Gujarat High Court
Somabhai Lalabhai Vankar & vs State Of Gujarat & 2 on 5 April, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/13683/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 13683 of 2014
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SOMABHAI LALABHAI VANKAR & 1....Petitioner(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
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Appearance:
MR VIRAT G POPAT, ADVOCATE for the Petitioner(s) No. 1 - 2
MR KM ANTANI, AGP for the Respondent(s) No. 1
MR PREMAL R JOSHI, ADVOCATE for the Respondent(s) No. 3
NOTICE SERVED for the Respondent(s) No. 2
NOTICE SERVED BY DS for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 05/04/2016
ORAL ORDER
1. By this writapplication under Article 226 of the Constitution of India, the petitioners - father and son have prayed for the following reliefs: 8(A) Allow the present petition;
(B) To issue a writ of mandamus and/or any other appropriate writ, order or direction directing concerned respondent to grant compassionate appointment to the petitioner No.2 pursuant to the applications dated 30.05.2014 and 21.01.2014.
(C) To issue a writ of mandamus and/or any other appropriate writ, order or direction quashing and setting aside the communication/order dated 04.04.2014 issued by respondent No.3 (D) Pending admission, hearing and final disposal of this petition, be pleased to direct the respondent authorities to reconsider the application of petitioner no.2 for appointment of compassionate ground;
Page 1 of 10HC-NIC Page 1 of 10 Created On Tue Apr 12 00:13:21 IST 2016 C/SCA/13683/2014 ORDER (E) To pass such other and further order(s) as may be deemed just and proper in the circumstances of the case.
2. The facts of this case may be summarized as under: 2.1 The father came to be appointed as the Junior Assistant with the Gujarat Electricity Board by order dated 11.05.1978. He joined the service with the Board on 26.04.1979. He came to be promoted thereafter as a Senior Assistant. After putting in 34 years of service, he retired on 05.08.2013. It appears that just before his retirement, he suffered a massive cardiovascular stroke resulting in brain hemorrhage. On account of brain hemorrhage, he sustained 75% of the disability. The petitioner no.2 happens to be his son.
2.2 Due to ailment, the petitioner no.1 stopped attending the office. In such circumstances, he preferred an application dated 21.01.2014 with a prayer that his son may be appointed on compassionate ground in his place.
2.3 The application came to be rejected vide communication dated 04.04.2014. It appears that once again, he requested the authorities to reconsider the matter and on reconsideration, once again the claim was rejected.
2.4 Hence, this petition.
3. Mr. Popat, the learned counsel appearing for the petitioners submitted that the petitioner no.1 has retired from service. Just before his retirement, he was unable to work on account of the ailment and therefore, in such circumstances, he requested the authorities to absorb Page 2 of 10 HC-NIC Page 2 of 10 Created On Tue Apr 12 00:13:21 IST 2016 C/SCA/13683/2014 ORDER or rather appoint his son on compassionate ground. According to Mr. Popat, the request ought to have been accepted by the respondent no.2.
4. On the other hand, this writapplication has been vehemently opposed by Mr. Premal Joshi, the learned counsel appearing for the respondent no.3 and Mr. Antani, the learned AGP for the respondent no.1 State of Gujarat.
5. Mr. Joshi submitted that no case is made out for grant of any relief. Mr. Joshi has placed reliance on the following averments made in the affidavitin reply filed on behalf of the respondent no.3: "4. I state and submit that petitioner no.1 is working as Senior Assistant with deponent company. He requested vide his application dated 21/1/2014 [AnnexureC] [Page17] to the Superintending Engineer, Baroda City Circle for compassionate appointment to his son, Shri Bhavik Somabhai Sutariya on the ground that he is suffering from a serious disease.
5. I state and submit that compassionate appointment to the dependents of employees who are suffering from serious diseases are considered under BR 5283 dtd.15/3/1986 and subsequent amendment vide Circular No.GUVNL/HR/Hemiplegia/393 dtd.29/1/2010 subject to resignation of employee concerned and cases of dependents of deceased employees are considered under GSO 295.
6. Accordingly, the competent authority of the deponent company has examined the case of the petitioner in view of conditions of board resolution no.5283 dtd.15/3/1986 and circular No.GUVNL/HR/Hemiplegia/393 dtd.29/1/2010. The copies of board resolution no.5283 dtd.15/3/1986 circular No.GUVNL/HR/ Hemiplegia/393 dtd.29/1/2010 are annexed here with and marked as Annexure I and II respectively.
7. I state and submit that the competent authority has rejected the case of the petitioner considering source of income in family of Shri Vankar i.e. one of his sons Shri Mayurbhai Somabhai Sutariya is working with Police Department and another son Shri Hituabhai Somabhai Sutariya is serving with private company at Dahej. These facts were stated by Shri S.L. Vankar in his application dated 21/1/2014 and the details were also revealed during investigation Page 3 of 10 HC-NIC Page 3 of 10 Created On Tue Apr 12 00:13:21 IST 2016 C/SCA/13683/2014 ORDER carried out by the deponent company. A copy of the report dated 7/1/2014 on investigation is annexed here with and marked as AnnexureIII.
8. I state and submit that any case of compassionate appointment under BR no.5283 is to be considered subject to the condition that the family has no other source of income.
9. I state and submit that the petitioner was intimated vide communication dated 4/4/2014 that his request for compassionate appointment is rejected. Shri Vankar again made the presentation dated 30/5/2014, wherein he requested for considering compassionate appointment for his son as per GSO 295.
It is submitted that the compassionate appointment under GSO 295 is applicable only in case of employee who passes away during the services of the company and no other source of income in the family is available. The said GSO 295 would not be applicable in case of the petitioner since he is alive and working as bonafide employee of the company.
10. I state and submit that the representation of the petitioner dated 30/5/2014 cannot be considered since the provisions of GSO 295 is not applicable in case of the petitioner. As stated earlier GSO 295 is applicable for compassionate appointment dependents of deceased employees. Further, the said representation dated 30/5/2014 is made to Gujarat Urja Vikas Nigam Limited, the parent company of MGVCL. The deponent company has not received the said representation and therefore suitable reply could not be given to the petitioner for the same. However, vide letter dated 4/4/2014 addressed by the office of superintending engineer, city circle, Vadodara the petitioner has been conveyed that his request for compassionate appointment for his son is regretted under BR 5283.
11. I state and submit that the case of Shri Vankar is decided by the competent authority in view of conditions of BR 5283. Since the petitioner is not fulfilling conditions of BR 5283 and therefore his son is not entitled for compassionate appointment under BR 5283. Therefore, the decision rejecting compassionate appointment by deponent company to the son of the petitioner is in accordance with prevailing rules under BR 5283."
6. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether any case is made out for grant of the Page 4 of 10 HC-NIC Page 4 of 10 Created On Tue Apr 12 00:13:21 IST 2016 C/SCA/13683/2014 ORDER reliefs prayed for in this writapplication.
7. This petition is unique in the sense that ordinarily, the compassionate appointment is prayed for on the demise of the only earning member of the family. In the case in hand, the father stopped working just some time before he attained superannuation on account of the ailment referred to above. At no point of time, he resigned from service. The prayer for compassionate appointment of his son came at a point of time, when the father was actually in service.
8. Let me look into the Policy, dated 19.12.1981 on which the reliance has been placed. The Policy reads as under: "9 Employment of Dependants:
1. In case of deceased employees. In case an employee dies during service in the Board, one dependent (child or spouse) would be employed by the Board on any vacant post for which such dependent holds the necessary qualifications/ experience. This benefit would not be available in cases where one or more members of the family of the deceased employee is/are already employed within or outside the Board.
2. In case of retired employees, Dependent children of retired employees who apply for posts advertised by the Board, will be given preference over other applicants having equal qualifications/ experience.
This benefit would not be available in cases where one or more members of the family of the deceased employee is/are already employed within or outside the Board.
In both the above cases of recruitment, in relaxation of the maximum age prescribed, the maximum age limit would be considered to be 40 years of age."
9. It appears that in the case of one identically situated employee who was also ailing, a Resolution was passed which reads as under: Page 5 of 10 HC-NIC Page 5 of 10 Created On Tue Apr 12 00:13:21 IST 2016 C/SCA/13683/2014 ORDER Resolution No.5283:
The board approved that as a Policy, dependents of employees suffering from terminal diseases like career of any part of the body, ratinal degeneration of both eyes, loss of vision of both eyes due to brain disease, complete heart failure of both ventricular along with cardiac failure and enlarged heat with cardiac asthma, complete paralysis of both upper and lower limbs 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 Resolution appears to be in the form of the Policy.
10. The plain reading of the Resolution dated 15.03.1986 makes it very clear that the appointment would be considered only if the sick employee has retired on medical grounds. Atleast, till the point of time when the father was in service, there was no question of appointing the son in his place. The following retiral benefits have been paid to the petitioner no.1.
1 Gratuity Rs.6,96,086/ 2 C.P.F. Rs.20,75,286/ 3 Pension Rs.1,949/ p.m. 4 Board's Scheme Rs.69,403/
11. Let me assume for the moment that the principles as regards the compassionate appointment are applicable in the case in hand.
12. 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 Page 6 of 10 HC-NIC Page 6 of 10 Created On Tue Apr 12 00:13:21 IST 2016 C/SCA/13683/2014 ORDER 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 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.
Page 7 of 10HC-NIC Page 7 of 10 Created On Tue Apr 12 00:13:21 IST 2016 C/SCA/13683/2014 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, 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 Page 8 of 10 HC-NIC Page 8 of 10 Created On Tue Apr 12 00:13:21 IST 2016 C/SCA/13683/2014 ORDER 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 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.
13. In my view, no case is made out for the relief prayed for in this Page 9 of 10 HC-NIC Page 9 of 10 Created On Tue Apr 12 00:13:21 IST 2016 C/SCA/13683/2014 ORDER writapplication. This application, therefore, fails and is hereby rejected.
14. In future, if any vacancy arises or any regular recruitment process is undertaken, it will be open for the petitioner No.2 to apply in terms of the Policy of the respondent No.3. In Future, pursuant to any advertisement, if he applies, he may be given the benefit of the General Standing Order No.295.
(J.B.PARDIWALA, J.) aruna Page 10 of 10 HC-NIC Page 10 of 10 Created On Tue Apr 12 00:13:21 IST 2016