Gujarat High Court
Dineshkumar Ramanlal Thakarda vs Administrator on 2 March, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/12175/2013 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 12175 of 2013
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DINESHKUMAR RAMANLAL THAKARDA....Petitioner(s)
Versus
ADMINISTRATOR....Respondent(s)
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Appearance:
MR. YOGENDRA THAKORE, ADVOCATE for the Petitioner(s) No. 1
MR HS MUNSHAW, ADVOCATE for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 02/03/2016
ORAL ORDER
By this writ-application under Article 226 of the Constitution of India, the petitioner, son of the deceased employee of the respondent Trust, has prayed for the following reliefs :
"(A) This Honourable Court may be pleased to allow this Special Civil Application.
(B) That this Honourable Court may be pleased to issue writ of mandamus or any other appropriate writ, order or direction which this Court deems fit by commanding the respondent herein to consider the case of the petitioner for the appropriate post looking to the educational qualification of the petitioner and further pleased to direct the respondent to give compassionate appointment taking into consideration the facts and circumstances of the case;
(C) Pending hearing and final disposal of the present Page 1 of 10 HC-NIC Page 1 of 10 Created On Thu Mar 03 02:45:15 IST 2016 C/SCA/12175/2013 ORDER petition, as the Honourable Court may be pleased to direct the respondent herein to consider the case of the petitioner for the appropriate post looking to the educational qualification of the petitioner and further pleased to direct the respondent to give compassionate appointment taking into consideration the facts and circumstances of the case;
(D) Such other and further relief/s as deemed fit in the facts and circumstances of this case may kindly be granted."
The facts of this case may be summarised as under :
The father of the petitioner late Shri Ramanlal Jethalal Thakarda was serving with the Trust as a Security Personnel. The respondent is a charitable trust registered under the Bombay Public Trusts Act. The Administrator of the Trust is appointed by the Government of Gujarat. The father of the petitioner passed away on 2nd March 2009 while in service. The petitioner preferred an application dated 23rd March 2009 for compassionate appointment.
It appears that the State Government, by Government Resolution dated 5th July 2011, changed the policy so far as the compassionate appointment is concerned. The Government decided to do away with the policy of providing compassionate appointment, and instead, thought fit to provide for a lumpsum amount to the bereaved family by way of compensation. The object remains the same, i.e. 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.
By the time an appropriate decision could be taken as regards the application of the petitioner for compassionate Page 2 of 10 HC-NIC Page 2 of 10 Created On Thu Mar 03 02:45:15 IST 2016 C/SCA/12175/2013 ORDER appointment, the Government Resolution dated 5th July 2011 came into force. The petitioner was, accordingly informed vide letter dated 5th January 2012 that his application for compassionate appointment has been rejected in view of the change in the policy. Hence, this petition.
Mr.Thakor, the learned counsel appearing for the petitioner, submitted that the respondent has committed an error in rejecting the application for compassionate appointment on the ground of change in the policy for the simple reason that much prior to the Government Resolution dated 5th July 2011, his client had applied for compassionate appointment and the application was not rejected before 5th July 2011 i.e. the date of the Government Resolution. His argument is that if his application would have been rejected prior to 5th July 2011, then probably he would have no case because then he would be governed by the new policy. He, therefore, urged that an appropriate direction be issued to the respondent to appoint the petitioner on compassionate ground, the way the Trust has appointed one Shri Satishdan P.Gadhvi as a Clerk.
On the other hand, this writ-application has been opposed by Mr.Munshaw, the learned counsel appearing for the Trust.
It would not be out of place to state at this stage that I have my own doubts as regards the maintainability of this writ- application. The respondent is a religious charitable trust registered under the Bombay Public Trusts Act. The Administrator of the said Trust may be appointed by the Page 3 of 10 HC-NIC Page 3 of 10 Created On Thu Mar 03 02:45:15 IST 2016 C/SCA/12175/2013 ORDER Government, but that by itself, would not make it a State or an instrumental of a State within the meaning of Article 12 of the Constitution of India. Although a preliminary objection as regards the maintainability of this writ-application on this ground has not been raised, yet I thought fit to discuss the same.
Be that as it may, the stance of the Trust is clear as reflected from the affidavit-in-reply filed and affirmed through the Administrator, inter alia, stating as under :
"2. The respondent most respectfully submits that Shree Arasuri Ambaji Mata Devasthan Trust is registered under the provisions of Bombay Public Trust Act and the Chairman as well as the Administrator of the Trust are appointed by the Government of Gujarat. The respondent submits that one Mr.Ramanlal Jethalal Thakarda was an employee of the respondent Trust and serving as Guard and passed away on 02/03/2009 while he was in service of the Trust. It is submitted that thereafter the petitioner herein addressed an application dated 23/03/2009 for compassionate appointment and a copy thereof is annexed herewith and marked as Annexure-A. The respondent submits that necessary information and record was called from the petitioner.
3. The respondent submits that the Government of Gujarat through its General Administration Department issued a Government Resolution dated 05/07/2011 laying down a policy for payment of lump sum financial assistance to the dependents of Class-III and Class-IV deceased employees who are expired while in service and a copy of the Resolution is annexed herewith and marked as Annexure-B. It is most respectfully stated that considering the said Resolution it is clear that no compassionate appointments were to be made and therefore, the petitioner was informed about the policy of payment of lump sum financial assistance and further instructed to provide the details and a copy of said letter dated 02/06/2012 is annexed herewith and marked as Annexure-C. It is submitted that as the petitioner herein Page 4 of 10 HC-NIC Page 4 of 10 Created On Thu Mar 03 02:45:15 IST 2016 C/SCA/12175/2013 ORDER did not take any action, it was thought fit to issue reminders dated 26/06/2012 as well as 08/08/2012 and the copies thereof are annexed herewith and marked as Annexure-D & E respectively. The respondent most respectfully submits that the petitioner who is complaining about the pendency of application has not cooperated with the Authority.
4. The respondent craves leave to submit that meanwhile the Dy. Secretary (Tourism), Industries & Mines Department, Government of Gujarat at Gandhinagar is addressed a letter dated 31/07/2012 requesting for appropriate orders to enable the Temple Trust to make the payment of lump sum financial assistance to the heirs of three deceased employees and a copy of letter dated 31/07/2012 annexed herewith and marked as Annexure-F. The respondent humbly submits that the said proposal is pending with the State Government for appropriate orders.
5. The respondent most respectfully submits that as per the policy of the State Government, the petitioner is to be paid a benefit of lump sum financial assistance by the Trust and there cannot be any insistence only for compassionate appointment as it is a matter of policy. It is further stated that compassionate appointment or such financial assistance is not a matter of right as held by the Hon'ble Supreme Court of India as well as Hon'ble High Court of Gujarat in CATATA Judgments and insistence for compassionate appointment and non cooperation for lump sum assistance are contrary to the policy of the Trust. It is humbly stated that the petitioner herein has cited a case of one Mr.Satishdan Gadhvi for compassionate appointment ignoring the vital facts that late Mr.Pratapdan Gadhvi had passed away in the year 2000 and thereafter an application for compassionate appointment was submitted by his son was under active consideration and a proposal was sent to the Government on 22/11/09 for approval and subsequent to clearance by the competent authority, the appointment order was issued on 18/09/2009. In other words, the petitioner cannot equate his case with the case of Satishdan Gandhvi.Page 5 of 10
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6. In view of the above mentioned facts & circumstances, it is crystal clear that the respondent has not acted in any illegal, unjust or arbitrary manner and as such the policy of the State Government is strictly adhered to and hence this Hon'bie Court is humbly prayed not to grant any interim relief and reject the present Special Civil Application in limine with cost in the interest of justice."
Thus, it appears from the stance of the respondent that it has decided to provide for a lumpsum financial assistance in accordance with the policy of the State Government dated 5th July 2011. I am not going into the question, whether an employee of the respondent Trust could be termed as a Government servant so as to make the scheme of the State Government applicable in the present case.
Since the Trust on its own has taken the decision and the same has been stated on oath, the Trust shall accordingly proceed further with the matter. Let appropriate orders be passed as regards providing of a lumpsum amount by way of compensation in tune with the Government Resolution dated 5th July 2011, within a period of two months from today.
By now it is well-settled 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. 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. At the same time, I Page 6 of 10 HC-NIC Page 6 of 10 Created On Thu Mar 03 02:45:15 IST 2016 C/SCA/12175/2013 ORDER 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 7 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 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 bread-earner. 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.
Page 7 of 10HC-NIC Page 7 of 10 Created On Thu Mar 03 02:45:15 IST 2016 C/SCA/12175/2013 ORDER 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 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., Page 8 of 10 HC-NIC Page 8 of 10 Created On Thu Mar 03 02:45:15 IST 2016 C/SCA/12175/2013 ORDER 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 Page 9 of 10 HC-NIC Page 9 of 10 Created On Thu Mar 03 02:45:15 IST 2016 C/SCA/12175/2013 ORDER 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.
With the above, this writ-application is disposed of. Direct service is permitted.
(J.B.PARDIWALA, J.) MOIN Page 10 of 10 HC-NIC Page 10 of 10 Created On Thu Mar 03 02:45:15 IST 2016