Gujarat High Court
Sureshbhai Somabhai Nayani vs State Of Gujarat Through Secretary & on 5 July, 2016
Author: Abhilasha Kumari
Bench: Abhilasha Kumari
C/SCA/945/2011 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 945 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of No
the judgment ?
4 Whether this case involves a substantial question of No
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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SURESHBHAI SOMABHAI NAYANI....Petitioner(s)
Versus
STATE OF GUJARAT THROUGH SECRETARY & 1....Respondent(s)
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Appearance:
MR ANAND B GOGIA, ADVOCATE for the Petitioner(s) No. 1
MR RB GOGIA, ADVOCATE for the Petitioner(s) No. 1
MR NIRAJ ASHAR, ASSISTANT GOVERNMENT PLEADER for Respondent(s) No. 1
MR HS MUNSHAW, ADVOCATE for Respondent(s) No. 2
RULE SERVED for the Respondent(s) No. 1 - 2
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CORAM: HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
Date : 05/07/2016
ORAL JUDGMENT
1. By preferring this petition under Articles 226 and 227 of the Constitution of India, the Page 1 of 21 HC-NIC Page 1 of 21 Created On Tue Jul 12 00:11:01 IST 2016 C/SCA/945/2011 JUDGMENT petitioner has, inter alia, prayed that the impugned communication dated 03.04.2008 issued by respondent No.1 State of Gujarat, whereby the application of the petitioner for the grant of compassionate appointment has been rejected, be quashed and set aside.
2. Briefly stated, the facts of the case are that Smt.Rekhaben Rameshchandra Kabira, the wife of the petitioner, was appointed as a Vidya Sahayak by the order dated 23.01.2001, on a fixed monthly pay of Rs.2,500/. By an order dated 29.03.2006, she was placed in the regular pay scale of Rs.40001006000. Unfortunately, on 11.08.2007, she died in harness by drowning while crossing a culvert on her way to school on a special assignment. Shortly thereafter, the petitioner made an application dated 10.09.2007 to the first respondent, requesting to be granted appointment on compassionate grounds. This application has been rejected by the above mentioned order. Aggrieved thereby, the petitioner has approached this Court.
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3. It is submitted by Mr.Anand B. Gogia, learned advocate for the petitioner, that the reason for the rejection of the petitioner's application as reflected in the impugned order is that, the deceased had not completed five years of regular service. The petitioner, therefore, is not entitled to be granted compassionate appointment as per the Government Resolution dated 10.03.2000. It is submitted that this reason is incorrect, as the deceased was appointed as Vidya Sahayak after following the regular procedure for appointment. The appointment of a Vidya Sahayak is always on a vacant post which can be filled up only after following the prescribed procedure. It cannot be said to be an irregular appointment. Learned counsel for the petitioner has submitted that as per the Bombay Primary Education Act, 1947, as well, especially, Section 13(2), clauses (d) and (dd) thereof, the post of Vidya Sahayak is considered as a statutory post, therefore, it cannot be said that the deceased was not a regularly appointed teacher.
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4. Learned counsel for the petitioner has drawn the attention of the Court to the Government Resolution dated 16.02.2006, by submitting that condition No.18 in the said Resolution states that those persons appointed on fixed pay basis by following the proper procedure who have completed five years' service would be considered as regular. On the basis of this stipulation, it is urged that the appointment of the deceased cannot be said to be irregular and has to be considered as regular with effect from the initial date of her appointment. That the wife of the petitioner was appointed on 23.01.2001, and till her death on 11.08.2007, she had completed five years of regular service. Hence, the petitioner is entitled for appointment on compassionate grounds. The reason for rejection, as reflected in the impugned order, is untenable.
5. Opposing the petition, Mr.Niraj Ashar, learned Assistant Government Pleader appearing for the State Government, has submitted that the initial appointment of the petitioner as a Vidya Sahayak Page 4 of 21 HC-NIC Page 4 of 21 Created On Tue Jul 12 00:11:01 IST 2016 C/SCA/945/2011 JUDGMENT on 23.01.2001, was on temporary / adhoc basis, as is clear from the said order. She was appointed on a fixed monthly pay of Rs.2,500/. The appointment was governed by certain conditions stipulated in the order itself. It is submitted that Condition No.5 clearly states that the appointment is on a purely temporary basis. Condition No.3 in the appointment order also stipulates that the deceased would not be entitled to increments, dearness allowance and the benefits of the Pay Commissions. By reading Condition No.7, it is submitted by the learned Assistant Government Pleader that this condition specifically debars an employee receiving fixed pay from being granted any financial benefits such as exgratia payment or compassionate appointment, in the event that the employee passes away during service. It is submitted that the deceased had accepted the appointment on the above conditions, which is evident from her signature at the bottom of the order.
6. Learned Assistant Government Pleader further contends that the deceased continued to work on Page 5 of 21 HC-NIC Page 5 of 21 Created On Tue Jul 12 00:11:01 IST 2016 C/SCA/945/2011 JUDGMENT fixed pay from 23.01.2001 upto the passing of the order dated 29.03.2006, that is, after the completion of five years. It is only on 29.03.2006 that the services of the deceased were regularised by placing her in the regular payscale. It is emphatically submitted that the condition precedent for appointment on compassionate grounds as per the Government Resolution dated 10.03.2000, is that the employee should have completed five years of regular service. The wife of the petitioner passed away only after one year five months and eighteen days being placed in the regular scale. The condition of having five years' regular service was not fulfilled, therefore, the petitioner cannot be granted appointment on compassionate grounds.
7. With regard to the Government Resolution dated 16.02.2006 relied upon by the learned counsel for the petitioner it is submitted that, this Resolution would not be applicable to the case of the petitioner as it has been issued by the Finance Department with the sole objective of Page 6 of 21 HC-NIC Page 6 of 21 Created On Tue Jul 12 00:11:01 IST 2016 C/SCA/945/2011 JUDGMENT curbing Government expenditure. Condition No.18 in the said Government Resolution, which is relied upon by the petitioner, is in relation to the roster point and the eligibility of persons who have been appointed on fixed pay and have completed five years as such, to be considered against reserved and backlog posts. In any case, the said Government Resolution is prospective in nature and cannot be given retrospective effect so as to govern the appointment of the deceased, which was made before the said Government Resolution came into force.
8. Learned Assistant Government Pleader further submits that the aim and object of the Government Resolution dated 10.03.2000 is to provide succour to the family of the deceased employee on the death of the employee, if the family does not have any means of livelihood and is in a penurious condition. About nine years have elapsed since the death of the petitioner's wife and it cannot be said that the petitioner has been unable to survive. Moreover, there is no averment in the petition to the effect that Page 7 of 21 HC-NIC Page 7 of 21 Created On Tue Jul 12 00:11:01 IST 2016 C/SCA/945/2011 JUDGMENT the petitioner has no source of income or is in a penurious condition.
9. On the above grounds, it is submitted that the petition be rejected.
10. Mr.H.S.Munshaw, learned advocate for respondent No.2, has submitted that he would adopt the arguments advanced on behalf of the State Government.
11. In rejoinder, learned counsel for the petitioner has reiterated the submissions advanced by him earlier, emphasising the aspect that the deceased was appointed by a wellrecognized procedure of recruitment under the statutory rules and her selection and appointment as Vidya Sahayak would be considered as being regular from the very beginning. It is submitted that it has been averred in Paragraph 2.2 of the petition that the petitioner belongs to the Schedule Caste and has two minor children. The family, including the petitioner, were dependent on the salary of the deceased.
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12. This Court has heard learned counsel for the respective parties, perused the averments made in the petition, contents of the impugned order and the affidavitinreply filed by the respondentState and the other documents on record.
13. There is no dispute regarding the factual aspects of the matter. The only issue that arises for adjudication is whether, on the date of her death, the deceased had completed five years of regular service, or not, so as to make the petitioner eligible for the grant of compassionate appointment under the Government Resolution dated 10.03.2000.
14. The appointment order of the deceased dated 23.01.2001, is at AnnexureB to the petition. The copy of order as annexed by the petitioner does not appear to be complete as the second page containing the conditions of appointment is missing. The same order, in its complete form, is annexed as AnnexureR2 to the affidavitin reply filed by the respondent. Those conditions Page 9 of 21 HC-NIC Page 9 of 21 Created On Tue Jul 12 00:11:01 IST 2016 C/SCA/945/2011 JUDGMENT are available in the complete order at Annexure R2, at running pages 104105 of the paperbook.
15. The deceased was appointed as Vidya Sahayak on a fixed monthly pay of Rs.2,500/ subject to certain conditions. The appointment of the deceased was, therefore, governed by the conditions of her appointment which were accepted by her. Condition No.5 clearly stipulates that the appointment is temporary in nature. Condition No.1 states that the first two years of the petitioner's service would be probationary in nature and after five years of service on fixed pay, the appointment would be regularized. Condition No.3 further indicates that the deceased would get a fixed monthly salary of Rs.2,500/ but would not be entitled to increments, dearness allowances or any other allowance including the benefits of the Pay Commissions. The most important condition in the appointment order is condition No.7, which stipulates that if the person appointed on fixed pay dies during service, the family members of the deceased would not be eligible for any Page 10 of 21 HC-NIC Page 10 of 21 Created On Tue Jul 12 00:11:01 IST 2016 C/SCA/945/2011 JUDGMENT financial benefits such as exgratia payment or appointment on compassionate grounds and other such benefits. The conditions have been accepted by the deceased, who has appended her signature on the said order.
16. From the above, it is clear that the initial appointment of the deceased was on a temporary basis on a fixed pay of Rs.2,500/ per month which, as per the conditions of the appointment did not entitle her to any financial benefits. In the eventuality of her death, her dependents would not be entitled to seek financial benefits or appointment on compassionate grounds.
17. After the completion of five years of service on temporary basis in the fixed pay of Rs.2,500/, the services of the deceased were placed in the regular payscale of Rs.40001006000, vide order dated 29.03.2006. There were certain conditions attached to this order, as well. Condition No.9 indicates that after the deceased completes five years of service satisfactorily, she would be entitled to be brought under the Page 11 of 21 HC-NIC Page 11 of 21 Created On Tue Jul 12 00:11:01 IST 2016 C/SCA/945/2011 JUDGMENT regular establishment of the District Primary Education Committee. Condition No.10 in the said order stipulates that the deceased will be brought under the regular establishment of the District Primary Education Committee only upon the entry containing all the details of her service, from the date of her appointment, being made and an endorsement regarding her inclusion on the establishment of the District Primary Education Committee, being made in her service book. It is clear from this order that the services of the deceased were placed in the regular payscale with effect from 29.03.2006. However, she would have had to complete another five years of service as such, to be brought under the regular establishment of the District Primary Education Committee for an endorsement to be made in her service book and for her dependents to be entitled for financial benefits or compassionate appointment, in case of her death in harness.
18. The claim of the petitioner is for appointment on compassionate grounds as it is his case that Page 12 of 21 HC-NIC Page 12 of 21 Created On Tue Jul 12 00:11:01 IST 2016 C/SCA/945/2011 JUDGMENT the services of the deceased were regular from the initial appointment on temporary basis and as she had completed five years of service before she died, he is eligible to be granted appointment on compassionate grounds.
19. According to learned counsel for the petitioner, as per the subsequent Government Resolution dated 16.02.2006, the period of service rendered by the deceased on fixed pay should be treated as on the regular establishment, there is no impediment in granting appointment to the petitioner. In order to test the veracity of this submission, reference may be made to the Government Resolution dated 10.03.2000, issued by the General Administration Department of the State Government. It is, basically, a Resolution that governs appointments on compassionate grounds. Condition No.2(2) of the said Government Resolution stipulates that a family member of a deceased employee working on a ClassIII or ClassIV post would be eligible for appointment on compassionate grounds, if the deceased had been appointed regularly and has Page 13 of 21 HC-NIC Page 13 of 21 Created On Tue Jul 12 00:11:01 IST 2016 C/SCA/945/2011 JUDGMENT completed a minimum of five years' service in the regular cadre. The emphasis in this condition is upon the requirement that the appointment of the employee should have been made by following the regular procedure and that the employee should have completed a minimum of five years' service in the regular cadre. It is not the case of the respondents that the appointment of the deceased has been made in a irregular manner or through the backdoor, as is apparently being misconstrued by the learned advocate for the petitioner. The objection of the respondents is to the effect that after having been placed in the regular payscale with effect from 29.03.2006, the deceased was unable to work for five years in the regular cadre because of her death. She could complete only one year five months and eighteen days service, whereas she would have had to complete five years after 29.03.2006, for the petitioner to be eligible for appointment on compassionate grounds.
20. If the Government Resolution dated 16.02.2006, Page 14 of 21 HC-NIC Page 14 of 21 Created On Tue Jul 12 00:11:01 IST 2016 C/SCA/945/2011 JUDGMENT on which heavy reliance is placed by the learned advocate for the petitioner, is perused, it emerges that this Resolution has been issued by the Finance Department of the State Government with the sole aim and object of curbing government expenditure and decreasing the burden on the treasury. This is clear from the preamble of the Resolution and from the contents of the Resolution, itself. This Resolution is prospective in nature and would not apply retrospectively to the appointment of the deceased which was made much before the Resolution came into existence. In any case, Condition No.11 thereof indicates that those ClassIII and IV employees of the Government who are working on fixed pay, shall not be governed by the Gujarat Civil Services Classification and Recruitment (General) Rules, 1967, the Gujarat Civil Services (Discipline and Appeal) Rules, 1971 and the Gujarat Civil Service (Conduct) Rules, 1971. This clearly indicates that the ClassIII and IV employees working on a fixed salary are not regular employees who can be Page 15 of 21 HC-NIC Page 15 of 21 Created On Tue Jul 12 00:11:01 IST 2016 C/SCA/945/2011 JUDGMENT brought under the purview of the above Rules. The policy of the State Government for the grant of compassionate appointment is applicable only to employees in the regular scale and on the regular establishment who have completed five years' service as such. The initial service on fixed pay cannot be clubbed with the service rendered after bring brought in the regular pay scale to make up the deficit in the number of years of service as required by the policy.
21. Condition No.18, on which much reliance is placed, stipulates that since temporary appointments in monthly fixed pay are to be made by following proper procedure and since the employees appointed under this Scheme who have completed five years on fixed monthly pay will be placed in the regular payscale and the recruitment would be a regular one, therefore, the Scheme would be applicable even to the appointments made against the reserved and backlog posts, as per the roster points. It appears that learned counsel for the petitioner is misreading and misconstruing this condition Page 16 of 21 HC-NIC Page 16 of 21 Created On Tue Jul 12 00:11:01 IST 2016 C/SCA/945/2011 JUDGMENT by submitting that it means that the temporary appointment of employees who are appointed on fixed pay should be considered as if they are in the regular scale from the very beginning. This manner of construction, in the view of this Court, is not correct. The said condition only means that the appointments, even though made on fixed pay should have been made by following the regular procedure. However, that does not mean that such employees are automatically brought on the regular cadre from the very beginning even though the appointment order itself states that the appointment is on a temporary basis and it is only after five years' service in the regular pay scale that the employee would be brought under the regular establishment.
22. That the initial appointment of the deceased on fixed pay was temporary in nature, is very clear from the appointment order. When the deceased was brought in the regular payscale on 29.03.2006, it was stipulated in the said order that she would have to complete five years of service in the regular payscale in order to be Page 17 of 21 HC-NIC Page 17 of 21 Created On Tue Jul 12 00:11:01 IST 2016 C/SCA/945/2011 JUDGMENT brought on the regular establishment of the District Primary Education Committee. The appointment order conferring the regular scale upon the deceased cannot be set at naught as it is the order of appointment that would govern the service conditions and not the Government Resolution dated 16.02.2006 which, in any case, does not appear to have any relevance insofar as the appointment of the deceased is concerned.
23. As stated earlier, the said Government Resolution has been issued in the year 2006, whereas the deceased was appointed in the year 2001. The Government Resolution dated 16.02.2006 cannot be said to have retrospective effect even though it is held to be inapplicable in the case of the deceased.
24. A submission has been advanced on behalf of the petitioner that the conditions governing the initial appointment order of the deceased, as reflected in the order dated 23.01.2001, are not statutory in nature, therefore, they cannot be made applicable. The Court is unable to agree Page 18 of 21 HC-NIC Page 18 of 21 Created On Tue Jul 12 00:11:01 IST 2016 C/SCA/945/2011 JUDGMENT with this submission for the reason that, the order of appointment lays down the service conditions the deceased. It is an executive order as are all appointment orders. If the submission of learned counsel for the petitioner is taken to its logical end, it would mean that the entire service record of the deceased would have no value, which cannot be the intention while making this submission. On one hand, it is submitted that the appointment order of the deceased does not have statutory force whereas, on the other, reliance is placed upon the Government Resolution dated 16.02.2006, which is also in the nature of executive instructions.
25. The Government Resolution dated 10.03.2000, with regard to compassionate appointment, is a policy decision taken by the State Government with the intention of providing financial aid and succour to the dependents of the deceased employee, who suddenly find themselves without any financial help or livelihood after the death of the breadwinner. It is a settled position of law that there is no inherent or legal right vested Page 19 of 21 HC-NIC Page 19 of 21 Created On Tue Jul 12 00:11:01 IST 2016 C/SCA/945/2011 JUDGMENT in any person to demand appointment on compassionate grounds. Such an appointment is not a matter of right but is governed by the policy or scheme framed by the employer as in vogue, at the relevant point of time. The policy in vogue that covers the case of the deceased is the Government Resolution dated 10.03.2000, which clearly stipulates that the appointment of the deceased employee ought to have been made in a regular manner and the employee should have completed five years of regular service at the time of death, so as to entitle the dependents to apply for compassionate appointment. In the present case, though the initial appointment of the petitioner as temporary Vidya Sahayak on fixed pay was made by following the regular procedure, she did not complete five years of service in the regular cadre, as is the condition precedent in Clause 2(2) of the Government Resolution dated 10.03.2000. The submission on behalf of the petitioner that the deceased was regularly appointed from the very beginning and her service on fixed pay be Page 20 of 21 HC-NIC Page 20 of 21 Created On Tue Jul 12 00:11:01 IST 2016 C/SCA/945/2011 JUDGMENT counted as five years of regular service, cannot be accepted as it is contrary to the policy of the State Government.
26. On consideration of the above issues and in view of the above discussion, this Court is of the view that no illegality or irregularity has been committed by the State Government in rejecting the application of the petitioner. The impugned order, therefore, stands.
27. The petition fails and is rejected. Rule is discharged. There shall be no orders as to costs.
(SMT. ABHILASHA KUMARI, J.) sunil Page 21 of 21 HC-NIC Page 21 of 21 Created On Tue Jul 12 00:11:01 IST 2016