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2024 Supreme(Guj) 2112
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
VAIBHAVI D. NANAVATI, J.
SURESHBHAI SAGARBHAI RATHOD – Petitioner
Versus
STATE OF GUJARAT – Respondent
Special Civil Application No. 927 of 2010
Decided On : 16-10-2024
The court affirmed that the petitioner’s compulsory retirement was invalid as it relied on an incorrect policy, emphasizing adherence to the compassionate appointment policy applicable at the time of appointment.
Headnote:(A) Constitution of India - Article 226 - Writ jurisdiction - Compulsory retirement of petitioner from Junior Clerk position challenged - Petitioner appointed on compassionate grounds after father's death - Inquiry report found no misconduct but relied on incorrect policy - Court quashed retirement order and directed payment of benefits. (Paras 11, 11.1)
(B) Compassionate Appointment - Policy considerations - The petitioner’s appointment was sanctioned under the policy of 1997, not the 2000 policy cited by the respondents, which was inapplicable. (Paras 10, 11)
Facts of the case:
The petitioner applied for compassionate appointment after the death of his father, a Ward Servant, but faced rejection due to family income exceeding Rs.2000. A second application was made, leading to eventual appointment in 1998. (Paras 3.1, 3.4)
Findings of Court:
The inquiry report indicated no misconduct but incorrectly applied the 2000 policy instead of the relevant 1997 policy. The court found the retirement order unjustified. (Paras 10, 11.1)
Issues: Whether the petitioner was entitled to compassionate appointment under the correct policy and if the retirement order was justified. (Paras 10, 11)
Ratio Decidendi: The court emphasized that the petitioner’s appointment was valid under the 1997 policy, and the reliance on the 2000 policy was erroneous, leading to the quashing of the retirement order. (Paras 11, 11.1)
Result: Petition allowed; retirement order quashed and benefits directed to be paid.
JUDGMENT :
VAIBHAVI D. NANAVATI, J.
1. By way of present petition, the petitioner herein has challenged the impugned order dated 22.12.2009 duly produced at Annexure-A, whereby, the petitioner herein is compulsorily retired from the post of Junior Clerk in the Civil Hospital.
2. Heard Ms. Nimisha J. Parekh, learned advocate appearing for the petitioner and Ms. Pooja K. Ashar, learned advocate appearing for the respondents.
3. Brief facts leading to the filing of the present petition read thus:
3.1 The petitioner herein applied for appointment on compassionate ground upon expiry of the petitioner’s father during the service on 04.05.1996, who was working as a Ward Servant in the Civil Hospital. The first application made by the petitioner on 22.01.1997 came to be rejected on 16.08.1997 on the ground that the mother of the petitioner works with the department and the petitioner’s family income exceeds Rs.2000/-. The said order is duly produced at Annexure-B.
3.2 On 02.09.1997, the petitioner made second application seeking employment on compassionate ground pointing out that the petitioner was residing with his father and all the family members were dependent on the father and that, the family is in miserable condition. A ration card was placed on record pointing out the fact that the family members were residing with the father.
3.3 On 24.02.1997, the Chief Medical Officer intimated to the petitioner that the ration card for showing separate residence should be prior to the death of the father of the petitioner. The petitioner also submitted the copy of the earlier ration card. The respondent No. 2 recommended the case of the petitioner for employment on compassionate ground to the respondent No. 1-Department. The respondent No. 1, on 23.06.1998, granted sanction of the Government to the respondent No. 2 to appoint the petitioner on compassionate ground in Class-III. In view of the sanction granted by the respondent-State, on 11.07.1998, the respondent No. 2 compassionately appointed the petitioner as Junior Clerk in the Civil Hospital.
3.4 After a span of almost 7 years, the respondent No. 2 gave statement of accusation on 22.11.2004. The petitioner filed reply on 20.01.2005. On 02.02.2008, the respondent No. 2 decided to initiate departmental proceedings against the petitioner. Upon conducting such departmental proceedings, the deposition of the respondent No. 3 was also recorded. The Inquiry Officer submitted report on 30.03.2009 and the said report states that cheating is not proved but the service having been given against the aim of the resolution, the statement of accusation stood partly proved. The petitioner replied for re-clarifying the final inquiry report but, the respondent No. 2 resorted the mode of departmental inquiry for the purpose of any how removing the petitioner from the job for some oblique personal purposes of the some interest persons. The impugned order dated 22.12.2009 came to be passed compulsory retiring the petitioner.
4. Ms. Nimisha J. Parekh, learned advocate appearing for the petitioner, submitted that the petitioner herein applied for appointment on compassionate ground disclosing true facts to the competent authority. Reliance is placed on the documents placed on record. It is submitted that the first application of the petitioner dated 22.01.1997 came to be rejected on the ground that the petitioner’s mother was working with the very same department and that, the petitioner’s family income exceeded to Rs.2000/- per month. It is submitted that the petitioner filed second application on 02.09.1997 which is duly produced at Page 24, along with a disclosure stating that the petitioner’s mother is working in one of the department of the Civil Hospital duly produced at Page 26. Reliance is placed on Ration Card details duly produced at Page 27, recommendations from the respondent No. 2 on 09.12.1997 at Page 28, sanction by the respondent-State dated 23.06.1998 duly produced at Page 30. It is submitted that
