by the Assistant Director i.e. respondent no.3 (hereinafter referred to as 'respondent no.3') whereby, the application of the petitioner seeking lump sum compensation in lieu of compassionate appointment has been rejected.

2. Tersely stated are the facts:

2.1 The mother of the petitioner Jashiben B. Solanki was serving as Class-IV employee with General Hospital, ESI Scheme, Gotri Road, Vadodara since 29.7.1982 and she passed away on 12.4.2011. Upon demise of the mother of the petitioner, the petitioner submitted an application dated 12.5.2011 for grant of compassionate appointment, as the petitioner was wholly dependent upon his mother and she was the sole earning member.

2.2 The application dated 12.5.2011 of the petitioner, after travelling inter-departmentally and intra-departmentally, came to be returned vide letter dated 9.8.2011 with instructions to be processed in terms of the Government Resolution dated 5.7.2011. The petitioner, being aggrieved, preferred a writ petition being Special Civil Application No.17940 of 2011 before this Court challenging the communication dated 9.8.2011 as well as praying for quashing and setting aside of the Government Resolution dated 5.7.2011. The said writ petition came to be disposed of vide oral judgment dated 16.3.2012 with a clarification that the application of the petitioner be examined and if it is found to be in order, complying with all the requirements, a decision be taken in accordance with the terms and conditions contained in the Government Resolution dated 5.7.2011. So far as the challenge to the validity of the Government Resolution dated 5.7.2011 is concerned, the same was not accepted.

2.3 In the interregnum, it appears that an application dated nil was submitted by the petitioner to the Director ESI scheme with a request to provide lump sum compensation as per the Government Resolution dated 5.7.2011, if the petitioner is not given compassionate appointment. In the said application, there is a reference to a communication dated 7.10.2011 whereby the request of the petitioner for compassionate appointment has been filed.

2.4 Apropos the oral judgment dated 16.3.2012 and more particularly, clarification contained in the penultimate paragraph, the application of the petitioner came to be considered by the respondents and ultimately, vide letter dated 7/9.11.2012, it came to be rejected on the grounds, namely, that the father of the petitioner is not alive; the family pension has not been sanctioned in the name of the petitioner; and the petitioner is married. Consequently, it is observed that the conditions enumerated in the Government Resolution dated 5.7.2011 are not fulfilled, and therefore, the petitioner is not entitled for lump sum compensation. Being aggrieved, the petitioner has filed the present writ petition with the aforementioned prayers.

3. Upon issuance of the notice, the respondent no. 3 has filed his reply. The averment made by the petitioner that application was rejected on the ground of non-furnishing of No objection certificate by the brother, is denied. It is emphatically stated that the application of the petitioner has been rejected only on the ground that the petitioner was not eligible to claim lump sum compensation as per the Government Resolution dated 5.7.2011. While further elaborating, it is stated that the request of the petitioner was rejected on the ground that the petitioner was married and was not eligible to claim family pension as per clause (ii) of sub- rule (1) of Rule 91 of the Gujarat Civil Services (Pension) Rules 2002 (hereinafter referred to as the 'Pension Rules'), read with condition no. 3(3) of the Government Resolution dated 5.7.2011. That the petitioner was not eligible and entitled for the lump sum compensation inasmuch as, the petitioner has not fulf