Gujarat High Court
Virag Pramodrai Joshi vs Gidc & 2 on 3 February, 2015
Author: C.L.Soni
Bench: C.L. Soni
C/SCA/9531/2013 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 9531 of 2013
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VIRAG PRAMODRAI JOSHI
Versus
GIDC & 2
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Appearance:
MS MAMTA R VYAS, ADVOCATE for the Petitioner
MR KUNAL NAIK for M/S TRIVEDI & GUPTA, ADVOCATE for the
Respondent(s) Nos.1-2
MR ROHAN YAGNIK, ASSTT GOVT PLEADER for Respondent No.3
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CORAM: HONOURABLE MR.JUSTICE C.L. SONI
Date : 03/02/2015
ORAL ORDER
1. The petitioner has sought direction against the respondents to give him compassionate appointment on any suitable post.
2. As per the case of the petitioner, the petitioner made application dated 21.6.2010 for compassionate appointment on the ground that his father died in harness on 23.5.2010 and as per the policy of the Government, the petitioner became entitled for compassionate appointment. The petitioner has averred that though the concerned authority of respondent No.1 recommended for considering the case of the petitioner sympathetically, however, nothing was done till the petition was filed.
3. It appears that pending the petition, decision dated 30.9.2013 was taken, whereunder the petitioner is held entitled for lumpsum compensation of Rs.4 lacs under the new policy dated 5.7.2011 introduced by the Government. The petitioner, therefore, was Page 1 of 6 C/SCA/9531/2013 ORDER permitted to amend the petition so as to challenge the above-said decision/ order dated 30.9.2013. The petitioner also prayed to direct the respondents to consider the application of the petitioner for appointment instead of lumpsum compensation.
4. I have heard learned advocate Ms. Mamta Vyas for the petitioner, learned advocate Mr. Kunal Naik for M/s. Trivedi & Gupta for respondent Nos.1 and 2 and learned Assistant Government Pleader Mr. Rohan Yagnik for respondent No.3.
5. Learned advocate Ms. Vyas submitted that the petitioner made application prior to introduction of the policy dated 5.7.2011 and therefore, the petitioner shall not be governed by the said policy and the petitioner having become eligible to get compassionate appointment, his application was required to be dealt with under the policy existed prior to the policy dated 5.7.2011. Ms. Vyas submitted that there was no fault on the part of the petitioner that his application remained unattended though there was recommendation by the concerned authority of respondent Nos.1 and 2. She thus urged to quash and set aside the order for grant of compensation and to direct the respondents to consider the application of the petitioner for compassionate appointment as per the policy existed prior to 5.7.2011.
6. Learned advocate Mr. Naik and learned Assistant Government Pleader Mr. Yagnik on the other hand submitted that since the application of the petitioner was not decided, it was treated as pending application and as per the policy dated 5.7.2011, all applications for compassionate appointment pending on the date of introduction of the Government Resolution dated 5.,7.2011 are required to be dealt with under the new policy and as per the new policy, it is decided to give lumpsum compensation in lieu of Page 2 of 6 C/SCA/9531/2013 ORDER compassionate appointment.
7. Having heard learned advocates for the parties, what is not in dispute is that the application dated 21.6.2010 made by the petitioner for compassionate appointment remained undecided till the policy dated 5.7.2011 was introduced by the State Government. As per the policy dated 5.7.2011, Government has decided to grant lumpsum compensation in lieu of compassionate appointment and as per Clause (5) of the policy, all pending applications are to be decided and disposed of under the new policy of the Government.
8. In consonance with the new policy, order dated 30.9.2013 is passed, as per which the petitioner is entitled to compensation of Rs.4 lacs. In above such view of the matter, the respondents cannot be directed to consider the application of the petitioner for compassionate appointment.
9. Division Bench of this Court in Letters Patent Appeal No.1270 of 2010, vide judgment dated 9.10.2014, has held and observed in para 7 to 12 as under:-
"7. We find that even if the learned Single Judge was of the view that the application of the petitioner was required to be considered as per the policy prevailing at the time when such application was made, and on the basis of the judgment in Satyendrakumar Parbatsinh Zala (supra), then also, at the best, the learned Single Judge could have directed the concerned authorities to consider the application of the petitioner in light of the policy prevailing for compassionate appointment. However, the learned Single Judge has finally accepted the application of respondent No.1 and directed the concerned authorities to appoint the petitioner as peon on compassionate ground with benefit of notional increment. We find that such direction was not called for in exercise of the powers under Article 226 of the Constitution of India. It was required to be left to the concerned authority to reconsider the application of the respondent for compassionate appointment in accordance with the policy prevailing and the rules for the post in question.
8. In the policy at Annexure B dated 4.9.1988 under which the Page 3 of 6 C/SCA/9531/2013 ORDER petitioner had made application for compassionate appointment, it is stated in clause 10 that whatever changes are made in the policy for the Government employees, the same shall automatically apply for the policy at annexure-B.
9. The Government has now introduced the policy dated 5.7.2011 providing for ex-gratia payment of compensation in lieu of compassionate appointment. In view of such change in policy for compassionate appointment, dependent of Government employee is now not entitled to compassionate appointment.
10. In the case of MGB Gramin Bank Vs. Chakrawarti Singh reported in AIR 2013 (SC) 3365, Hon'ble Supreme Court has held and observed in para 8 to 15 as under:
"8. The Courts and the Tribunals cannot confer benediction impelled by sympathetic considerations to make appointments on compassionate grounds when the regulation framed in respect thereof did not cover and contemplate such appointments.
9. In A. Umarani v Registrar, Co-operative Societies & Ors., AIR 2004 SC 4504, while dealing with the issue, this Court held that even the Supreme Court should not exercise the extraordinary jurisdiction under Article 142 issuing a direction to give compassionate appointment in contravention of the provisions of the Scheme/Rules etc., as the provisions have to be complied with mandatorily and any appointment given or ordered to be given in violation of the scheme would be illegal.
10. The word 'vested' is defined in Black's Law Dictionary (6th Edition) at page 1563, as 'vested', Fixed; accrued; settled; absolute; complete. Having the character or given in the rights of absolute ownership; not contingent; not subject to be defeated by a condition precedent. Rights are 'vested' when right to enjoyment, present or prospective, has become property of some particular person or persons as present interest; mere expectancy of future benefits, or contingent interest in property founded on anticipated continuance of existing laws, does not constitute vested rights
11. In Webster's Comprehensive Dictionary (International Edition) at page 1397, 'vested' is defined as Law held by a tenure subject to no contingency; complete; established by law as a permanent right; vested interest. (Vide: Mosammat Bibi Sayeda v. State of Bihar AIR 1996 SC 1936: (1996 AIR SCW 2283); and J.S. Yadav v. State of Uttar Pradesh (2011) 6 SCC
570): (AIR 2011 SC (Suppl)659: 2011 AIR SCW 3078).
Thus, vested right is a right independent of any contingency and it cannot be taken away without consent of the person concerned. Vested right can arise from contract, statute or by operation of law. Unless an accrued or vested right has been Page 4 of 6 C/SCA/9531/2013 ORDER derived by a party, the policy decision/ scheme could be changed. (Vide: Kuldip Singh v Government, NCT Delhi AIR 2006 SC 2652): (2006 SIR SCW 3627).
12. A scheme containing an in pari materia clause, as is involved in this case was considered by this Court in State Bank of India & Anr. v. Raj Kumar (2010)11 SCC 661. Clause 14 of the said Scheme is verbatim to clause 14 of the scheme involved herein, which reads as under:
"14. Date of effect of the scheme and disposal of pending applications:
The Scheme will come into force with effect from the date it is approved by the Board of Directors. Applications pending under the Compassionate Appointment Scheme as on the date on which this new Scheme is approved by the Board will be dealt with in accordance with Scheme for payment of ex- gratia lump sum amount provided they fulfill all the terms and conditions of this scheme."
13. The Court considered various aspects of service jurisprudence and came to the conclusion that as the appointment on compassionate ground may not be claimed as a matter of right nor an applicant becomes entitled automatically for appointment, rather it depends on various other circumstances i.e. eligibility and financial conditions of the family, etc., the application has to be considered in accordance with the scheme. In case the Scheme does not create any legal right, a candidate cannot claim that his case is to be considered as per the Scheme existing on the date the cause of action had arisen i.e. death of the incumbent on the post. In State Bank of India & Anr. (supra), this Court held that in such a situation, the case under the new Scheme has to be considered.
14. In view of the above position, the reasoning given by the learned Single Judge as well as by the Division Bench is not sustainable in the eyes of law. The appeal is allowed and the impugned judgments of the High Court are set aside.
15. The respondent may apply for consideration of his case under the new Scheme and the appellant shall consider his case strictly in accordance with clause 14 of the said new Scheme within a period of three months from the date of receiving of application.
With these observations, appeal stands disposed of"
11. In above such view of the matter, and when more than 20 years have passed after the application of the petitioner for compassionate appointment was rejected, the direction issued by learned Single Judge cannot be allowed to be operated.
12. The impugned judgment is set aside. The application of the respondent No.1 shall be reconsidered for benefits under the Page 5 of 6 C/SCA/9531/2013 ORDER existing policy and the appellants shall take decision in accordance with law at the earliest, not later than 3 months from the date of receipt of order of this Court. Appeal disposed of accordingly."
10. In light of the above and in view of the new policy dated 5.7.2011, the petitioner is not entitled to claim compassionate appointment. The petition is therefore, dismissed. However, since the decision is taken to give compensation of Rs.4 lacs to the petitioner, the concerned authority shall release the same in favour of the petitioner within a period of FOUR WEEKS from today.
Sd/-
(C.L.SONI, J.) Omkar Page 6 of 6