PATHAN SALMANKHAN RASULKHAN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Rule. Ms.Megha Chitaliya, learned Assistant Government Pleader, waives service of notice of Rule on behalf of respondents. The present petition under Article 226 of the Constitution of India is filed for the purpose of seeking following reliefs :

(2.) The petitioner has come out with a case in present petition that father of the petitioner was posted as Projectionist in Class?III with Gujarat Educational Technology Bhavan, Ahmedabad and was appointed as such on 18.2.1977. It is the case of the petitioner that while he was in service, he had expired on 11.9.2009 and the petitioner being the son and the legal heir of father, submitted an application along with all necessary details and documents for giving him an appointment on compassionate basis. Said application was given without any undue delay on 30.10.2009 well within the stipulated time. 2. 1 It is further the case of the petitioner that pursuant to the receipt of said application, the Deputy Director of Education sent a proposal for giving appointment to the petitioner. However, the respondent No.2 vide letter dated 15.7.2010 asked for certain details and particulars which were again forwarded by the Deputy Director to respondent No.2 authority vide communication dated 21.01.2010. Despite the aforesaid full particulars having been submitted which were demanded, no response was given though the petitioner has repeatedly made inquiries regarding the outcome of the said particulars which have been sent. The petitioner was sent pillar to post which has ultimately constrained the petitioner to submit an application on 12.6.2014 under the Right to Information Act for the supply of certain details which came to be forwarded on 18.7.2014. Pursuant to the said communication, a further communication was made by the petitioner on 11.8.2014 soliciting certain further details which then replied by the Government on 8.9.2014. The details were already supplied against this letter dated 18.7.2014. It is further the case of the petitioner that the communication and the application dated 18.7.2014 was making it clear that details qua Serial No.1 conveniently supplied and mentioned in the reply as to why no consideration has been given qua the application of the petitioner for appointment on compassionate ground. It is further the case of the petitioner that till filing of the petition, the authorities appeared to have considered the application and the said application is still pending. As a result of this, left with no other alternate, the petitioner is constrained to approach this Court by way of present petition under Article 226 of the Constitution of India for the reliefs which are sought reflecting hereinabove. 2. 2 The present petition has been entertained by this Court vide order dated 13.4.2015 and considering the averments which are made, a detailed order came to be passed while issuing notice on 4.5.2015. Said order reads as under : 13.4.2015 2. 3 Subsequently, it appears that from time to time, the matter got adjourned and ultimately, it has come up for consideration before this Hon'ble Court for adjudication in which the learned advocates have requested the Court to finally dispose of the petition and upon such request, the Court has heard the learned advocates for the respective parties on 23.7.2018.

(3.) Ms. Mamta R. Vyas, learned advocate appearing on behalf of the petitioner, has submitted that though the petitioner had applied well within the time immediately after the death of father, still the authority has chosen to deal with application for a considerable long time and this inaction on the part of the authority is unjust and arbitrary. It has also been pointed out that the father of the petitioner had served throughout in his blotless service career with the Gujarat Educational Technology Bhavan, Ahmedabad right from February,1977 till 2009 and, therefore, the petitioner being eligible legal heir, is entitled to seek the appointment on compassionate basis. 3. 1 It is further contended by learned advocate for the petitioner that it is the case of the authority that this compassionate employment is to be made available to the petitioner. On the contrary, the policy is applicable with more vigor with the respondent authority and, therefore, there is no just reason of any nature to deny such kind of employment to the petitioner. Learned advocate has further contended that the reason which has been assigned while considering the request on 15.1.2010 is per?se contrary to the settled position of law. On the contrary, the policy and the terms which are prevailing as on the date of the application has to be considered instead of subsequent change in the policy. It has also been contended that there are series of decisions in which law is settled down that the date of application is to be considered as a relevant yardstick for considering or refusing the request. According to learned advocate for the petitioner, at the time when the application was made, prevailing policy was sufficient enough to extend the benefit of compassionate appointment to the petitioner. It has further been contended that inaction on the part of authority for a pretty long period may be allowed to be prejudicially affected to the petitioner for no fault on is part. On the contrary, repeatedly the petitioner has knocked the doors of the respondent authority to expedite and grant the employment as demanded. It is submitted that on the contrary, in similar set of circumstance with respect to municipal school board, the coordinate bench of this Court vide order dated 19.6.2018 passed in SCA No.12828 of 2012, has categorically propounded that policy prevalent at the particular time is required to be taken into consideration and the subsequent change can be allowed to scuttle the request and relying upon said decision, learned advocate has canvassed that petitioner being fully eligible and fulfilling the zone of consideration for seeking compassionate appointment, the authority ought to have expeditiously granted the same. Resultantly, learned advocate for the petitioner has requested the Court to issue some directions so as to see that pending application can be dealt with. Learned advocate for the petitioner has submitted that on the contrary, what has been prayed for is innocuous as prayer (A) is sought for the purpose of direction upon the respondent authority to consider the application as per the policy prevailing at the time of death of father of the petitioner and that has been well supported by aforesaid decision of coordinate bench of this Court. Resultantly, a request is made to direct the authority to consider the application. No other submissions have been made.