Gujarat High Court
Mukesh Labhshankar Joshi vs Gujarat State Electricity Corporation ... on 4 May, 2018
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/12155/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12155 of 2015
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MUKESH LABHSHANKAR JOSHI
Versus
GUJARAT STATE ELECTRICITY CORPORATION LIMITED
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Appearance:
MR HARSHADRAY A DAVE(3461) for the PETITIONER(s) No. 1
MR DIPAK R DAVE(1232) for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 04/05/2018
ORAL ORDER
Heard Mr. H.P.Dave, learned advocate for the petitioner and Mr. D.R.Dave, learned advocate for the respondent.
2. In present petition, the petitioner has prayed, inter alia, that:-
"7b) This Hon'ble Court be pleased to issue a writ of mandamus or certiorari or in the nature of mandamus or certiorari or any other appropriate writ, order or direction, quashing and setting aside the order dated 25th November 2014 passed by the Respondent at Annexure A and declare the same to be null and void;
c) This Hon'ble Court be pleased to issue a writ of mandamus or in the nature of mandamus or any other appropriate writ, order or direction, directing the Respondent to appoint the daughter of the Petitioner in his place on compassionate ground as per the circular;"
3. The petitioner is aggrieved by the respondent's decision of not accepting his Page 1 C/SCA/12155/2015 ORDER request for his daughter's appointment on compassionate ground. He also seeks direction against the respondent that the respondent should appoint his daughter on compassionate ground. 3.1 For the reasons mentioned by the respondent in its decision dated 25.11.2014 as well as in light of the explanation in reply affidavit, the respondent did not accept the petitioner's claim. 3.2 Therefore, the dispute between both sides. 3.3 Hence, present petition.
4. So far as factual background is concerned, it has emerged from the record that the petitioner herein was an employee of respondent electricity company.
4.1 The petitioner has claimed that he joined the respondent company and was working at Dhuvaran power station since 1974, as Plant Operator Grade Page 2 C/SCA/12155/2015 ORDER I. 4.2 The petitioner has alleged and claimed that he suffered from certain ailments (partial/slow loss of vision).
4.3 Therefore, he submitted a request to the respondent company to grant appointment to his daughter on compassionate ground. 4.4 Before proceeding further, it is relevant and necessary to mention at this stage that when the petitioner submitted such request to the respondent company, he was in service.
Differently put, while he continued in service, he submitted and pursued the application.
4.5 It is also not in dispute that the petitioner retired from service on attaining superannuation. Thus, he lived and exhausted entire tenure of service until he attained age of superannuation Page 3 C/SCA/12155/2015 ORDER and retired on superannuation on 31.8.2014.
Thus, any circumstances which ordinarily justify application by heirs/legal representative of an employee, do not exist in present case e.g. sad demise of employee or forced and premature retirement on account of continued ill-health.
Ordinarily, such claim is not made by heir and legal representative of an employee. In present case, the employee submitted and pursued the application.
4.6 Despite this position, the petitioner continued to insist and he still insists that the respondent should give appointment to his daughter on compassionate ground. 4.7 It appears that it was somewhere in June 2014 that the petitioner submitted the application to the respondent and sought appointment on compassionate ground for his daughter. 4.8 The board considered the petitioner's Page 4 C/SCA/12155/2015 ORDER application and vide communication dated 15.7.2014, the petitioner was conveyed that his application cannot be accepted because it does not fall within the ambit of the rules. 4.9 It appears that sometime thereafter, the petitioner submitted another application i.e. application dated 28.7.2014 and he again demanded appointment on compassionate ground for his daughter. He, again, based his demand on the premise that he suffered from ailment viz. defect in vision.
4.10 When the petitioner submitted second application dated 28.7.2014, the respondent company forwarded its reply in response to the said application vide communication dated 13.7.2014 and while rejecting the said request, the respondent company informed the petitioner that,
(a) he has not suffered complete loss of vision;
Page 5 C/SCA/12155/2015 ORDER
(b) he is still in service and not retired on the ground of ailment; and
(c) he has not even availed any leave on medical ground; and
(d) that even otherwise, he would retire, on superannuation within one month i.e. in August 2014.
4.11 After receipt of said reply dated 30.7.2014, the petitioner insisted that he had lost 100% vision and with such stand, the petitioner submitted third application on 19.8.2014 and again asked for appointment on compassionate ground for his daughter.
4.12 It is pertinent that even at this stage, he continued in service. He never sought voluntary/early retirement on ground of ill- health nor the company forced him to retire on the ground that he was unable to perform his duties.
The respondent company once again considered the petitioner's request and rejected the said Page 6 C/SCA/12155/2015 ORDER request vide decision dated 25.11.2014. 4.13 The said communication dated 25.11.2014 is challenged in present petition.
4.14 In aforesaid factual background, the petitioner also demands direction against respondent company that it should grant appointment to his daughter on compassionate ground.
5. According to learned advocate for the petitioner, the respondent's decision/order dated 25.11.2014 is arbitrary, unjust and contrary to its policy. Learned advocate for the petitioner heavily relied on the resolution passed by the Board i.e. Resolution No.5283 of 1986 dated 15.3.1986 and, on the strength of said resolution, learned advocate for the petitioner submitted that the request by the petitioner for appointing his daughter on compassionate ground in light of the Board Resolution dated 15.3.1986 Page 7 C/SCA/12155/2015 ORDER should have been accepted. However, by rejecting the request vide decision dated 25.11.2014, the respondent acted illegally and arbitrary. According to the petitioner, the policy to grant appointment on compassionate ground should be carried out and implemented with lenient approach and by keeping in focus the spirit of the policy and not by implementing the provision literally and strictly. According to learned advocate for the petitioner, the Board's decision to reject the petitioner's request to appoint his daughter on compassionate ground in view of his deteriorated health is, just and proper and therefore, the said decision should be set aside and the respondent should be directed to grant appointment to his daughter.
6. Learned advocate for the respondent company opposed the submissions. He heavily relied on the policy laid down in the Resolution dated 15.3.1986 which mandates that the request for appointment of a heir/legal representative on Page 8 C/SCA/12155/2015 ORDER compassionate ground can be considered only if the employee has retired on medical ground. Learned advocate for the respondent submitted that in present case, the petitioner did not retire on medical ground. Instead, the petitioner completed entire tenure of his service and he retired on superannuation upon attaining the age fixed for that purpose. Learned advocate for the respondent submitted that even otherwise, the said policy is not in existence and that therefore, the board cannot grant any appointment to any heir/legal representation of any employee on compassionate ground, in absence of the policy. Learned advocate for the respondent reiterated the details and contentions mentioned in the reply affidavit including the fact that the erstwhile policy is not in operation and that even otherwise, the policy contemplates that the request for appointment on compassionate ground on the basis of resolution dated 15.3.1986 can be granted only where the person has retired on medical ground. He submitted that the Page 9 C/SCA/12155/2015 ORDER respondent's decision of not accepting the petitioner's request/application is in consonance with the fact that the said policy is not in existence and it has been withdrawn/cancelled since long time and also in light of the fact that even otherwise, the petitioner's case does not fall within purview of the erstwhile policy, inasmuch as the petitioner did not retire on medical ground, but he retired from service on attaining age prescribed for superannuation. With such submissions, learned advocate for the respondent company submitted that the petitioner's claim cannot be granted and the petition may be rejected.
7. According to the petitioner, his said demand was made in light of and on the strength of circular dated 25.4.2013 issued by the respondent company. The petitioner has placed on record typed copy of said circular dated 25.4.2013, which reads thus:-
"CIRCULAR Sub: Incorporating serious diseases in Board Page 10 C/SCA/12155/2015 ORDER Resolution No.5283/86 Ref: 1) Old Board Resslution..No.5283/86 dtd.15/3/l986.
2) New Board Resolution No.53.18/894 dtd.16/3/13.
The Board of erstwhile G.E.B. vide above resolution approved as a policy, the dependents of employee 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 verincular along with congestive cardiac failure and enlarge heart with Cardiac asthma, complete paralysis of both upper and lower limbs and failure of both kidney could be considered for employment in the Board subject to availability of vacancy and qualification requirement laid own 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 medical grounds vide Board Resolution No.5283 dtd. 15/3/1985.
(emphasis supplied) Hemiplegia an Paraplegia diseases were also incorporated in above BR vie circular dtd. 29/l/2OlO.
In one of the case referred from subsidiary company to include Spinocerebellar degeneration under the provision of above BR looking to recommendation of CMO committee, CMO, GLVNL has also given medical Opinion to incorporate Spinocerebellar Degeneration diseases along With other serious diseases under the above BR it was ecied to place the proposal for approval of GUVNL Board.
The GUVNL Board, after due deliberation in the meeting held on 40/2013, has accorded as approval vie Board Resolution No. 53.18/804. dtd. 16/3/2013 to incorporate following serious iseases under the erstwhile G.E.B. BR No.5283.
1). End stage liver diseases.
2). Loss of vision of both eyes due to any reason.
3). Irreversible Chronic interstitial Pulmonary Fibrosis Requiring Home Oxygen Therapy / B/pep Ventilator, Supported by CT - chest Report, Chest Disease Specialist Report, Oxygen Salutations Report.
4). Irreversible & Progressive Disorder of CNS like Spinocerebellar Designation and Parkinsonism.
The other terms and conditions of BR No. 5283 dtd. 15/3/1986 remains unchanged.
Sd/(H.B.Patel,IAS) Director (Administrator)"
7.1 Above quoted circular on which the petitioner has placed reliance, makes reference of original board resolution No.5283 which was passed on Page 11 C/SCA/12155/2015 ORDER 15.3.1986. Therefore, it would be appropriate to also take into account the said resolution dated 15.3.1986, which reads thus:-
"Date: 15.03.1986
Item No.A-6 :
Compassionate appointment to Smt. Umaben N. Shah. wife of Shri N.B. Shah, Dy. Supdt.(A/Cs) Gotri, who is suffering from serious and incurable disease.
Resol No. 5283:
The Board approved that as a policy, dependents of employees suffering from terminal diseases like cancer of any part of the body, retinal degenation 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 limbs and failure of both kidneys, could be considered for complement 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 appointment would be considered only if the sick employee is retired on these medical grounds.
The Chairman was authorized to decide cases on merits, including that of Smt. Umaben N. Shah on the above lines."
7.2 On conjoint reading of the board resolution dated 15.3.1986 and the circular dated 25.3.2013, it comes out that the only modification in the original board resolution is by way of addition of certain diseases. However, the principal and qualifying condition prescribed in the board resolution continued (till the Board Resolution came to be withdrawn - rescinded) even after issuance of circular dated 25.4.2013.
Page 12 C/SCA/12155/2015 ORDER 7.3 It is also relevant and necessary to mention at this stage that according to the respondent company, the said circular dated 15.3.1986 alongwith the modification vide circular dated 25.4.2013 is abandoned by the respondent company vide its decision dated 23.6.2015 and from that date onwards, the said policy/decision vide resolution dated 15.6.1986 is no more in force in the respondent company.
8. Before turning to the reply filed by the respondent company, it is relevant to take into account that according to the respondent company there is one more reason for not accepting the petitioner's request.
8.1 It is claimed that the petitioner's daughter got married and married child is not considered "dependent" of the employee and that therefore, even otherwise, the petitioner's demand for appointment on compassionate ground for his married daughter is unjustified and not Page 13 C/SCA/12155/2015 ORDER sustainable.
9. In response to the petition, the respondent has filed reply wherein it is claimed, inter alia, that:-
(a) the petition is not filed by the
daughter.
It is contended that the appointment is sought for the daughter of the petitioner and upon rejection of the demand actually aggrieved person would be the daughter. However, the daughter has not filed the petition and therefore, the petition should not be entertained;
(b) the board resolution No.5283 dated 15.3.1986 prescribes condition that "such application would be considered only if the sick employee is retired on medical ground".
In view of said condition, the petitioner's case or even his daughter's case does not fall within the purview of said resolution and/or the circular dated Page 14 C/SCA/12155/2015 ORDER 25.4.2013;
(c) since June 2016, the said policy is abandoned;
(d) in any case, the petitioner exhausted entire tenure of his service and he retired on superannuation.
Since the petitioner was not incapacitated before superannuation and since he could not establish that he left the service/his service came to premature end on medical ground before actual retirement on attaining age of superannuation, the petitioner's case cannot be considered and the said case would not fall within purview of even erstwhile policy.
9.1 In reply affidavit, the respondent has claimed that:-
"6. The petitioner is seeking benefit of B.R. No.5283/86 for the purpose of seeking compassionate appointment of his daughter Shilpa Joshi (married on 21~9~2007). A copy of said B.R. No.5283/86 is annexed herewith and marked in ANNEXURE-Rl. From the bare perusal of the said BR No.5283/86 it becomes very clear that only in a case if an employee retires on medical ground, then the benefit of compassionate appointment to his/her dependent can be extended. In this case, it is a matter of fact and record that petitioner has served the respondent till the time of his superannuation. The petitioner has been superannuated on reaching age of 60 years. The petitioner has Page 15 C/SCA/12155/2015 ORDER not been made to retire on medical ground. Thus only on the ground that has not been made to retire on medical ground, benefits flowing from B.R. No.5283/86 is not available to the petitioner, this petition its required to be rejected. It is submitted that in fact the petition is totally misconceived in as much. as when the petitioner has not retired on medical ground and petitioner has served until 60 years of age, petitioner cannot claim benefit of B.R. No.5283/86.
7. It is submitted that as held by the Hon'ble Supreme Court in several cases, mode of compassionate appointment cannot be resorted to so as to deprive other legitimate candidates from employment. Compassionate appointment is an exception to the regular appointment and in rare and deserving case it can be resorted to B.R. No.5283/86 came to be issued by then Board with avowed object of helping those employees who could not serve then Board for his full service tenure and because CHE diseases mentioned in the said BR No.5283/86 where compelled to retire on medical. ground. It is not out of place to mention that employee reaching at the fag end of his career cannot misuse this B.R. Which has been in fact issued with avowed object to help needy who are suffering from serious life threatening diseases in the said B.R. No.5283/86.
8. It is not out of place to mention that the said benefit cannot be sought as a matter of right by an employee. It is for the Board to decide as to whether the employee would be entitled to the benefit under the said Circular inasmuch as at the fag end of service, employee might choose to retire on medical ground making provision of employment for his/her dependent. This is certainly not the aim and object of the B.R. No.5283/86. When several eligible candidates are waiting in open market to be appointed in the State Government company, provision of B.R. No.5283/86 cannot be allowed to be misused.
9. In the present case, the petitioner made an application on 13.06.2014 for compassionate appointment under Board B.R. No.5283/86. The Corporation replied to his application on 15.07.2014 conveying the petitioner that after going through disability certificate provided by the petitioner, his case does not fall under B.R. No.5283/86. It is submitted that the petitioner thereafter again preferred application on 28.07.2014. The petitioner was given reply by the respondent on 30.07.2014 which is annexed with the petition at Annexure~F, it has been informed to the petitioner that eye-site of the petitioner is 75% lost and the said disease does not fall within the list enumerated in BQR. No.5283. It was also informed to the petitioner that petitioner has regularly served the Corporation and in fact in the year 2014 no medical reimbursement is taken by the petitioner. It was also mentioned that petitioner is to retire with effect .from 31.08.2014. Thus on several grounds, the same was rejected. It is submitted that immediately within no time the petitioner submitted another certificate wherein it was mentioned that petitioner is suffering from 100% blindness.
10. It is pertinent to note that an employee cannot be allowed to retire only one month prior from the date of his superannuation age while seeking that in his place, his dependent be appointed on account of such retirement. To say less, it would be fraud on the constitution if such an action Page 16 C/SCA/12155/2015 ORDER on part of an employee is countenanced. When the employee is about to retire and 1J1 fact in this case, before a month retirement proposal is forwarded (Hi the ground of medical emergency, Corporation is justified in not heeding to such request. In fact it would be a sheer illegality on part of the Corporation if such a request would have been exceeded. The Corporation being State Government company and it being conscious of the fact that petitioner is about to retire in August, 2014, has disallowed his application from being retired (n1 medical ground and appointment of her daughter.
11. It is submitted that when once again the petitioner requested the respondent. for extending benefits of B.R. No.5283, petitioner was informed that daughter of the petitioner is married, therefore she cannot be said to be dependent on the petitioner. The said decision conveyed on 25.11.2014 .18 under challenge before this Hon'ble Court. It is submitted that as per the policy of the respondent, only dependent of an employee can be allowed to have compassionate appointment. Married daughter cannot be said to be dependent on the petitioner.
12. It is also not out of place to mention that petitioner is having son viz. Viral JOShi, who has passed M.C.A. examination from Kalol Institute of Management. The petitioner is silent with regard to employment of his son. It is submitted that in fact family of the petitioner cannot be said to be in distress since petitioner has already received full retirement benefits and also son of the petitioner having qualification of M.C.A. would have been well~placed. It is also not out of place to mention that petitioner has served until 60 years and has not retired on medical ground. It is within the power of Corporation to allow or not allow an employee on medical ground. Once the employee has served up to his full tenure, B.R. No.5283 has no application at all. Thus even if the case of the petitioner is accepted that married daughter can be said to be dependent, then also the petitioner cannot claim benefit of B.R. No.5283 for the simple reason that petitioner has been superannuated from service and not retired on medical ground.
13. It is submitted that in any view of the matter, married daughter cannot be said to be dependent on the family. Then Board and now the respondent Corporation has taken a policy decision and accordingly benefit is available only to the dependent child and/or spouse. Thus the decision of the Corporation being just and proper, may not be interfered with".
10. I have considered rival submissions and material available on record.
11. When the board resolution is examined, it Page 17 C/SCA/12155/2015 ORDER emerges that the said resolution prescribes the condition/clarification for accepting request for appointment on compassionate ground that the dependent of employee suffering from terminal diseases can be considered in the event "only if the sick employee is retired on these medical grounds".
11.1 Thus, the first condition or eligibility criteria for submitting an application for appointment on compassionate ground for "dependent" is that (a) the employee should have "retired" from service on medical ground and (b) the disease should be one of the terminal diseases mentioned in the resolution dated 15.3.1986.
11.2 Of course, few more ailments came to be impleaded vide above mentioned circular dated 25.4.2013, however, the primary and material condition viz. that the employee must have retired on medical ground subsisted. The said Page 18 C/SCA/12155/2015 ORDER condition / criteria was neither altered nor deleted.
12. In present case, it is an undisputed position that at the time when the petitioner submitted his first application and even at the time when the petitioner submitted / repeated his request by submitting third application, the petitioner was in service, he continued in service. He never retired from service on medical ground. Instead, the petitioner retired from service after exhausting entire tenure till he attained agte for superannuation, on superannuation.
13. Thus, even if this Court does not enter into the dispute as to whether the petitioner's married daughter can be or can not be considered dependent of the petitioner, the fact remains that the petitioner does not fulfill primary and basic and most relevant condition viz. that the employee must have retired on medical ground.
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14. In that view of the matter, the decision of respondent company of not accepting the petitioner's request for his daughter i.e. appointment on compassionate ground for his daughter cannot be faulted.
15. The decision of the respondent company is in consonance with and in line with the primary condition prescribed by the board's resolution.
16. Since the appointment on compassionate ground is not a matter of right much less fundamental or even legal right and it accrues only on account of concession/exception provided by the employer, it cannot be enforced as of matter of right. Such appointment, if it forms part of any policy, can be enforced only within four corners of the policy and on strict interpretation of the terms and conditions prescribed by the policy. Since it is exception to normal rule, it should be constructed strictly.
The Court cannot ask the
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C/SCA/12155/2015 ORDER
employer/establishment to act beyond or dehors
the terms and conditions of the policy.
In present case, when the petitioner does not fall within the purview of board's resolution and when he does not fulfill primary condition, case of his daughter for appointment on compassionate ground could not have been considered, much less granted.
It cannot be overlooked that when the petitioner submitted the application he was in service and he exhausted his entire tenure/he continued in service until the date of his superannuation.
Since the petitioner remained/continued in service, in ordinary course, until the date he attained superannuation (as per the rules), he did not fulfill primary condition and fundamental requirement to avail the benefit under the Board Resolution viz. "the employee must have retired on medical ground". Actually, said condition must be fulfill as on the date when application/request is submitted. Whereas, in Page 21 C/SCA/12155/2015 ORDER present case, the petitioner did not fulfill the said condition even when his service actually came to end inasmuch as he retired on superannuation and not "on medical ground".
Thus, even otherwise, there would not be any justification in claiming appointment for his son or daughter on compassionate ground. 16.1 Such request by the petitioner amounts to abuse of policy and such cases, actually, not only create doubts about the validity or propriety of the policy granting appointment on compassionate ground whereby other eligible candidates in open market are deprived of opportunity of consideration but, it also results into depriving genuine cases of deserving employees because such appointment can be granted subject to availability of vacancies. If the vacancy is filled up by acting dehors the terms of the policy, then, genuine cases would be sacrificed.
Page 22 C/SCA/12155/2015 ORDER For aforesaid reasons and in light of foregoing discussion, there is nothing which would persuade the Court to hold that the demand by the petitioner is justified and/or that the decision by the respondent company is unjustified or contrary to its own policy or perverse or arbitrary.
There is no base or justification to pass direction that the petitioner's daughter be granted appointment on compassionate ground.
The said case is misconceived and unjustified.
Actually, in view of this Court, the petition deserves to be rejected with cost, however, the Court has refrained from passing such order.
Accordingly, the petition is dismissed. Notice is discharged.
(K.M.THAKER, J) KAUSHIK D. CHAUHAN Page 23