Gujarat High Court
Kiritkumar Maganlal Vadher Son Of ... vs State Of Gujarat & 4 on 16 July, 2015
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/11237/2009 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 11237 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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KIRITKUMAR MAGANLAL VADHER SON OF MAGANLAL NANJIBHAI
VADHER....Petitioner(s)
Versus
STATE OF GUJARAT & 4....Respondent(s)
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Appearance:
MR HASIT H JOSHI, ADVOCATE for the Petitioner(s) No. 1
MR ROHAN YAGNIK, AGP for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2 - 5
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 16/07/2015
ORAL JUDGMENT
By this writ-application under Article 226 of the Page 1 of 9 C/SCA/11237/2009 JUDGMENT Constitution of India, the petitioner has prayed for the following reliefs :
"(A) Admit this petition.
(B) Quash and set aside the order of respondent no.3 dated 7.7.2008 as well as order of Gujarat Subordinate Service Selection Board, Gandhinagar dated 30th June 2008 by declaring it as unjust, improper and contrary to decisions of this Hon'ble Court and Apex Court and be further pleased to direct respondents to reconsider his case for compassionate appointment sympathetically and offer him appointment on compassionate ground immediately while considering the fact that at the time of death of his father, Circular dated 25.4.2008 which is providing of condition of passing examination within six months was not in force.
(C) Pending admission, hearing and final disposal of this petition, Your Lordships be pleased to direct respondents to reconsider his case and grant relief in terms of para 7(B) as ad interim or interim relief in the larger interest of justice.
(D) Grant such other and further reliefs as deemed just and proper in the facts and circumstances of the case."
The case of the petitioner may be summarised as under :
The father of the petitioner was serving as a Clerk (Class- III employee) in the Sajula Girls High School, Jamnagar. The father of the petitioner died while in service on 24th May 2006, leaving behind his wife, two sons and one daughter.
On 13th June 2006, the mother of the petitioner preferred an application addressed to the Principal of the Sajula Girls High School, Jamnagar, for providing compassionate appointment to her son i.e. the petitioner herein. The Principal Page 2 of 9 C/SCA/11237/2009 JUDGMENT of the Sajula Girls High School, Jamnagar, in turn, forwarded the said application to the respondent no.5. On 2nd June 2006, the petitioner gave an undertaking that he would clear the S.S.C. Exam before he is given the appointment on compassionate grounds.
It appears that the petitioner was not able to clear the S.S.C. Exam and failed in two subjects. In March 2007, the petitioner appeared in the S.S.C. Exam and cleared the two subjects. In May 2007, he informed the respondents that he had cleared the S.S.C. Exam.
It appears that in 2008, the request for compassionate appointment was turned down.
Being dissatisfied, the petitioner has come up with this writ-application.
Mr.Hasit Joshi, the learned advocate appearing for the petitioner, vehemently submitted that the authorities committed a serious error in rejecting the application for compassionate appointment. He submitted that at the time when the petitioner applied for compassionate appointment, there was no policy of the State Government that the persons seeking compassionate appointment should have cleared the S.S.C. Exam. Mr.Joshi submitted that such policy came into force on 25th April 2008.
Mr.Joshi submitted that since the application for compassionate appointment was filed in time, it was the duty of the concerned authorities to consider the same and provide Page 3 of 9 C/SCA/11237/2009 JUDGMENT the appointment to the petitioner.
On the other hand, this application has been vehemently opposed by Mr.Yagnik, the learned AGP appearing for the State. He submitted that no error, not to speak of any error of law, could be said to have been committed by the authorities in rejecting the request of the petitioner for compassionate appointment.
Mr.Yagnik has placed reliance on the averments made in the affidavit-in-reply filed on behalf of the respondent no.4. I may quote the relevant paragraphs of the affidavit as under :
"6. I say and submit that the father of the petitioner was serving as junior clerk who passed away on 24.05.2006. After the death of the father, his heirs namely Kiritkumar Maganlal Vadher had applied for the appointment on compassionate ground and the same was forwarded to the present answering respondent authority on 12.12.2007. That the said application was examined and it was found that as per the Government Resolution dated 16.03.2005 the minimum qualification of 10th pass is fixed for six months, therefore, the application of the present petitioner was rejected and said order was intimated vide communication dated 30.06.2008.
7. I say and submit that as per the resolution passed by the General Administration Dept. dated 10.03.2000 the time limit has been fixed for six months from the date of the death of deceased employee. It was further clarified that within the period of six months the heirs must have completed 18 years and for the Class-IV and Class-III employee the minimum qualification has been fixed. As per the notification dated 16.03.2005 of General Administrative Dept. for the Class-IV employee the minimum educational qualification is fixed of S.S.C. Pass. It was clarified that the said resolution will be applicable in the case, in which the appointment is given after the date of the notification.Page 4 of 9
C/SCA/11237/2009 JUDGMENT
8. I say and submit that the father of the petitioner was died on 24.05.2006 at that point of time the petitioner was having the educational qualification of 9th pass. The petitioner is not having the minimum educational qualification which is required for Class-IV employee. Then also the said application was forwarded on 12.12.2007 to the present respondent no.3 but as the petitioner does not possess the minimum qualification, therefore, his application was rejected.
9. I say and submit that the petitioner has cleared the examination of 10th subsequently in March 2007, which is much later to the date of the application. He does not possess the minimum qualification within the prescribed time limit therefore, his application was rightly rejected. The resolution dated 10th March 2000 is more clarification in the resolution dated 29.03.2007 and 25.04.2008 which provides minimum qualification in time limit and after considering this aspect the authority has rightly rejected the application therefore no interference is required and petition is required to be dismissed."
Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for my consideration is, whether the petitioner should be provided appointment on compassionate grounds.
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. 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 Page 5 of 9 C/SCA/11237/2009 JUDGMENT 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 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.Page 6 of 9
C/SCA/11237/2009 JUDGMENT 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 deceased's 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.
Page 7 of 9C/SCA/11237/2009 JUDGMENT
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., 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 Black's 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 Webster's 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:
Page 8 of 9C/SCA/11237/2009 JUDGMENT "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-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.
In the result, this application fails and is hereby rejected. Rule stands discharged.
(J.B.PARDIWALA, J.) MOIN Page 9 of 9