STATE OF GUJRAT Vs. KIRIT KUMAR BHIKHABHAU VALA

JUDGEMENT

(1.) THE present Second Appeal has been filed by the appellant-State challenging the judgment and order dated 26-8-2004 in Regular civil Appeal No. 53 of 2003 passed by the learned Jt. District Judge and 3rd Fast Track Court, Junagadh, confirming the judgment and order passed by the trial Court in Regular Civil Suit No. 111 of 2001 by judgment and order dated 29-4-2003 raising substantial question of law as framed. by the court while admitting the appeal and also the substantial questions of law that have been posed in the Memo of Appeal. While admitting the appeal, the Court has posed the following substantial question of law : "whether the Civil Court could have condoned the delay caused in applying for compassionate appointment by the respondent-original plaintiff by going beyond the resolution of the Government?" the learned Government Pleader submitted the substantial questions of law at the time of hearing as follows, which were required to be considered in light of the observation of the Hon'ble Apex Court in the case of Hero Vinoth (Minor)v. Seshammal, reported in AIR 2006 SC 2234 :

(2.) THE short facts of the case, briefly summarized, are that a suit was filed by the respondent-original plaintiff for compassionate appointment on death of his father on 30-6-1985. The deceased father of the plaintiff was serving as Police Constable at Bantwa Police Station and on occurrence of death of the deceased father, Bhikhabhai, on 30-6-1985, the suit came to be filed by the plaintiff being Regular Civil Suit No. 111 of 2001 for compassionate appointment as per the policy of the Government prevailing then vide policy/ guidelines dated 12-5-1977. It has been contended that at time of death of the father, the respondent-plaintiff was a minor aged about 8 years and when he attained majority he made an application for compassionate appointment as per the aforesaid policy/guideline dated 12-5-1977. However, the said application of the respondent-plaintiff was rejected on the ground that the application was required to be made within the stipulated period after attaining majority and as the respondent-plaintiff had not made such an application within the prescribed time after attaining majority, the application for compassionate appointment was turned down, and therefore, Regular Civil Suit No. 111 of 2001 came to be filed. The learned trial Judge, after the evidence was led, decreed the suit by his judgment and order date 29-4-2003 declaring that the plaintiff was entitled to appointment on compassionate ground and the action of the respondents of rejecting the application of the plaintiff was illegal. It was further directed that, on the basis of the application, or a fresh application that may be submitted within 30 days, appointment may be given to the plaintiff.

(3.) THE respondent-State, therefore, filed Regular Civil Appeal No. 53 of 2003 contending, inter alia, that the plaintiff attained majority on 21-5-1995 and he has not applied within 2 years thereafter, i. e. , till 20-5-1997 as provided in the said policy/guidelines and he had made an application on 24-9-1997, which was beyond the time-limit prescribed. It has also been contended that the said policy/guidelines dated 12-5-1997 was produced at Exh. 34, and relying upon the said policy/guidelines, it has also been contended that the object of giving appointment on compassionate ground is to mitigate the hardship caused on death of the sole bread-winner in the family. Such appointment should, therefore, be provided immediately to the family in distress. It has also been contended that the learned trial Judge has given findings contrary to the policy/ guidelines. The first appellate Court, after hearing the parties and appreciating the evidence, dismissed the appeal by its judgment and order dated 26-8-2004 and confirmed the judgment and decree passed in Regular Civil Suit No. 111 of 2001 by the trial Court. Therefore, the present second appeal has been filed by the State raising substantial question of law stated hereinabove.