STATE OF GUJARAT Vs. HASMUKHBHAI KHEMCHANDBHAI MAKWANA

JUDGEMENT

(1.) In all these appeals, argued and requested to be disposed together, the sole issue presented for resolution by this Court was: whether the policy of the Government for compassionate appointment, prevalent at the time of application for compassionate appointment should govern the decision, or whether the policy and the recruitment rules as prevailing at the time the Government decides to grant or not to grant compassionate appointment should be applicable ?

(2.) Learned AGPs, Ms.Moxa Thakker and Mr.N.J.Shah, vehemently argued that after several years of death of a Government employee in harness, to whose heir the policy of compassionate appointment were to be applied, there should be a presumption of good financial condition of the family in distress, which would have otherwise not survived; and while considering such applications, the policy as on the date of such consideration and the relevant recruitment rules have to be taken into account by the authorities concerned. It was submitted that the purpose and policy of making appointment on compassionate ground is obviously and admittedly to help the family of the deceased Government servant and, as held by the Apex Court in State of J.&K. & Anr. Vs. Sajad Ahmed Mir [(2006)5 SCC 766] if sufficient time has elapsed, a family member may not be entitled as a matter of right to an appointment on compassionate ground. The authority would be legally justified in refusing such appointment in view of the successive changes in the policy for making such appointments; and the requirement of higher educational qualification for appointment even on the post of the lowest cadre has to be fulfilled by the applicant. In support of such submission, learned counsel relied upon Government Resolution dated 29.03.2007 wherein minimum educational qualification for appointment on the post in Class-IV, even on compassionate ground, is prescribed to be SSC pass. It was also submitted that the criterion of income of the bereaved family has also undergone changes from time to time and relying upon the Division Bench decision of this Court (Coram: Hon'ble Mr.Justice B.J.Shethna & Hon'ble Mr.Justice M.C.Patel) in Letters Patent Appeal No.83 of 2006, it was submitted that subsequent changes in the rules regarding qualification has to be taken into account, as compassionate appointment was not a matter of right.

(3.) There was no controversy about the fact that in all the judgments and orders of learned Single judge of this Court, which are called into question in each of the appeals, the direction is restricted to considering the cases of the original applicants on the basis of the policy and recruitment rules prevalent at the time of making of the applications for compassionate appointment. The bone of contention was that none of the original applicants could claim any appointment as a matter of right, but each of the applicants was entitled to consideration for such appointment, if he/she were eligible on the date of making of the application, in terms of the policy and the recruitment rules of the State Government which were prevalent at that time. Therefore, the sole issue, as aforesaid, is purely a legal issue as to whether the subsequent changes in the policy or the changes in the requirement of minimum qualification could be applied in the cases of the original applicants. That issue appears to be squarely covered by recent decisions of the Supreme Court, which are quoted and followed in most of the impugned judgments. Reference may be had to the clear observations recently made by the Apex Court in State Bank of India and others Vs. Jaspal Kaur [(2007)9 SCC 571], wherein the pertinent observations read as under: