Gujarat High Court
Indravadan Natvarbhai Patel vs State Of Gujarat on 26 February, 2020
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/6047/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6047 of 2017
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INDRAVADAN NATVARBHAI PATEL
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MR VANDAN BAXI FOR MRS VD NANAVATI(1206) for the Petitioner(s) No.
1
MS ANUJA S NANAVATI(5229) for the Petitioner(s) No. 1
MR ISHAN JOSHI, AGP for the Respondent(s) No. 1
MS. NIDHI TRIVEDI FOR MR DIPAK R DAVE(1232) for the Respondent(s)
No. 2
NOTICE SERVED(4) for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE BIREN VAISHNAV
Date : 26/02/2020
ORAL ORDER
1. In this petition under Article 226 of the Constitution of India, the petitioner has come forward to this Court with the following prayers:
"7(A) Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction, quashing and setting aside the decision of the Respondent Corporation in not giving compassionate appointment to the present petitioner and further be pleased to direct the Respondent Corporation to consider the case of the petitioner for compassionate appointment treating the petitioner at par with Mr.S.J. Solanki and Mr.P.J.Parmar whose names are figured at Sr.No.18 and 19 in the list of approved cases for compassionate appointment.
(B) Pending hearing and till the final disposal of present petition, Your Lordships may be pleased to direct the Respondent Corporation, their servants, agents and subordinates to keep one post vacant of lineman/wireman till the final disposal of the present petition and/or if the Respondent Corporation may appoint any person on the said post, Your Lordships may be pleased to direct the Respondent Corporation to mention in their appointment orders that their appointments are subject to the final outcome of the present petition."
2. The case of the present petitioner is as follows:
2.1. It is the case of the petitioner that the petitioner's father Natvarbhai Page 1 of 6 Downloaded on : Sat Feb 29 21:08:56 IST 2020 C/SCA/6047/2017 ORDER Chandubhai Patel was appointed as Helper with the Gujarat Electricity Board (for short "the Board") on 10.05.1988. He was then promoted to the post of Lineman. The case of the petitioner further is that on a medical examination/investigation carried out on 01.05.2013, the Pathology Report suggested that the petitioner was suffering from cancer.
The policy of the Board dated 15.03.1986 provided that the dependents of employees suffering from terminal disease like cancer of any part of the body would be entitled to be considered for employment in the Board subject to availability of vacancy. Such policy being in force even by subsequent resolutions dated 29.01.2010 and 25.04.2013, the petitioner keeping in view the fact that his father was suffering from cancer made an application on 13.10.2014 for being considered for appointment as a dependent. A certificate was submitted on 04.09.2015 of the Medical Board of the SSG in support of his claim. The petitioner in his petition claims that since he is qualified ITI Wireman, he is eligible to be considered for such appointment.
3. Mr.Vandan Baxi, learned advocate appearing for the petitioner has submitted that after the application was so made in the year 2014, there was no response to the application of the petitioner and it was only when in February, 2017, the petitioner applied through RTI that he was informed that his application for appointment on compassionate ground was rejected.
3.1. Mr.Vandan Baxi, learned advocate for the petitioner, has invited the attention of this Court to a table of previous cases of compassionate appointment as per the policy of 15.03.1986. He would submit that one Shri S.J.Solanki and Shri P.J.Parmar, whose applications were subsequent to that of the petitioner i.e. 25.11.2014 and 17.06.2015 were considered Page 2 of 6 Downloaded on : Sat Feb 29 21:08:56 IST 2020 C/SCA/6047/2017 ORDER and the benefit of the policy was granted to their dependents. In short, therefore, Mr.Baxi would submit that when the policy clearly provided a dependent to be considered for appointment, as the petitioner's father was undisputedly suffering from cancer and when subsequent applicants were considered for such benefit, the case of the petitioner ought to have been considered and he should have been appointed on compassionate grounds.
4. Ms.Nidhi Trivedi, learned advocate for Mr.Dipak Dave, learned advocate appearing for the respondent no.2 has invited the attention of this Court to the affidavit-in-reply filed by the Board (at page No.99) and submitted that according to the board, the petitioner at the first instance submitted a certificate dated 04.09.2015 (at page No.84). Such certificate when read would suggest that in the opinion of the medical board, the patient is fit for light duties. In accordance with the certificate, the petitioner, who was otherwise a Lineman, was assigned desk job. He immediately, thereafter, inwarded another certificate of the same date in the company on 05.11.2015. The certificate of the same date showed that the opinion of the Board was that the patient is not fit for duties. The two certificates, therefore, showed two different facts showing that the petitioner committed forgery and therefore, he was not considered eligible for the benefit of the policy of 15.03.1986. In addition thereto, admittedly, the petitioner in lieu of his fitness continued to serve the Board and retired at the age of superannuation.
4.1. As far as the case of discrimination vis-a-vis the other two employees is concerned, it is pointed out from the affidavit-in-reply that such employees, who retired on medical grounds, did not serve till their age of superannuation and therefore, the benefits were given to their Page 3 of 6 Downloaded on : Sat Feb 29 21:08:56 IST 2020 C/SCA/6047/2017 ORDER dependents.
5. Considering the submissions of the learned advocates appearing for the respective parties, it will be fruitful to reproduce the policy of compassionate appointment as reserved by virtue of the policy dated 15.03.1986. The policy reads as under:
"Resol. No.5283:
The Board approved that as a policy, dependents of employees suffering from terminal disease like cancer of any part of the body, retinal degeneration of both eyes, loss of vision of both eyes due to brain disease, complete heart failure of both ventricular along with congestive cardiac failure and enlarged heart with cardiac asthama, complete paralysis of both upper and lower libs and failure of both kidneys, could be considered for employment in the Board subject to availability of vacancy and qualification requirements laid down, and subject also to the condition that the family has no other source of income. Such appointments would be considered only if the sick employee is retired on these medical grounds.
The Chairman was authorised to decide cases on merits, including that of Smt.Umaben N. shah on the above lines."
Reading of the policy would indicate that the dependents of the employees suffering from terminal diseases like cancer, which was the case of the petitioner's father would entitle a dependent to be considered for employment in the Board. Such appointments would be considered only if the sick employee is retired on this medical ground.
6. It is in this context that the case of the petitioner has to be viewed. The certificate (at page No.84 of the paper book) reads as under:
"This is to certify that Shri Patel Natwarbhai C. Aged:-56 years examined by Standing Medical Board, S.S.G. Hospital, Vadodara, vide O.P.D. case paper No:-VDR/15/00204497, date:-03/08/2015 and Opined by Professor & Head Dept. of E.N.T., Head & Neck Surgery Medical college & SSG Hospital, Vadodara that Patient can not be considered to be fit to resume duties as he is suffering from CA(L) hard palate & under follow up. He is not fit to resume duties as Lineman dealing with Page 4 of 6 Downloaded on : Sat Feb 29 21:08:56 IST 2020 C/SCA/6047/2017 ORDER Electrical insulations. AND Opined by Professor & Head, Dept. of Radiotherapy, Medical college & S.S.G. Hospital, Vadodara, that the patient is fit for light duties, in view of his H/O CA(L) palate."
It appears on the basis of the certificate, the petitioner's father was assigned light duties. Subsequently, on the same date by an inward dated 05.11.2015, the petitioner produced another certificate, the relevant part of which would suggest as under:
"This is to certify that Shri Patel Natwarbhai C. Aged:-56years examined by Standing Medical Board, S.S.G. Hospital, Vadodara, vide O.P.D. case Paper No:-VDR/15/00204497, date:-03/08/2015 and Opined by Professor & Head Dept. of E.N.T., Head & Neck Surgery Medical college & SSG Hospital, Vadodara that Patient can not be considered to be fit to resume duties as he is suffering from CA(L) hard palate & under follow up. He is not fit to resume duties as Lineman dealing with Electrical insulations. AND Opined by Professor & Head, Dept. of Radiotherapy, Medical college & S.S.G. Hospital, Vadodara, that the Patient is not fit for duties."
7. The above, therefore, clearly indicates that from the variants of the certificate that are on record of the Board, the Board in its wisdom found that the petitioner's father had not come clean by his action of producing two certificates, which suggest that the petitioner's father was fit for light duties and/or not fit for light duties. Accepting the first certificate, the petitioner's father was assigned light duties by the Board. He accepted the Board's gesture and continued to perform such duties till he is retired on age of superannuation in the year 2016. This was a case, therefore, where the benefit of the policy dated 15.03.1986 could not be given to the petitioner.
8. As far as the second contention of Mr.Baxi, learned advocate for the petitioner, that the applicants who applied subsequently have been granted such benefit and therefore, the challenge on the test of Article 14 of the Constitution of India, it is clear from reading the affidavit-in-reply that in both these cases on consideration of their applications, the original Page 5 of 6 Downloaded on : Sat Feb 29 21:08:56 IST 2020 C/SCA/6047/2017 ORDER employees retired on medical grounds prior to their regular date of superannuation. They did not continue with their service till they retired. The policy made way for the dependents.
9. Based on these facts and circumstances, the decision of the Board in not considering the case of the petitioner as fit to be appointed on compassionate grounds cannot be faulted. The petition is accordingly dismissed. Notice is discharged.
(BIREN VAISHNAV, J) ABHISHEK Page 6 of 6 Downloaded on : Sat Feb 29 21:08:56 IST 2020