Gujarat High Court
Nanjibhai Karsanbhai Parmar vs State Of Gujarat & 2 on 26 September, 2017
Author: A.S. Supehia
Bench: A.S. Supehia
C/SCA/11948/2009 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO.11948 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE A.S. SUPEHIA Sd/
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1 Whether Reporters of Local Papers may be allowed to see the judgment ? NO 2 To be referred to the Reporter or not ?
YES 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any NO order made thereunder ?
=================================================== NANJIBHAI KARSANBHAI PARMAR....Petitioner(s) Versus STATE OF GUJARAT & 2....Respondent(s) =================================================== Appearance:
MR R D CHAUHAN, ADVOCATE for Petitioner(s) No. 1 MR SAMIR B GOHIL, ADVOCATE for Petitioner(s) No. 1 MS MANJULA R CHAUHAN, ADVOCATE for Petitioner No. 1 MR HS SONI, AGP for the Respondent(s) No. 1 RULE SERVED BY DS for the Respondent(s) No. 1 3 =================================================== CORAM: HONOURABLE MR.JUSTICE A.S. SUPEHIA Date : 26/09/2017 CAV JUDGMENT (1) By way of present petition, the petitioner has prayed for quashing and setting aside the impugned decision dated 26.09.2007 passed by respondent No.3, rejecting the claim of the petitioner for compassionate appointment in place of his deceased father.Page 1 of 13
HC-NIC Page 1 of 13 Created On Mon Oct 02 06:06:38 IST 2017 C/SCA/11948/2009 CAV JUDGMENT (2) The brief facts of the case culled out from the record of the petition are that : the father of the petitioner died on 04.07.1991 while he was in service with the respondents. At that relevant point of time the petitioner was minor and after attaining the majority, he moved an application dated 21.06.2000, along with the requisite documents to respondent No.3 for getting appointment on compassionate ground under the relevant Government Circulars dated 10.03.2000 and 07.09.2002 issued by respondent No.1. It is the case of the petitioner that since he is possessing the requisite educational qualification i.e. 12th Std., he is eligible for getting appointment as ClassIV employee, pursuant to the aforesaid Government Resolutions. It is also the case of the petitioner that he has cleared the computer examination from Dr.Baba Saheb Ambedkar Open University on 30.11.2005, as prescribed by the respondent authorities. It is the case of the petitioner that family of the petitioner consists of three sisters and aged mother and the petitioner belongs to Scheduled Caste and Physically handicapped person, a copy of the certificate issued by Civil Surgeon, Civil Hospital, Mehsana dated Page 2 of 13 HC-NIC Page 2 of 13 Created On Mon Oct 02 06:06:38 IST 2017 C/SCA/11948/2009 CAV JUDGMENT 28.09.2004 is also produced on record to substantiate his case.
(3) On receipt of the relevant documents and information from respondent No.3 on 05.08.2000, a decision was taken by the concerned authority that since the family income of the petitioner exceeds the prescribed limit, the petitioner is not entitled for getting appointment on compassionate ground in place of his deceased father.
(4) Against the said decision, the petitioner moved a representation dated 06.02.2003 to the concerned authority. Failing to get a favourable response to his application, the petitioner filed Special Civil Application No.9636 of 2004 seeking appropriate directions to the concerned authorities. The said writ petition was allowed by order dated 20.07.2007 with a direction to the respondent authority to reconsider the case of the petitioner for compassionate appointment according to the Government Policy i.e. Government Resolutions dated 10.03.2000 and 07.09.2002 and with 3% Reservation for handicapped persons as provision made in The Persons with Page 3 of 13 HC-NIC Page 3 of 13 Created On Mon Oct 02 06:06:38 IST 2017 C/SCA/11948/2009 CAV JUDGMENT Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act 1995 (1 of 1996) and then to pass appropriate orders in accordance with law, within a period of three months from the date of receiving the copy of this order. The said order was passed considering the judgement reported in 2007 LabIC NOC 28 and 2007 112 FLR 772 Ker. (Full Bench.).
(5) After serving the aforesaid order of this Court upon the concerned authority, the petitioner was waiting for suitable orders as per the directions of this Court, however, respondent No.3 passed the impugned order dated 26.09.2007 declining the case of the petitioner for appointment on the compassionate ground. Said action has been challenged by the petitioner by way of filing the present petition.
(6) Learned advocate for the petitioner has submitted that the impugned decision is contrary to the guidelines issued by this Court in the judgement dated 05.03.2003 rendered in the case of Jayesh J. Puwar Vs. General Manager, (in Special Civil Application No.5751 of 2002 and allied matter) wherein the proposal for Page 4 of 13 HC-NIC Page 4 of 13 Created On Mon Oct 02 06:06:38 IST 2017 C/SCA/11948/2009 CAV JUDGMENT compassionate appointment was denied on the ground of pension being paid and the retiral benefits paid to the concerned Government employee and, therefore, considering the ratio of the said judgement the terminal benefit cannot be included at the time of deciding the appointment of such destitute and needy person, as the same is statutory obligation on the part of the employer. He has further submitted that the impugned decision suffers from total nonapplication of mind, whereby the calculation has been arbitrarily and illegally considered de hors the mandate of catena of the decisions rendered by the Supreme Court as well as this Court. He has further submitted that by the impugned decision the concept of extending help to the dependent of a deceased employee has been frustrated by virtue of rejection of the claim of the petitioner. He has also submitted that by the impugned decision the respondent authority negatived the claim of the petitioner, who is in dire need of such appointment for the purpose of not only his survival but his family members survival. He has also submitted that in an identical circumstances this Court had occasioned to deal with similar such petition i.e. Special Page 5 of 13 HC-NIC Page 5 of 13 Created On Mon Oct 02 06:06:38 IST 2017 C/SCA/11948/2009 CAV JUDGMENT Civil Application No.6283 of 2009 wherein vide order dated 09.11.2009 suitable directions were issued. He has further submitted that the principle and ideology for extending help to the dependent of a deceased employee, who died during service and if such pious concept and maxim is not being followed either by the statutory bodies like the State Government then the purpose would be frustrated whereby the appointment on compassionate ground would become only the concept merely rests on paper, which should not be allowed to be permitted and, therefore, in an identical set of circumstances in the case of Yogendrasinh B. Chauhan Vs. State of Gujarat this Court followed the catena of decisions in judgment and order dated 29.04.2009 rendered in Special Civil Application No.2957 of 2007 and, therefore, the aforesaid decision requires to be bear in mind by such Government authorities.
(7) Per contra, Mr.Soni, learned Assistant Government Pleader appearing on behalf of the respondents has relied upon the affidavitinreply filed by the respondent authorities dated 05.04.2010. He has stated that the impugned order is based on the Page 6 of 13 HC-NIC Page 6 of 13 Created On Mon Oct 02 06:06:38 IST 2017 C/SCA/11948/2009 CAV JUDGMENT guidelines issued by the General Administration Department (GAD) and after careful consideration of the Government Resolutions and Circular, more particularly Government Resolutions dated 10.03.2000 and 29.03.2007 issued by the GAD the decision has been taken. He has submitted that in spite of death of the bread earner (i.e. father of petitioner) on 04.07.1991, the family survived and substantial period is over, on that ground also, there is no necessity to accept the application of the petitioner to give him compassionate appointment and the petition is required to be dismissed. Learned Assistant Government Pleader has also pressed into service the relevant policy, as per which on the date of application there was income criteria of Rs.2,000/month and the petitioner's family income was exceeding Rs.2,000/month i.e. Rs.2,171/month and, therefore, the case of the petitioner can be considered on the date of the relevant policy i.e. Government Resolution dated 26.02.1997, which was in force at the time of the date of the application made by the petitioner. Lastly, it is submitted that considering the aforesaid peculiar facts and circumstance of the case, the present petition does not Page 7 of 13 HC-NIC Page 7 of 13 Created On Mon Oct 02 06:06:38 IST 2017 C/SCA/11948/2009 CAV JUDGMENT deserve consideration and the same deserves to be dismissed.
(8) Learned advocate for the petitioner has relied upon the affidavitinrejoinder dated 10.01.2007 and has contended that Clause 2(A)(1) of Government Resolution dated 10.03.2000 provides that no income is to be considered for compassionate. Relying upon the judgement dated 13.10.2016 passed by this Court in Special Civil Application No.9312 of 2010, the learned advocate for the petitioner has submitted that after considering various judgements of the Apex Court as well as this Court, the concerned respondent authorities were directed by this Court to consider the case of the petitioner therein in terms of Government Resolution 10.03.2000, more particularly Clause 2(i) of the Appendix (I) of the said Government Resolution. Learned advocate for the petitioner further submitted that the right of the petitioner seeking compassionate appointment flows from the scheme formulated under Article 309 of the Constitution of India and Government Resolution 10.03.2000 was formulated under the said article. He has also submitted that one Shri Ashvinkumar Page 8 of 13 HC-NIC Page 8 of 13 Created On Mon Oct 02 06:06:38 IST 2017 C/SCA/11948/2009 CAV JUDGMENT Nathubhai Patel had sought information under the Right to Information Act, 2005, about the persons who were appointed on compassionate ground after Government Circular dated 29.03.2007 and as per the information supplied by respondent No.1, eleven such persons were given compassionate appointments subsequent to the aforesaid Government Circular dated 29.03.2007. However, it is made clear in the said information that no income limit has been fixed for Panchayat Department and, therefore, the petitioner states that he cannot be denied compassionate appointment on the ground of family income. By making the above submissions, learned advocate for the petitioner requested to allow the present petition. No further submissions have been made by either side.
(9) Heard learned advocates appearing on behalf of the respective parties and perused the record of the case.
(10) The undisputed fact of present case is that father of the petitioner died while in service on 04.07.1991, the family of the petitioner was having monthly income of Rs.2553/ and the pension amount of Page 9 of 13 HC-NIC Page 9 of 13 Created On Mon Oct 02 06:06:38 IST 2017 C/SCA/11948/2009 CAV JUDGMENT Rs.1,970/ per month. The petitioner and his family have survived for more than 16 years as on 26.7.2007. As on today almost a period of 27 years have passed. The compassionate appointment is provided to meet with the immediate exigency to the family of the deceased. It cannot be said to be source of recruitment. The Apex Court in a series of judgements has reiterated the proposition of law that compassionate appointment is not a mode of recruitment. The entire object of compassionate appointment is to enable the pedigree of the deceased employee to tide over sudden financial crisis. The Supreme Court has also in a various judgements reiterated that compassionate appointment cannot be granted after lapse of reasonable period.
(11) The Supreme Court in the case of State Bank of India & Ors. Vs. Surya Narain Tripathi, reported in (2014) 15 SCC 739, has held that if an employer points out that financial arrangement made for the family subsequent to the death of the employee is adequate, the members of the family cannot insist that once of them ought to be provided a comparable appointment. The said proposition of law is considered by the Supreme Court in Page 10 of 13 HC-NIC Page 10 of 13 Created On Mon Oct 02 06:06:38 IST 2017 C/SCA/11948/2009 CAV JUDGMENT a reported decisions in the case of Haryana State Electricity Board Vs. Naresh Tanwar & Anr., reported in 1196 Vol.8 23, in the case of Umesh Kumar Nagpal Vs. State of Haryana & Ors., reported in (1994) 4 SCC 138.
(12) The Division Bench of this Court in a judgment dated 05.07.2011 passed in Letters Patent Appeal No.618 of 2010, while placing reliance on the judgment of the Supreme Court in the case of State Bank of India & Ors. Vs. Jaspal Kaur, reported in (2007) 9 SCC 571 has held that if the financial condition of the family of the appellant is good and he is having more than Rs.8,000/ per month towards the family pension in that case, such family cannot be said that such family is in need of compassionate appointment so as to meet with the immediate exigency of the family of the deceased. Reliance is also placed by the Division Bench on the judgment of the Supreme Court in the case of State Bank of India & Anr. Vs. Rajkumar, reported in (2010) 11 SCC 661, wherein the Supreme Court has observed that an appointment under the scheme can be made only if the scheme is in force and not after it is abolished/withdrawn. Recently, the Page 11 of 13 HC-NIC Page 11 of 13 Created On Mon Oct 02 06:06:38 IST 2017 C/SCA/11948/2009 CAV JUDGMENT scheme of compassionate appointment is replaced by the State Government with the scheme of providing lump sum amount to the family members of the deceasedemployees. It follows therefore that when a scheme is abolished, any pending application seeking appointment under the scheme will also cease to exist, unless saved. The mere fact that an application was made when the scheme was in force, will not by itself create a right in favour of the applicant.
(13) In a recent decision rendered by the Supreme Court in the case of Union of India vs Sima Banerjee reported in 2017(1) RSJ 351 has observed thus:
"We have heard learned counsel for the parties. It is pointed out by learned counsel for the appellant that the object of compassionate appointment is to enable the family to tide over the sudden crisis as laid down by this Court in Umesh Kumar Nagpal v. State of Haryana & Ors. 1994 (4) SCC 138 and in State of U.P.& Ors. v. Pankaj Kumar Vishnoi 2003 (11) SCC 178. Thus, direction to give compassionate appointment several years after death was not justified We are in agreement with the above submission."
(14) In view of the aforesaid law laid down by the Apex Court and this Court in the aforesaid judgments, the respondents cannot be directed after so many years to provide appointment to the petitioner on compassionate ground especially in view of Page 12 of 13 HC-NIC Page 12 of 13 Created On Mon Oct 02 06:06:38 IST 2017 C/SCA/11948/2009 CAV JUDGMENT financial condition of his family. The petition is dismissed. RULE is discharged. There shall be no order as to costs.
Sd/ [A. S. SUPEHIA, J] *** Bhavesh[pps]* Page 13 of 13 HC-NIC Page 13 of 13 Created On Mon Oct 02 06:06:38 IST 2017