Gujarat High Court
Kailashben Mahavirsinh Vaghela vs State Of Gujarat & on 16 March, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/15880/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 15880 of 2015
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KAILASHBEN MAHAVIRSINH VAGHELA....Petitioner(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR ANVESH V VYAS, ADVOCATE for the Petitioner(s) No. 1
MR KM ANTANI, ASST. GOVERNMENT PLEADER for the Respondent(s) No.
1-2
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 16/03/2016
ORAL ORDER
1. By this writapplication under Article 226 of the Constitution of India, the petitioner, widow of an employee of the Police Department, has prayed for the following reliefs: 7(A) Be pleased to allow/admit this petition.
(B) Be pleased to quash and set aside the order dated 22/07/2015 passed by the respondent no.1 and further be pleased to direct the respondent no.1 granting the benefit of the scheme for providing the one time financial assistance to the legal heir of the deceased in the interest of justice.
(C) Be pleased to grant any such or further order/s as it may deem fit by this Hon'ble Court.
2. The facts of this case may be summarized as under: 2.1 The husband of the petitioner was serving in the Police Department as a DrivercumHead Constable. He died on 08.12.2010 Page 1 of 9 HC-NIC Page 1 of 9 Created On Thu Mar 17 02:50:21 IST 2016 C/SCA/15880/2015 ORDER while in service. It appears from the materials on record that the department vide communication in writing dated 06.01.2011 informed the petitioner that if she wanted compassionate appointment, then she may apply in the requisite proforma within period of 30 days.
2.2 For some reasons or the other, the petitioner failed to respond to the said proposal of the department.
2.3 After a period of almost four years, she applied for compassionate appointment. By that time, the State Government replaced its earlier Policy of compassionate appointment with providing of lumpsum amount by way of compensation.
2.4 The petitioner in the past had come before this Court by filing Special Civil Application No.10027 of 2015, which came to be disposed of by an order dated 24.06.2015 as under:
1. By this writapplication under Article 226 of the Constitution of India, the petitioner seeks compassionate appointment as her husband who was working as a DrivercumHead Constable with the Police Department passed away on 8th December 2010. On 8th December 2010, when the husband of the petitioner passed away, the policy for providing compassionate appointment was being governed by the Government Resolution dated 10th March 2000.
2. It appears that even according to that policy a widow has to apply for compassionate appointment within three months from the date of the death of her husband. However, in the present case, she applied for the first time on 15th October 2014. By the Government Resolution dated 5th July 2011, the State Government has done away with the earlier policy of granting appointment on compassionate ground to the dependents of the deceased employees with that of granting financial assistance to be given to the dependent of the deceased employee to be calculated on the basis of the length of service put in by such employee who died in harness. The earlier policy of giving appointment on compassionate ground has been abolished by the Government Resolution dated 5th July 2011.
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3. In any view of the matter, the respondents are directed to look into the matter and take an appropriate decision in accordance with law, whether the petitioner is entitled to claim the benefit of the Government Resolution dated 5th July 2011, within a period of fours weeks from the date of receipt of the writ of the order.
4. With the above observations and directions, this application is disposed of. Direct service is permitted.
2.5. It appears that on 22.07.2015, she was informed that her request or rather the claim for lumpsum compensation was rejected.
3. Hence this petition.
4. The otherside that the respondents have appeared and on behalf of the respondent no.1, an affidavitinreply has been filed duly affirmed by the Dy. Superintendent of Police, Mehsana, interalia stating as under: "4. It is respectfully submitted that none of the fundamental or legal rights of the petitioners has been violated because of any action or inaction on the part of any of the present respondents and therefore, the present petition is not maintainable in law and the same deserves to be dismissed in limine. It is respectfully submitted that my non dealing with the petition parawise may not be construed as admission on my part.
5. It is the case of the petitioner that the order dated 22.07.2015 should be quashed and set aside and that the petitioner is entitled for financial assistance as per G.R. dated 05.07.2011.
6. At the outset, I state that the impugned order dated 22.07.2015 at Page11 is well reasoned selfspeaking order and does not require any interference by this Hon'ble Court.
7. Without prejudice to the aforesaid contention, I state that, no legal valid ground is made in the petition which will enable this Hon'ble Court to exercise extraordinary jurisdiction and mere technical grounds are taken to support the contentions of the petitioner.
8. Therefore, on the above ground itself, the petition should not be entertained.
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9. It would be relevant to note that, the husband of the petitioner died on 08.10.2010, whereas for the first time the application for compassionate appointment was made on 15.10.2014. Therefore, the Hon'ble Court in earlier round of litigation being SCA No.10027/2015 had directed the authorities to decide whether the petitioner is entitled for the benefit under G.R. dated 05.07.2011.
10. Accordingly, the respondent authority on 22.07.2015 by relying upon the G.R. dated 07.09.2002 with specifically states that if application for compassionate appointment is not made within 6 months from the date of death, then the same would be considered as not interested for compassionate appointment and accordingly, the application would be considered as rejected. A copy of the G.R. dated 07.09.2002 is annexed herewith and marked as AnnexureRI.
11. So far as G.R. dated 05.07.2011 is concerned, it is specifically stated that if a decision is already taken in that case, the benefits of lumpsum payment would not be entitled for. Since in the present case considering the relevant clause of G.R. dated 07.09.2002, wherein not applying within 6 months is considered as a right which is forgone, the petitioner would not be entitled for benefits of 05.07.2011. Thus, the impugned order which reiterates above two grounds is legal and justified according to the prevailing policy of the State Government. A copy of the G.R. dated 05.07.2011 is annexed herewith and marked as AnnexureII.
12. Even otherwise, at the relevant point of time by order dated 03.03.2015 at Page15, it was already brought to the notice of the petitioner that since she had not made an application within the stipulated time period, in spite of the fact that she was made aware to apply for compassionate appointment on 06.01.2011, having failed to not apply within the time period, her application was rejected. A copy of the letter dated 06.01.2011 by which the petitioner was informed to apply within time period is annexed herewith and marked as AnnexureIII.
13. Therefore, the ground that the petitioner being an illiterate lady was not aware and that it was the responsibility of the authorities to make her aware is against the records of letter dated 06.01.2011 by which the petitioner was informed to apply within time period."
5. On 01.10.2015, the following order was passed:
1. Petitioner herein is seeking quashment of the order dated Page 4 of 9 HC-NIC Page 4 of 9 Created On Thu Mar 17 02:50:21 IST 2016 C/SCA/15880/2015 ORDER 22.7.2015 whereby she has been denied the benefit of lumpsum compensation in lieu of the compassionate appointment.
2. It is the say of the petitioner that after the death of her husband on 8.12.2010, she had moved to her native and at no point of time, she had received the communication of the Department dated 9.1.2011 mentioned in the order impugned dated 22.7.2015. It is her say that it is quite unlikely that the petitioner despite being aware of financial assistance that she would be requiring would choose not to apply. It is only after a long gap of 4 years that she had made such request on 15.10.2014.
3. Notice for final disposal returnable on 26.10.2015. Learned Assistant Government Pleader Mr.Swapneshwar Goutam waives service of notice for respondents. Let reply of the Government be furnished to the other side on or before 15.10.2015. Rejoinder if any, to be filed on or before 24.10.2015.
6. Mr. Vyas, the learned counsel appearing for the petitioner submitted that in the year 2011, when the petitioner was informed whether she was interested in seeking compassionate appointment or not, she had no idea about anything. Mr. Vyas submitted that although there is an endorsement acknowledging the written intimation about the compassionate appointment, yet the petitioner being an illiterate lady was not made to understand anything about the compassionate appointment. According to Mr. Vyas, in such circumstances, she could not file appropriate application in time.
7. For the present, I may accept the submission canvassed on behalf of the petitioner referred to above, but I am afraid no case is made out for grant of the lumpsum amount by way of compensation for more than one reason. First, the petitioner received about more than Rs.4,00,000/ towards the gratuity and is also drawing pension of Rs.3,500/ per month. It is true that there is a Policy of the State Government to provide lumpsum amount by way of compensation, but it is not an absolute right. It is for the State Government to consider grant of such lumpsum amount by way of compensation in the facts of each case.
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8. Having regard to the fact that almost five years have passed since the demise of the husband and also, considering the fact that she is drawing pension of Rs.3,500/ per month and has also, received other retiral benefits, I am of the view that no case is made out for any lumpsum amount by way of compensation.
9. I may refer to and rely upon the decision of this Court in the case of 'Kiritkumar Maganlal Vadher, son of Maganlal Nanjibhai Vadher Vs. State of Gujarat & Ors.'; Special Civil Application No.11237 of 2009, decided on 16.07.2015. I may quote the observations made by this Court as under: "By now it is wellsettled that the compassionate appointment cannot be claimed as a matter of right as it is not a vested right. The philosophy and the object underlying the compassionate appointment is to provide immediate relief and succour to the bereaved family who would get into difficulties on account of the loss of the only earning member in the family. The father of the petitioner had passed away way back in the year 2006. Of course, it is true that there is a policy of the State Government to provide for compassionate appointment, and if an application is filed, the concerned authority has to look into the same in accordance with the policy. For the time being I am ready to accept the submission of Mr.Joshi that the date on which his client had applied for compassionate appointment, there was no requirement of clearing the S.S.C. Exam, but at the same time, I should also be not oblivious of the fact that the petitioner has come up with this application under Article 226 of the Constitution of India and this Court may refuse to grant any equitable relief, even if any action is found to be not in accordance with law. I am taking this view because after a period of almost 9 years if the son is given compassionate appointment, then the very object of this particular policy would get defeated.
I may quote with profit a decision of the Supreme Court in the case of MGB Gramin Bank v. Chakrawarti Singh, AIR 2013 SC 3365. I may quote paragraphs 5 to 13 of the decision as under :
5. Every appointment to public office must be made by strictly adhering to the mandatory requirements of Articles 14 and 16 of Page 6 of 9 HC-NIC Page 6 of 9 Created On Thu Mar 17 02:50:21 IST 2016 C/SCA/15880/2015 ORDER the Constitution. An exception by providing employment on compassionate grounds has been carved out in order to remove the financial constraints on the bereaved family, which has lost its breadearner. Mere death of a Government employee in harness does not entitle the family to claim compassionate employment. The Competent Authority has to examine the financial condition of the family of the deceased employee and it is only if it is satisfied that without providing employment, the family will not be able to meet the crisis, that a job is to be offered to the eligible member of the family. More so, the person claiming such appointment must possess required eligibility for the post. The consistent view that has been taken by the Court is that compassionate employment cannot be claimed as a matter of right, as it is not a vested right.
The Court should not stretch the provision by liberal interpretation beyond permissible limits on humanitarian grounds.
Such appointment should, therefore, be provided immediately to redeem the family in distress. It is improper to keep such a case pending for years.
6. In Umesh Kumar Nagpal v State of Haryana & Ors., (1994) 4 SCC 138, this Court has considered the nature of the right which a dependant can claim while seeking employment on compassionate ground. The Court observed as under: The whole object of granting compassionate employment is, thus, to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post much less a post for post held by the deceased.&. The exception to the rule made in favour of the family of the deceased employee is in consideration of the services rendered by him and the legitimate expectations, and the change in the status and affairs of the family engendered by the erstwhile employment which are suddenly upturned.&. The only ground which can justify compassionate employment is the penurious condition of the deceaseds family. The consideration for such employment is not a vested right. The object being to enable the family to get over the financial crisis. (Emphasis added)
7. An ameliorating relief should not be taken as opening an alternative mode of recruitment to public employment. Furthermore, an application made at a belated stage cannot be entertained for the reason that by lapse of time, the purpose of making such appointment stands evaporated.
8. The Courts and the Tribunals cannot confer benediction impelled by sympathetic considerations to make appointments on Page 7 of 9 HC-NIC Page 7 of 9 Created On Thu Mar 17 02:50:21 IST 2016 C/SCA/15880/2015 ORDER compassionate grounds when the regulation framed in respect thereof did not cover and contemplate such appointments.
9. In A. Umarani v Registrar, Cooperative 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 Blacks 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 Websters 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: Bibi Sayeeda v State of Bihar AIR 1996 SC 516; and J.S. Yadav v State of Uttar Pradesh (2011) 6 SCC 570) 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 derived by a party, the policy decision/ scheme could be changed. (Vide: Kuldip Singh v Government, NCT Delhi AIR 2006 SC 2652)
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. vs. 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 Page 8 of 9 HC-NIC Page 8 of 9 Created On Thu Mar 17 02:50:21 IST 2016 C/SCA/15880/2015 ORDER 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.
In the overall view of the matter, I am not convinced with the case of the petitioner."
10. For the forgoing reason, this petition fails and is hereby rejected. Notice is discharged.
(J.B.PARDIWALA, J.) aruna Page 9 of 9 HC-NIC Page 9 of 9 Created On Thu Mar 17 02:50:21 IST 2016