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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SANGEETA K. VISHEN, J.
Nileshkumar Batuklal Parmar – Petitioner
Versus
Joint Director of Education (Secondary) and Others – Respondents
Special Civil Application No. 15412 of 2017
Decided On : 26-03-2021
Constitution of India, 1950 - Article 226 - Seeking compassionate appointment – Seeking direction to respondents to issue order of compassionate appointment to petitioner and in alternative, to pay lump-sum compensation as per Government Resolution - Case of petitioner that he was working under the respondents as Vijdi Gar Helper since for more than 14 years and his services have been terminated without following due procedure of continued and as and when respondent no. 2 started scheme, he be given priority without back wages. According to him, he has completed 240 days of service. law on 01.03.1996. It is contended by petitioner that he has filed Reference (L.C.J.) before Labour Court - Mother of petitioner was working as peon in respondent no. 3 School which was run by Trapad Gram Panchayat and while working, she passed away on 23.08.2005. Since financial condition of petitioner was pitiable, he submitted an application dated 20.9.2005 seeking compassionate appointment.
Finding of the court: At the time of deciding the application the petitioner was very much qualified for being offered compassionate appointment. Considering the said position, on both the counts, there was no reason available on the part of the Section Officer, Education Department to have rejected the application of the petitioner inasmuch as, firstly, the policy prevailing was 10.3.2000 which was requiring the educational qualification of 4th standard pass; and secondly, even if applying the subsequent policy, the petitioner had already cleared the qualification of 10th standard pass. Therefore, there was a thorough non-application of mind on the part of the Education Department in considering the application of the petitioner - Action of State Government in not offering the compassionate appointment to the petitioner, is illegal and arbitrary, which deserves to be quashed and and set aside.
Result: Petition allowed
JUDGMENT :
SANGEETA K. VISHEN, J.
1. With the consent of the learned Advocates for the respective parties, the present petition is taken up for final hearing.
2. Issue Rule. Mr. Rohan Shah, learned Assistant Government Pleader waives service of rule on behalf of the respondent nos. 1 and 2 and Mr. Bhunesh C. Rupera, learned Advocate waives service of rule on behalf of the respondent no. 3.
3. By this petition, inter-alia, under Article 226 of the Constitution of India, the petitioner has prayed for direction to the respondents to issue order of compassionate appointment to the petitioner and in alternative, to pay lump-sum compensation as per the Government Resolution dated 5.7.2011.
4. Tersely stated are the facts:
4.2 Certain details were asked for by the Joint Director, vide letter dated 16.08.2007 from the District Education Officer who, in turn, addressed a letter dated 17.10.2007 to the Respondent no. 3 and upon receipt of the details, forwarded the same to the Office of the Commissioner. Thereafter, the office of the Commissioner of Higher Education, addressed a communication dated 20.11.2008 to the Deputy Secretary Education Department, recommending to offer the compassionate appointment to the petitioner.
4.3 The State Government in its Education Department, after a period of more than one year, vide letter dated nil rejected the application on the ground that the petitioner is lacking in experience of standard 10th pass as required vide Government Resolution dated 25.04.2008 of the General Administration Department. The office of the Commissioner of Higher Education vide communication dated 9/16.2.2010, in turn, informed the principal of the respondent no. 3 that since the petitioner is not eligible for compassionate appointment, the application is rejected.
4.4 Immediately thereafter vide communication dated 5.3.2010, the respondent No. 3 requested the Education Department to reconsider the application of the petitioner on sympathetic ground inasmuch as, the Government Resolution dated 25.4.2008 will not govern the application for, the mother of the petitioner died on 23.08.2005. Further, the petitioner has also cleared the standard 10th in the year 2006.
4.5 The District Education Officer, Bhavnagar, addressed a communication dated 30.4.2010 to the Joint Director Education Department informing that at the time of death of the employee, the petitioner was possessing the qualification of standard 4th pass; however, in October 2006, the petitioner has cleared standard 10th. According to the petitioner, both the communications dated 05.03.2010 as well as 30.04.2010, though were addressed to the Education Department as well as Joint Director (Education), remained undecided.
4.6 In the meantime, the State Government in its General Administration Department, issued the Government Resolution dated 5.7.2011 making provisions for payment of compensation in lieu of the compassionate appointment, replacing the earlier policies.
4.7 Thereafter, the District Education Officer, Bhavnagar addressed a communication dated 29.06.2017 requiring the respondent No. 3 to provide the information of the cases or applications for compassionate appointment which have been rejected by the State Government. The information was provided accordingly by the respondent no. 3.
4.8 In the meantime, the petitioner came to know about the judgment of this Court in the case of State of Gujarat vs. Bariya Vijaykumar Nanubhai rendered in Special Civil Application No. 12241 of
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