JUDGMENT :

(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA)

The central issue to be addressed in this Letters Patent Appeal arising from judgment and order dated 28.6.2022 of learned single Judge, is whether while considering the case of compassionate appointment, the set of rules in vogue at the time of making application for compassionate appointment would be applicable, or the policy prevalent at the time when the application is actually considered for the purpose of grant of benefit, would apply.

2. The prayer in the main petition was to set aside the decision of respondent No.2 – Superintending Engineer, Road and Building Department, denying the petitioner the compassionate appointment. The petitioner was offered lump-sum compensation as per the new policy.

3. The father of the petitioner was an attendant in the office of the respondent Executive Engineer. He died on 22.10.2010 while in service. The petitioner who was legal heir of the deceased employee made an application on 30.11.2010 for appointment on compassionate ground. It was forwarded and processed in the department. It was then also forwarded to the Gujarat Public Service Commission, which finally passed order dated 29.9.2011 granting the benefit of lump-sum compensation to the petitioner.

3.1 When the petitioner made application dated 30.11.2010, the scheme for compassionate appointment provided for giving actual appointment. By the time the decision was taken in respect of the case of the petitioner, the said scheme was discontinued. It was replaced by Resolution dated 5.7.2011, wherein it was contemplated that subject to fulfillment of the conditions of the scheme, instead of actual appointment, the kith and kins of the deceased employee would be entitled to lump-sum compensatory amount of Rs.4 lakhs. The amount has been subsequently enhanced, by issuing another Resolution, it was stated.

3.2 From communication dated 29.5.2012 of the petitioner addressed to Executive Engineer (copy figuring at page No.53), it is revealed that compensation of Rs.4 lakhs was deposited by the authorities in the bank account of the petitioner without his intimation or consent and that the petitioner was not willing to accept the financial aid. It was stated that if the actual appointment was given, the amount would be refunded.

3.3 Learned Single Judge referred to the decisions of the Supreme Court to reiterated the principle that the compassionate appointment is not a matter of right. He relied on decision of the Apex Court in N.C. Santhosh Vs. State of Karnataka[(2020) 7 SCC 617], in which it was observed thus,

"A dependent of a government employee, in the absence of any vested right accruing on the death of the government employee, can only demand consideration of his/her application. He is however disentitled to seek consideration in accordance with the norms as applicable, on the day of death of the government employee." (para 20)

3.4 In other words, learned Single Judge rested his reasoning on the principle that it would be the date of consideration of the application and not the date of making of the application, which would be relevant to decided as to which policy would apply to the case for grant of compassionate appointment. The norms applicable at the time of consideration of the application would apply, it was held by learned Single Judge to finally dismiss the petition holding that the benefit of new scheme under Resolution dated 05.07.2011 was properly granted.

3.5 The appellant relied upon decision of the Supreme Court in Canara Bank & Anr. vs. M. Mahesh Kumar [(2015) 7 SCC 412], in which the view taken by the Supreme Court was that the policy in vogue at the time of making the application by the person seeking compassionate appointment would come into play to determine the eligibility. Also sought to be pressed into service, yet another decision of the Supreme Court in the Secretary to Govt. Department Of Education (Primary) Vs. Bheemesh Alias Bheemappa [AIR 2022 SC 402].

3.6 Th