JUDGMENT :

1. Heard learned advocate Mr. Hardik C Rawal for the petitioner and learned advocate Ms. Mamta R Vyas for the respondent.

2. By way of this petition under Article 226 and 227 of the Constitution of India the petitioner has prayed for quashing and setting aside the judgment and order passed by the learned Industrial Tribunal no.1 in Reference IT No.198 of 1999 dated 31.01.2009, whereby, the industrial Tribunal Court No.1 has issued direction upon present petitioner to appoint the respondent herein, by way of compassionate appointment on the post of clerk or helper within a period of 20 days from the date of publication of award.

3. Brief facts leading to the present petition are stated as under:

3.1 It is the case of the respondent that his father was working as conductor in the petitioner Corporation and died on 13.04.1997 while he was on duty. At the time of death of father of the respondent as per the case of respondent the condition of the family was not good. And it was upon the respondent to enshoulder the responsibility of maintaining the family. As cane be seen from the award at the relevant point of time the respondent was a minor and on attaining the majority he made an application for seeking compassionate appointment vide application dated 27.05.1998. and 19.07.1998, however, as can be seen from the award the present petitioner corporation replied to him that as per the rules he was not entitled for compassionate appointment for the reason that his elder brother Shailesh Trikamji Pandya was already serving in the petitioner Corporation as Conductor and he was staying with the deceased father of the respondent and since he was given benefit of settlement, more particularly Clause 29 of the settlement upon death of the father of the deceased respondent. Therefore, the respondent is not entitled to the compassionate appointment though any order of rejection is not produced on record since the aforesaid facts are stated in the award under challenge the same has been referred in this order.

3.2 Being aggrieved by the aforesaid reply the respondent herein preferred reference IT No. 198 of 1999 seeking compassionate appointment and ultimately the Industrial Tribunal No.1. vide award dated 31.01.2009 partly allowed the reference and directed the petitioner to appoint the respondent as Clark or helper by way of compassionate appointment within a period of 30 days from the date of publication of award, the Industrial Tribunal considered the fact that there is settlement arrived at between the petitioner and the Union as per that settlement clause no.29 is in respect of providing employment to the employees of Corporation who have completed 10 years of service, whereas clause 30 is in respect of compassionate appointment. For the purpose of this petition, what is relevant is that as per clause 29 is about providing compassion appointment and as per clause 30, if a person while performing duty found to be incapable physically to perform the duty or is died in that case the dependent of the concerned employee was held eligible for applying for compassionate appointment for a period of 5 years from the date on which the employee has died and in case of minor within a period of 1 year from the date on which he attains the majority. Minors were also permitted to apply for compassionate appointment. In Clause 30 which is reproduced in the award states that the Corporation shall make attempts to absorb the applicant considering his education qualification as well as the availability of the post. Only the employees who are in active duty and meeting with the requirement of permanent incapability, in case of death then only they will be entitled for Clause 30.

3.3 By considering the aforesaid Clause the Labour Court held that since the elder brother of the respondent was appointed in the petitioner Corporation by getting benefit of clause 29, during the life time of the deceased father of the respondent. As per Clause 29 and Claus