SA/63/2007 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SECOND APPEAL No. 63 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE KS JHAVERI : ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= STATE OF GUJARAT - Appellant(s) Versus DIPAKKUMAR JAYSUKHLAL BHATT & 1 - Defendant(s) ========================================================= Appearance : MR D.R. CHAUHAN AGP for Appellant(s) : 1, MR ANSHIN H DESAI for Defendant(s) : 1, MS KHYATI P HATHI for Defendant(s) : 2, MR PV HATHI for Defendant(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 15/07/2008 ORAL JUDGMENT 1.0 This appeal is directed against the judgment and order dated 28.01.2005 passed by the learned 3rd Extra SA/63/2007 2/6 JUDGMENT Assistant Judge, Junagadh in Regular Civil Appeal No. 66 of 2003 whereby, the said appeal was dismissed with costs. 2.0 The facts in brief are as under; 2.1 Respondent no. 1, original plaintiff, had filed a suit being Regular Civil Suit No. 244 of 1992 before the Court of learned 3rd Joint Civil Judge (S.D.), Junagadh praying to direct the appellant – State to grant him compassionate appointment in the establishment of respondent no. 2 stating that his father was serving as a Sanitary Inspector with respondent no. 2 and that his father had expired on 04.03.1982 during the course of employment. 2.2 The trial Court, after hearing the parties and after considering the evidence on record, decreed the suit in favour of respondent no. 1. 2.3 Being aggrieved by the aforesaid order, the appellant preferred an appeal being Regular Civil Appeal No. SA/63/2007 3/6 JUDGMENT 66 of 2003 before the District Court, Junagadh. The appellate Court, by impugned judgment and order, dismissed the appeal preferred by the appellant. Hence, this second appeal. 3.0 Heard learned counsel for the respective parties and perused the documents on record. It is not in dispute that the deceased – employee expired during the course of employment and that after his death, initially, the mother of respondent no. 1 applied to the authority for compassionate appointment and thereafter, respondent no. 1 followed suit. The application of the mother of respondent no. 1 was rejected by the appellant – State. However, in the meantime, as the mother of respondent no. 1 was not keeping good health and the respondent no. 1 had become major, she made an application dated 10.05.1988 to the concerned authority requesting to grant compassionate appointment to her son, i.e. respondent no. 1, in her place. Thereafter, vide application dated 10.04.1989, respondent no. 1 requested the concerned authority to grant him appointment on compassionate basis. Ultimately, vide order SA/63/2007 4/6 JUDGMENT dated 07.02.1991, the concerned authority informed respondent no. 1 that since his application for compassionate appointment was not preferred within the stipulated time-limit, the same has been rejected. 4.0 Considering the facts of the case, it would be relevant to refer to a decision rendered by the Apex Court in the case of Syed Khadim Hussain v. State of Bihar & Ors. reported in (2006) 9 S.C.C. 195. In that case, the deceased employee was working as a Peon in the P.W.D. and died in 1991 during the course of employment leaving behind the widow and five minor children. The widow of the deceased applied for compassionate appointment within time in 1993. However, the said application was rejected as the same was not preferred in the prescribed format. Thereafter, in 1995, the son of the deceased applied for compassionate appointment. No decision was passed on the said application until 2000 and in 2001 the said application came to be rejected on the ground that since the son of the deceased was a minor at the time of filing the application, he could not be granted compassionate appointment. The Apex SA/63/2007 5/6 JUDGMENT Court held that the order rejecting the application of the son of the deceased for compassionate appointment was not justified, as at the time of rejection, the son had attained above 18 years of age. 5.0 It is a matter of record that respondent no. 1 became a major on 27.12.1986 and that the period of five years for appointment on compassionate ground expired on 04.03.1987. The order rejecting the application of respondent no. 1 for compassionate appointment was passed on 07.02.1991. Thus, when the said order was passed in 1991, respondent no. 1 was a major. No explanation has been tendered by the appellant for the delay caused in passing the order dated 07.02.1991. The heirs of the deceased employee have been running from pillar to post since 1982. 6.0 In my opinion, the appellant – State cannot take advantage of its own wrong by stating that the application was not preferred within the stipulated period looking to the gross and inordinate delay in passing the order. Keeping in SA/63/2007 6/6 JUDGMENT mind the decision rendered in Syed Khadim Hussain's case (supra), I am of the view that respondent no. 1 deserves to be granted compassionate appointment on a Class IV Post, as has been directed by the trial Court. 7.0 For the foregoing reasons, the Appeal is dismissed. It is made clear that this Court has passed the aforesaid order on the peculiar facts and circumstances of the case and therefore, it may not be treated as precedent in other cases. No order as to costs. [K. S. JHAVERI, J.] Pravin/*