Gujarat High Court
State Of Gujarat vs Jagdishbhai Mohanbhai Rana on 21 March, 2018
Author: Biren Vaishnav
Bench: Anant S. Dave, Biren Vaishnav
C/LPA/1312/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1312 of 2017
In SPECIAL CIVIL APPLICATION NO. 5818 of 2008
With
CIVIL APPLICATION NO. 2 of 2017
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STATE OF GUJARAT
Versus
JAGDISHBHAI MOHANBHAI RANA
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Appearance:
MR ROHAN YAGNIK, ASST GOVERNMENT PLEADER(1) for the
PETITIONER(s) No. 1,2,3
MR DN CHHTRAPATI, ADVOCATE FOR MR NILESH A PANDYA(549) for
the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE BIREN VAISHNAV
Date : 21/03/2018
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE BIREN VAISHNAV)
1. This Letters Patent Appeal is filed by the State of Gujarat challenging the oral judgement dated 13.01.2017 passed by the learned Single Judge in Special Civil Application No. 5818 of 2008. By the judgement under challenge, the learned Single Judge directed the appellant to appoint the respondent - original petitioner in the lowest cadre i.e. Class- IV within four months from the date of receipt of the writ of the judgement.
2. The brief facts of the case are as under:
Page 1 of 19 C/LPA/1312/2017 ORDER2.1 The petitioner's father Mr. M.C. Rana was working as a Composer with the Government Printing Press at Vadodara.
He died in harness on 09.01.1998. He left behind a widow who was 46 years of age at that time, daughters Jayshri and Rashmika then aged 19 and 13 respectively and son Jagdish Rana - original petitioner who was approximately 11 years of age then. The widow - mother of the petitioner applied for compassionate appointment on 25.06.1999. In her application so made, she stated that she had two daughters and a son who was minor.
2.2 Considering the social custom prevailing in the society and looking to the age of the widowed mother, who was illiterate,the petitioner on 28.12.1999 made an application for appointment on compassionate grounds though on the date of making such application he was aged 12 years, his date of birth being 25.03.1987. By a communication dated 01.06.2001, the petitioner was informed that since he was below 15 years of age, he was not eligible to seek appointment on compassionate grounds. By a communication dated 20.01.2003, the petitioner's mother was informed that her application for appointment on compassionate grounds was rejected on 5/2/2000 on account of the income ceiling but however as per the Government Resolution dated 7/9/2002,income limit has been done way with effect from 1.1.1996,the widow show resubmit her application within 7 days. Since the petitioner's mother had crossed 48 years of age and she was not in a position to work, it was the petitioner who applied on compassionate grounds pursuant to which he was asked to remain present on 17.03.2003. He was so informed by a communicated by 11.02.2003.
Page 2 of 19 C/LPA/1312/2017 ORDERSubsequently, on 21.02.2003 the respondents informed the petitioner that looking to his date of birth he was 15 years and 11 months old, and since the minimum age for being considered for a Class-IV appointment was 18 years in accordance with the Government Resolution dated 10.03.2000, the petitioner was not entitled to appointment on compassionate grounds. The communication further stated that in accordance with the earlier letter of 20.01.2003 it is the mother who should have applied for appointment on compassionate grounds. In the petition it has been pleaded by the petitioner that the mother was subsequently informed that since she had crossed 45 years of age and therefore she was held ineligible to apply for appointment on compassionate grounds.
2.3 On 09.05.2003, the petitioner addressed a letter to the authorities that since the mother's application for appointment on compassionate grounds was rejected on 17.04.2003 on her being ineligible and age barred, his claim for appointment on compassionate grounds be kept open on his attaining the age of 18 years. On having completed 18 years of age on 25.03.2005, the petitioner informed the respondents that he had completed 18 years of age hence a major and was 10th standard fail. He requested, therefore, that his case for appointment on compassionate grounds on Class-IV post be considered. No response was received from the respondents. It appears that having failed to get any benefit of a response and once having failed to secure appointment on being under aged and his mother's application being rejected on she being over aged, the petitioner approached this Court by filing Special Civil Page 3 of 19 C/LPA/1312/2017 ORDER Application No. 15917 of 2007. This Court by an order dated 25.06.2007 directed the respondents to consider the application made by the petitioner for compassionate appointment as per the policy prevailing at the relevant time and pass an appropriate reasoned order. Several reminders were issued by the petitioner and finally by a communication dated 17.01.2008 passed by the appellant - State, the respondent - original petitioner's request for appointment on compassionate grounds was rejected.
2.4 The rejection of the appointment on compassionate grounds was purportedly on several counts which essentially are as under:
(i) It was the stand of the State that the petitioner's mother Shardaben had applied on 25.06.1999 after the death of her husband on 09.01.1998. In accordance with the policy prevailing vide Government Resolutions dated 16.12.1991 and 14.08.1997, the minimum qualification required was standard IV pass and the maximum age was 45 years. The income ceiling was Rs.2500/-.
However, the petitioner's mother was illiterate, was 48 years of age and had a monthly income of Rs.3150/- and therefore did not fall within the eligibility criteria to deserve compassionate appointment.
(ii) The petitioner when applied for compassionate appointment on 02.05.2000 was 13 years old, less than the minimum of 18 required.
(iii) In accordance with Clause-V of the policy dated 26.02.1997 and looking to the date of death being 09.01.1998, it required that when the employee had died Page 4 of 19 C/LPA/1312/2017 ORDER after 01.12.1991 and the widow was illiterate, in such circumstances, there was an outer limit for making an application within two years from the date when the eldest child would attain majority. According to the communication, the deceased employee's eldest daughter Jayshriben was aged 19 when the father died and she did not apply for compassionate appointment.
(iv) In accordance with clause-VI of the Government Resolution dated 10.03.2000, for the death that occurred after 01.01.1996, the ceiling limit of income was done away with. The petitioner's mother had informed the department that since she was 48 years of age and was not keeping good health, her third child Jagdish the petitioner be given appointment. However, on the date of such application, the petitioner Jagdish was only 15 years of age. When the mother applied again on 04.03.2003, she was 52 years old and therefore had crossed the age limit of 45. At that point of time too, the first child namely daughter Jayshri did not apply for appointment on compassionate grounds.
(v) The petitioner Jagdish on attaining 18 years applied for appointment on compassionate grounds on 05.04.2005 in accordance with the directions issued by this Court in Special Civil Application No. 15917 of 2007 which directed the respondent to decide the application in accordance with the policy prevailing at the time of the petitioner's father's death on 09.01.1998 and the policy that was prevailing was of the year 1997. As per the policy, the eldest child ought to have applied within two years from the date of attaining majority. The daughter did not apply. However, the third child i.e. the petitioner Page 5 of 19 C/LPA/1312/2017 ORDER applied on 05.04.2005. In view of the fact that the application was made by the third child, it was the stand of the State that the application did not deserve consideration.
2.5 The order, therefore, stated that even on the removal of the income ceiling, the petitioner's mother had crossed the age limit and was illiterate. Moreover, the widow had received DCRG worth Rs.4 lakhs and the interest thereof would be Rs. 2500/-. Adding a sum of Rs.3000/- which was being received as pension, the family would receive approximately Rs.6000/- a month and therefore the family's position was not penurious and even the two daughters were elder to the petitioner and had not applied. The petitioner's application was therefore rejected.
2.6 This rejection was the subject matter of the petition by the petitioner before the learned Single Judge. The learned Single Judge by the impugned oral judgement rejected the contentions raised by the government in the impugned order and held that even after the petitioner conveyed his intention to apply in 1999 it was only after 18 months that on 21.02.2003, the petitioner's request was rejected on the ground that he was below 18 years of age. According to the learned Single Judge, that one stage her mother was asked to apply which application was rejected on her ground of being overage,at that point of time it was never the case of the department that the eldest child ought to have applied. It was not open for the respondents subsequently to insist that the first child Page 6 of 19 C/LPA/1312/2017 ORDER daughter Jayshri should have applied for appointment on compassionate grounds.
According to the learned Single Judge, the resolution dated 26.02.1997 clearly provided that a minor could apply for being considered for appointment on compassionate grounds within two years from the date of attaining majority. In the present case, the petitioner had applied in less than a month i.e. on 05.04.2005 on completing 18 years of age on 25.03.2005. The learned Single Judge further held that when the petitioner applied for appointment on compassionate grounds on 05.04.2005, the respondents did not act on that application and by the impugned order have rejected the application on several counts namely that the eldest child did not apply though she was major at the time of the widow being illiterate. Reliance by the respondents was placed on the policy of 26.02.1997 and the respondents rejected the application on the ground of their financial condition being stable, though by the Government Resolution of 07.09.2002 for being considered for appointment on compassionate grounds the income ceiling was done away with. Even in the affidavit in reply, the contention of the government that the petitioner was not eligible for being considered for appointment, as in accordance with the Government Resolution dated 16.03.2005 was rejected on the ground that he was not SSC, was also turned down by the learned Single Judge, as at the time of the prevailing policy, the education Page 7 of 19 C/LPA/1312/2017 ORDER qualification for Class-Iv appointment in accordance with the Government Resolution dated 10.03.2000 was standard 4 to 9 pass.
2.7 The learned Single Judge held that as per the social set up generally an elder child if a female may not have applied because then by all probability after her marriage she would go to her in-laws' home and therefore would not be helpful to the family of the deceased employee. The learned Single Judge observed that the government kept on changing its stand and therefore by conveying different reasons at different times for refusal to given compassionate appointment the State failed to act like a model employer. This oral judgement is under challenge by the government.
3. Mr. Rohan Yagnik, learned Assistant Government Pleader in his submissions has raised the following contentions:
(a) The sole purpose of offering compassionate appointment to the family members of the deceased is to see that it overcomes the sudden financial constraint.
(b) In the facts of the case, the family had received a payment of Rs. 4 lakhs on the death of the employee and was also continuing to receive Rs.6000/- a month and therefore compassionate appointment was appropriately not granted to the petitioner.
(c) The death had occurred on 09.01.1998. The eldest child ought,namely the daughter ought to have applied as she was a major on the death of her father and therefore eligible to apply. The respondent was not the eldest child. The employee had two daughters elder Page 8 of 19 C/LPA/1312/2017 ORDER than the petitioner and Jayshriben was admittedly major at the time of death of the father and therefore in accordance with the prevailing policy if the widow is illiterate, the eldest child needs to apply within six months. Since this application was not made by the daughter, and the petitioner applied in 2005, as per the prevailing policy of 1997, the petitioner was not entitled to appointment on compassionate grounds.
(d) Compassionate appointment after a passage of time loses significance. Mr. Yagnik invited the attention of this Court to a judgement of the Supreme Court in the case of Union of India vs. Sima Banerjee reported in 2017 (4) SCT 648 in support of his submission that no direction to give compassionate appointment can be given several years after the death.
4. Mr. D.N. Chhatrapati, learned advocate appeared for Mr. Nilesh Pandya, learned advocate for the respondent - original petitioner. He suggested that the government continued to change its stance. When the mother applied for appointment on compassionate grounds she was told that as per the prevailing policy since she was illiterate and had crossed the age of 45, she was not entitled to appointment on compassionate grounds. That when the petitioner applied in the year 2003, he was asked to wait. When he subsequently applied on attaining the age of majority, by the impugned order it was informed to him that as per the prevailing policy, the eldest child did not apply and therefore it was not open for the petitioner to apply for appointment on compassionate grounds, he being the third child. He further submitted that it was clear that in accordance with the policy prevailing at the Page 9 of 19 C/LPA/1312/2017 ORDER time of his father's death i.e. the policies dated 26.02.1997 and 30.08.1997, he was qualified as he was 10th standard fail which was the prevailing qualification. According to Mr. Chhatrapati, the policy of 16.03.2005 which required qualification of 10th standard pass for Class IV appointment was clearly not applicable as the same could not have been applied retrospectively.
5. It is in the light of these facts and submissions made by learned advocates appearing on behalf of the respective parties that the Court needs to appreciate whether the judgment of the learned Single Judge can be faulted for giving the directions that he has.
6. A short reference to the policy of compassionate appointment prevailing at the time of the death of the petitioner's father on 09.01.1998 needs to be referred to, a compilation of which has been handed over by Mr. Yagnik. The policy of 16.12.1991 stated that on the date of death of a government employee, any one of the dependents has to apply for appointment on compassionate grounds within two years. The policy further stipulated that in case a relaxation needs to be extended in the stipulated time limit then it can be done in a case where a widow is illiterate and the children are minor. In such a case, on a minor attaining majority, the application needs to be made within six months.
6.1 The communication dated 26.02.1997 which was the follow up to the policy of 16.12.1991 suggests that in accordance with the policy of 16.12.1991 there was a provision that in case of a widow who was illiterate and the Page 10 of 19 C/LPA/1312/2017 ORDER children are minor, the eldest child on reaching majority ought to apply within six months. Considering the representations made, it has been decided that in case of death of employees after 01.12.1991, the time limit for applying on attaining the age of majority has been extended to two years. The communication dated 30.08.1997 issued by the General Administrative Department suggests that for a Class-IV appointment, a candidate need not be an SSC pass.
6.2 The communication dated 31.12.1997 further amends and adds to the policy of 16.12.1991 to the effect that in case of a widow who is illiterate and has minor children or in case of a widow who only has a daughter and the widow is eligible for appointment, the maximum age limit of 45 years be relaxed to that of 48. Communication of 02.01.1998 suggests that in case a widow is unaware of the policy, is illiterate or due to social circumstances cannot apply within the stipulated time limit, the time limit of five years can be appropriately relaxed. Communication of 01.04.1998 suggests that keeping in mind the spirit of policy of appointment on compassionate grounds a decision should be taken on such applications expeditiously preferably within six months of the date of the application so made.
6.3 The aforesaid brief reproduction of the policy suggests that according to the impugned order, first the authorities rejected the mother's application on the ground that she was illiterate and had crossed the age of 45 namely she was 48 years of age. Second ground for rejection was that the employee's first child ought to apply within two years. However, the eldest daughter Jayshriben did not apply and Page 11 of 19 C/LPA/1312/2017 ORDER when the third child applied i.e. the petitioner he did so on 05.04.2005, though within the stipulated time frame it was not within the two year time limit on attaining the age of majority as prescribed in the resolution dated 06.12.1997.
7. In our opinion that learned Single Judge committed no error in coming to the conclusion that he did for the following reasons:
(a) When the mother applied for compassionate appointment on 25.06.1999, by a communication dated 20.01.2003 which makes a reference to a communication dated 05.02.2000 it was conveyed that the family had sufficient income. Then it further goes to suggest that in view of the income limit having been lifted she was eligible for appointment on compassionate grounds. She was therefore asked to apply,which she did.It appears that her application was rejected on the ground that she was an illiterate and had crossed the age of 48 years.At this point of time it was not the department's case that the eldest child i.e. the daughter who was major ought have applied.
(b) When she applied for appointment on compassionate grounds it was rejected on the ground that she had crossed the age of 45 years and therefore on 17.04.2003, she was told that she was not entitled to appointment on compassionate grounds. In the interregnum, when the son applied for appointment on compassionate grounds he was told to wait as he was a minor. That is evident from the communication dated 11.02.2003, when the son Page 12 of 19 C/LPA/1312/2017 ORDER was told to remain present on 17.03.2003. The respondent were aware of the status as far as the son was concerned, as in 2001 earlier they had rejected the application on the ground of he being a minor.
(c) On 05.04.2005, within less than a month of he attaining majority, when the Petitioner applied for appointment on compassionate grounds stating categorically that he was not 10th standard pass no response was given to his application for appointment on compassionate grounds. Only when a direction was given by an order dated 25.06.2007 by this Court, that by the impugned order he was told that though he did apply, the policy prevailing suggested that since his sister who was major at that time did not apply the two years' limitation would be held against him and though he attained majority and qualified for such appointment only in the year 2005, his claim was rejected. This the appellant did after three years of the application of the Petitioner.
8. Evidently this suggests a flip flop on the part of the government authority, in firstly rejecting the application of mother on the ground of being over aged we may not have any reason to suggest anything amiss. However at that stage it was not the case of the department that the eldest child, daugther Jayshri should have applied. When the son applied in the year 2003 he was asked to wait and then his application was rejected on the ground that as per the prevailing policy the eldest daughter had not applied and therefore since the time limit of two years Page 13 of 19 C/LPA/1312/2017 ORDER was over, his application needed no consideration. This also was done by a detailed order in 2008,three years after being nudged by the High Court to take a decision. The respondents have lost sight of the social fabric of the society where the female child,though eldest,and being eligible did not apply. When the family consists of a daughter and a son,the daughter of marriageable age would naturally resist and make way for the son in the family to stake his claim for appointment keeping in mind the sustained family support that he can give which would otherwise snap once the daughter is married. The policy of compassionate appointment lacks sensitivity to such issues of the societal standards,which the Learned Single Judge has appreciated,and,in our opinion,rightly so.
9. In the affidavit, an entirely new ground is raised i.e. that as per the policy of 16.03.2005 he ought to be SSC passed. Obviously, this stand is contrary to the law laid down by the Supreme Court in the case of Canara Bank and Another vs M. Mahesh Kumar reported in (2015) 7 SCC 412 which has been referred to by the learned Single Judge. The judgement in the case of Canara Bank (supra) would help the respondent on two counts namely that the application needs to be considered on the basis of the scheme in force at the time of death and secondly in rejecting the application on the basis of the petitioner having received terminal benefits was also contrary to this judgement. It will be worthwhile to reproduce paras 17 and 19 of the said judgement which read as under:
"17. Applying these principles to the case in hand, Page 14 of 19 C/LPA/1312/2017 ORDER as discussed earlier, respondent's father died on
10.10.1998 while he was serving as a clerk in the appellant-bank and the respondent applied timely for compassionate appointment as per the scheme 'Dying in Harness Scheme' dated 8.05.1993 which was in force at that time. The appellant-bank rejected the respondent's claim on 30.06.1999 recording that there are no indigent circumstances for providing employment to the respondent. Again on 7.11.2001, the appellant-bank sought for particulars in connection with the issue of respondent's employment. In the light of the principles laid down in the above decisions, the cause of action to be considered for compassionate appointment arose when the Circular No.154/1993 dated 8.05.1993 was in force. Thus, as per the judgment referred in Jaspal Kaur's case, the claim cannot be decided as per 2005 Scheme providing for ex-gratia payment. The Circular dated 14.2.2005 being an administrative or executive order cannot have retrospective effect so as to take away the right accrued to the respondent as per circular of 1993.
19. Insofar as the contention of the appellant- bank that since the respondent's family is getting family pension and also obtained the terminal benefits, in our view, is of no consequence in considering the application for compassionate appointment. Clause 3.2 of 1993 Scheme says that in case the dependant of deceased employee to be offered appointment is a minor, the bank may keep the offer of appointment open till the minor attains the age of majority. This would indicate that granting of terminal benefits is of no consequence because even if terminal benefit is given, if the applicant is a minor, the bank would keep the appointment open till the minor attains the majority."
9.1 Even the reliance placed on the judgement in the case of Sima Banerjee (supra), by the learned Assistant Government Pleader is of no help. When admittedly the Page 15 of 19 C/LPA/1312/2017 ORDER petitioner was a minor when the father died and applied immediately on attaining majority and then when the authorities itself took three years to decide the question of his eligibility, to oust the case on the principles of delay defeating justice of compassionate appointment itself is a self defeating submission.
10. In our opinion the learned Single Judge, therefore, was not wrong in observing that the State did not act like a model employer. The observations made by the learned Single Judge in paragraphs no. 5, 8 and 9 therefore need to be reproduced which read as under:
"5. The record shows that the application filed by the mother of the present petitioner being widow of the deceased government employee dated 25.06.1999 was not decided till 28.12.1999 i.e. for 6 months and, therefore, considering the situation on such date, petitioner and his mother have conveyed the respondent that instead of widow, compassionate appointment may be given to the present petitioner. Thereafter, for 18 months respondents were silent and it was conveyed to the petitioner only on 11.02.2003 to remain present for the purpose of compassionate appointment. But thereafter on 21.02.2003 his request was refused but now conveying that he has not attained the age of majority i.e he is below 18 years of age and, therefore he cannot apply. In that case, why on 01.06.2001 it was stated that since petitioner was less then 15 years, he cannot be an appointed. Government has to behave like model employer and they are supposed to play fair with their employees and their legal heirs, in as much as, they have to convey the correct position to them. The fact remains that respondents have conveyed the different reasons at different time for refusal of compassionate appointment to the petitioner. Surprisingly, in the impugned order they are again Page 16 of 19 C/LPA/1312/2017 ORDER conveying the petitioner that because of his financial condition, he is not entitled to compassionate appointment though such ground is only one of the grounds for refusal of compassionate appointment, it becomes clear that it is a hypothetical ground put forth by the respondent and, therefore, by all means it cannot be considered for refusal. It cannot be ignored that pursuant to Government Resolution dated 16.12.1991 even minor son of the deceased government employee is entitled to apply after attaining the age of majority but such condition has been liberalized by circular dated 97 wherein by widening the scope of compassionate appointment and that too based upon the representation of several members including members of legislative assembly and members of government and thereby with effect from 01.12.1991 time limit for applying compassionate appointment has been increased from two years to five years and for minor candidate the period of 6 months to two years after the date of attaining majority. Further, in addition to such extending time period, the basic change is to the effect that now the word first child is omitted from decisive line of the circular making it clear that any of the minor is entitled to compassionate appointment. It is because of the fact that as per our social set up, generally if elder child is female then by all probability after her marriage, she would go to her in-laws home and her income would not be helpful to the family of the deceased employee. Therefore, considering such social set up when government itself has changed its decision by omitting the word first child, then it cannot be submitted by the respondent that since petitioner is not the first child of the deceased employee, he is not entitled to the compassionate appointment.
8. As discussed herein above, though by order dated 26.2.1997, condition regarding first child has been removed and period of limitation has been increased to two years after attaining the age of majority, respondents have taken such ground for refusing the compassionate appointment. Similarly, though pursuant to G.R. dated 7.9.2002, Page 17 of 19 C/LPA/1312/2017 ORDER consideration of income is out of scope w.e.f. 1.1.1996, i.e. though application is pending since the year 1998, respondents have given the same ground that financial condition of the petitioner is sufficient for refusing compassionate appointment. As already discussed herein above, for such determination, respondents have unnecessarily considered the hypothetical calculations as if Rs.4 Lacs is paid to the petitioner as compensation in lieu of compassionate appointment, though no such amount has ever been ever or paid at all to the petitioner.
9. Thereby, though the facts are very much clear, the respondents have resisted the petition by filing an affidavit in reply dated 21.11.2008 simply reiterating the grounds mentioned in their impugned order, which are taken care of in above discussion. With such affidavit in reply, now, the petitioner has came forward with the G.R. of 2005, but they failed to realise that they have to pass impugned order as per the directions of the Honble Court in previous litigation, which specifically confirms that application is to be decided as per the policy prevailing at the relevant time and therefore, if G.R. of 2005, is making any changes in the requirement of compassionate appointment, then, it is not material at all. Therefore, only because refusal is in the year 2008, the policy of 2005 cannot be looked into, but policy of 1991 is to be considered with appropriate modification and amendment till date of application, but in any case modification in Scheme after the death or after the application, is not much material, which is settled legal position pursuant to decision in the case of Canara Bank & Anr vs M. Mahesh Kumar reported in (2015)7 SCC 412. It would be appropriate to recollect the decision in the case of Digvijaysinh Mahendrasinh Gohil Vs. State of Gujarat reported in LPA No.2615 of 2010 wherein Division Bench of this Court has directed the respondents to consider the case of the petitioner before it, who has applied after attaining the age of majority. This would negativate the submission by the respondents that now by Page 18 of 19 C/LPA/1312/2017 ORDER passage of time, it cannot be said that petitioner is in need of immediate service and therefore, he cannot be appointed as such."
11. For the aforesaid reasons, the Letters Patent Appeal filed by the State deserves to be dismissed. The impugned judgement and order dated 13.01.2017 is confirmed and the direction issued by the learned Single Judge that the respondent should be appointed in a Class-IV post deserves to be complied forthwith. Accordingly, appeal is dismissed.
In view of the dismissal of the main appeal, Civil Application shall not survive and is accordingly rejected.
(ANANT S. DAVE, J) (BIREN VAISHNAV, J) DIVYA Page 19 of 19