SURESHBHAI SOMABHAI NAYANI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) By preferring this petition under Articles 226 and 227 of the Constitution of India, the petitioner has, inter alia, prayed that the impugned communication dated 03.04.2008 issued by respondent No.1 State of Gujarat, whereby the application of the petitioner for the grant of compassionate appointment has been rejected, be quashed and set aside.

(2.) Briefly stated, the facts of the case are that Smt.Rekhaben Rameshchandra Kabira, the wife of the petitioner, was appointed as a Vidya Sahayak by the order dated 23.01.2001, on a fixed monthly pay of Rs.2,500/. By an order dated 29.03.2006, she was placed in the regular pay scale of Rs.40001006000. Unfortunately, on 11.08.2007, she died in harness by drowning while crossing a culvert on her way to school on a special assignment. Shortly thereafter, the petitioner made an application dated 10.09.2007 to the first respondent, requesting to be granted appointment on compassionate grounds. This application has been rejected by the above mentioned order. Aggrieved thereby, the petitioner has approached this Court.

(3.) It is submitted by Mr.Anand B. Gogia, learned advocate for the petitioner, that the reason for the rejection of the petitioner's application as reflected in the impugned order is that, the deceased had not completed five years of regular service. The petitioner, therefore, is not entitled to be granted compassionate appointment as per the Government Resolution dated 10.03.2000. It is submitted that this reason is incorrect, as the deceased was appointed as Vidya Sahayak after following the regular procedure for appointment. The appointment of a Vidya Sahayak is always on a vacant post which can be filled up only after following the prescribed procedure. It cannot be said to be an irregular appointment. Learned counsel for the petitioner has submitted that as per the Bombay Primary Education Act, 1947, as well, especially, Section 13(2), clauses (d) and (dd) thereof, the post of Vidya Sahayak is considered as a statutory post, therefore, it cannot be said that the deceased was not a regularly appointed teacher.