Dismissed

Devendra Upendrabhai Vyas Son of Late Upendra M Vyas v. the Secretary to Govt. of Gujarat

Gujarat HC6 Mar 2007LPA/181/2007

Case brief

AI extract

What is this about?

The Division Bench dismissed an appeal against the Single Judge's rejection of a compassionate appointment petition. Though the Single Judge lacked material and didn't give reasons, the High Court conducted a merits hearing and found the delay excessive because the family survived for 11 years without destitution.

What did the court decide?

The appeal was dismissed; the underlying civil application was disposed of accordingly.

Devendra Upendrabhai Vyas Son of Late… — Pension and Retirement Benefits | Gujarat HC (2007)

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LPA/181/2007

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1/9

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JUDGMENT

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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LETTERS PATENT APPEAL No. 181 of 2007 In

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SPECIAL CIVIL APPLICATION No. 8220 of 2006
With
CIVIL APPLICATION No. 2609 of 2007
In LETTERS PATENT APPEAL No. 181 of 2007

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For Approval and Signature:

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HONOURABLE MR.JUSTICE ANIL R. DAVE
HONOURABLE MS.JUSTICE H.N.DEVANI

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=========================================================

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1^{Whether Reporters of Local Papers may be allowed} to see the judgment ?

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2 To be referred to the Reporter or not ?

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3^{Whether their Lordships wish to see the fair copy} of the judgment ?

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Whether this case involves a substantial question

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of law as to the interpretation of the

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4 constitution of India, 1950 or any order made thereunder ?

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5^{Whether it is to be circulated to the civil judge} ?

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=========================================================

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DEVENDRA UPENDRABHAI VYAS SON OF LATE UPENDRA M VYAS - Appellant(s)

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Versus

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THE SECRETARY TO GOVT. OF GUJARAT & 1 - Respondent(s)

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=========================================================

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Appearance :

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MR PH PATHAKfor Appellant(s) : 1,

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MR SHIVANG SHUKLA, ASST. GOVERNMENT PLEADER for Respondent(s) : 1,
None for Respondent(s) : 2,

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=========================================================

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CORAM : HONOURABLE MR.JUSTICE ANIL R. DAVE

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and

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LPA/181/2007

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2/9

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JUDGMENT

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HONOURABLE MS.JUSTICE H.N.DEVANI

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Date : 06/03/2007

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ORAL JUDGMENT

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(Per : HONOURABLE MR.JUSTICE ANIL R. DAVE)

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1.Being aggrieved by the order rejecting Special
Civil Application No. 8220 of 2006, this Letters
Patent Appeal has been filed by the original
petitioner.

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2.The facts giving rise to the present litigation,
in a nutshell, are as under:

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2.1.The appellant is son of late Shri Upendra Vyas,
who died in harness while in government service on

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7.4.1995 and, therefore, an application for
appointment on compassionate ground on his behalf was
made by his mother, Smt. Jyotibala Vyas. It is
pertinent to note that widow of late Shri Upendra
Vyas was literate (Std. IV pass) and she could have
been given appointment on compassionate ground to a
class IV post, but she preferred to wait and opted
for a job for her minor son when he became major.
The application submitted by the widowed mother had
been rejected on 10th August, 2001. Thereafter,
another application was made on 15th September, 2001,
which had been rejected on 6th November, 2003.
Thereafter, another application was made on 5th
January, 2004, which was also rejected on 14th July,

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JUDGMENT

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LPA/181/20073/9

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2004. Ultimately, the aforesaid petition was filed
in 2006.

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3.The learned advocate appearing for the appellant
has submitted that the learned Single Judge has not
given reasons for rejecting the petition, and he has
rejected the petition mainly on the ground that in
spite of time being granted, the learned advocate for
the petitioner had not placed on record a scheme
under which compassionate appointment was sought for
by the petitioner. The learned advocate has
submitted that the said fact stated in the order is
incorrect because the learned advocate was not given
sufficient time to furnish the scheme.

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4.We have seen the record of Special Civil
Application No. 8220 of 2006, and upon perusal
thereof, we find that the said petition was filed on
10th March, 2006 and was circulated for admission on
19th April, 2006. Possibly, on that day, time was
asked for and, therefore, hearing was adjourned to
20th April, 2006. On 20th April, 2006, the learned
advocate filed sick-note and therefore hearing had
been adjourned to 24th April, 2006. On 24th April,
2006, the learned Single Judge rejected the petition
on the ground that the scheme under which the
appellant petitioner was seeking compassionate
appointment was not placed on record.

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5.In our opinion, when a petition is filed
claiming any right, the basis on which the right is

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LPA/181/20074/9JUDGMENT

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claimed for must be made available to the court. If
the scheme under which the appellant petitioner was
praying for compassionate appointment was not before
the learned Single Judge, in our opinion, no fault
can be found with the learned Single Judge for
rejecting the petition.

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6.In spite of the above fact, we wanted to give a
second chance to the appellant petitioner and,
therefore, we had asked the learned advocate to place
on record the policy under which the appellant
petitioner was praying for compassionate appointment.

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7.It is pertinent to note that this appeal was
notified for hearing for the first time on 26th
February, 2007. As the learned advocate sought for
time, the matter was adjourned to 27th February, 2007.
Even on 27th February, 2007 time was asked for and
hearing of the appeal was adjourned to 2nd March,
2007. Even on that day, the learned advocate was not
having the scheme under which compassionate
appointment was prayed for and, therefore, time was
sought for by learned advocate Shri Parmar appearing
for learned advocate Shri Pathak to place on record
the scheme under which the appellant petitioner was
praying for compassionate appointment. Time was
granted up to 6th March, 2007, that is, today. Today,
the learned advocate has placed on record a letter
dated 16th December, 1991 incorporating the scheme
under which compassionate appointment can be given to
the dependent of a deceased government employee, who

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LPA/181/2007

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5/9

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JUDGMENT

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had died in harness.

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8.First of all, learned advocate Shri Pathak has
made an effort to submit that the appeal should be
allowed and the matter should be remanded to the
learned Single Judge so that the matter can be argued
before the learned Single Judge at length.

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9.Instead of wasting time by remanding the matter,
we called upon the learned advocate to argue the
matter, but the learned advocate preferred to submit
that the order passed by the learned Single Judge is
bad in law and, therefore, it must be quashed and set
aside. So as to substantiate his case, he has placed
on record an order passed in L.P.A. No. 684 of 2002
in Special Civil Application No.3469/02 dated 20th
January, 2003 observing that while rejecting the
petition, the learned Single Judge is expected to
give reasons and the order, which might be passed by
the learned Single Judge, should not be a cryptic
order and should contain detailed reasons. The
Division Bench of this court had therefore allowed
the appeal and had remanded the matter for fresh
consideration by the learned Single Judge.
Similarly, the learned advocate has relied upon the
judgment delivered by the Hon'ble Supreme Court in
the case of State of Orissa v. Dhaniram Luhar, (2004)
5 SCC 568 so as to substantiate his case.

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10.Learned advocate Shri Pathak has submitted that
the mother of the appellant petitioner was informed

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LPA/181/20076/9JUDGMENT

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by letters dated 4th December, 1996 and 21st March,
1997 by the Dy. Conservator of Forests, Bhavnagar,
that she should apply for compassionate appointment
only after the present appellant attains majority
and, therefore, the mother of the appellant
petitioner was justified in waiting for such a long
period. For the said reason, it has been submitted
by him that there was no delay and the appellant-
petitioner should be given appointment to a class III
or IV post on compassionate ground.

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11.We have heard the learned advocates and have
also gone through the judgments cited before us. Upon
perusal of the judgments, it appears that reasons
must be given while rejecting the petitions by the
Single Judge. In our opinion, the abovestated
judgments would not help the appellant-petitioner for
the reason that it was not possible for the learned
Single Judge to assign any reason for rejecting the
petition as the petitioner had not placed on record
the basis on which compassionate appointment was
prayed for. In absence of the relevant material, the
learned Single Judge could not decide the matter on
merits and, therefore, he was constrained to reject
the petition.

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12.In the instant case, as the learned Single Judge
could not hear the matter on merits and as he has not
given reasons, we have heard the learned advocate at
length on merits.

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JUDGMENT

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LPA/181/20077/9

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13. It might be true that an intimation might have
been given to the mother of the appellant to apply
later as the appellant petitioner was minor at the
relevant time. In our opinion, even the mother of the
appellant could have given an application for getting
a job on compassionate ground as she was literate
(Standard IV pass) and on the basis of the said
educational qualification she could have been given a
job by the authorities.

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14.So far as other facts of the case are concerned,
after hearing the learned advocate we have noted that
three different applications made by family members
of the late government employee Shri Upendra Vyas had
been rejected. The first application had been
rejected on 10th August, 2001, the second one was
rejected on 6thNovember, 2003 and the third
application was rejected on 14th July, 2004. In our
opinion, if the appellant petitioner was aggrieved by
rejection of the first application, a petition ought
to have been filed immediately thereafter, but

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instead of approaching this court, two other
applications were made before the authority and
ultimately the petition had been filed on 10th March,
2006 as stated hereinabove.

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15.In our opinion, substantial delay has been
caused in filing the petition. It appears that the
family has survived for more than 11 years. The
Hon'ble Supreme Court has observed in the case of
State of J&K v. Sajad Ahmed Mir, (2006) 5 SCC 766

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LPA/181/20078/9

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JUDGMENT

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that if the main person in the family has expired and
the family survives for several years, it may not be
necessary to give appointment on compassionate ground
to any of the members of the family. In our opinion,
the ratio of the said judgment squarely applies to
the present case. In the instant case, Shri Upendra
Vyas had expired on 7th April, 1995 and the petition
praying for appointment on compassionate ground had
been filed in 2006. For 11 years the family has
survived and, therefore, we feel that, in the instant
case, the family was not that much destitute which
required prompt help.

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16.It is also pertinent to note that mother of the
appellant petitioner is literate (Std. IV pass).
She could have given an application for appointment
on compassionate ground to a class IV post, but for
the reasons best known to her and perhaps, as stated
by her in one of the applications, as she had to look
after the children, she did not opt to apply for a
job on compassionate ground, but she waited for years
so that one of her minor sons, when becomes major,
get appointment on compassionate ground.

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17.Learned AGP Shri Shivang Shukla has submitted
that the appellant petitioner had a literate sister,
who was 18 years old at the time when the appellant
had lost his father and,therefore, the job could have
been applied for by the literate sister. We ignore
the said submission as the said fact was not put on
record earlier but the fact remains that the mother

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LPA/181/20079/9JUDGMENT

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of the appellant, namely, widow of the deceased
employee, could have applied for the job, and in that
event, she could have been given job, but she did not
apply, possibly because she was in a position to
maintain the family at that time.

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18.For the aforesaid reasons, even after
considering the matter afresh and after hearing
learned advocate Shri Pathak at length, we feel that
even in normal circumstances the petition would have
been rejected. In the circumstances, instead of
remanding the matter to the learned Single Judge, we
have heard the learned advocate for the appellant
petition at length and for the reasons stated
hereinabove, we dismiss the appeal.

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19.In view of dismissal of the appeal, the civil
application does not survive and it is disposed of
accordingly.

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(hn)

Devendra Upendrabhai Vyas Son of Late Upendra M Vyas v. the Secretary to Govt. of Gujarat

Case brief

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Devendra Upendrabhai Vyas Son of Late Upendra M Vyas v. the Secretary to Govt. of Gujarat

Case brief

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What did the court decide?

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