Tanvirali Mustakali Saiyed vs Gujarat State Electricity Corporation ... on 18 July, 2016

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Gujarat High Court

Tanvirali Mustakali Saiyed vs Gujarat State Electricity Corporation ... on 18 July, 2016

HC-NIC Page 1 of 11 Created On Sat Jul 23 03:11:30 IST 2016 C/SCA/12850/2000 JUDGMENT 1 By this writ application under Article 226 of the Constitution of India, the petitioner desirous of seeking appointment with the Madhya Gujarat Vij Company Limited, has prayed for the following reliefs:

"7 (A) That Your Lordships be pleased to issue an order and or direction or writ in the nature of certiorari or any other appropriate writ, order or direction quashing and setting aside the order dated 17.12.1998 marked Annexure 'M' to this petition and be pleased further to issue a direction to the respondents to reinstate the petitioner on his original post with all consequential benefits.

(B) Pending admission and final disposal of this petition, Your Lordships be pleased to issue direction to the respondents to reconsider the case of the petitioner in reinstating him on his original post by issuing the appointment order afresh.

(C) Any other relief to which this Hon. Court deems fit and proper in the interest of justice together with costs."

2 I take notice of the fact that this application was adjudicated and decided by a learned Single Judge vide judgment and order dated 30th April 2012. His Lordship was pleased to reject this writ application. The Judgment and order dated 30th April 2012 reads as under:

"1. The present petition under Article 226 is directed against the order dated 17.12.1998 whereby the respondents cancelled the name of the petitioner from the list of dependent candidates considered for employment on compassionate basis under the scheme of respondent for such appointment.

2. Original respondent No.1 Gujarat Electricity Board and respondent No.2 Chief Engineer, Gujarat Electricity Board, Vanakbori Thermal Power Station came to be substituted by impleading Gujarat State Electricity Corporation Limited and Madhya Gujarat Vij Company Limited as respondent Nos.1 and 2 respectively as per order in Civil Application No.2429 of 2008, as the Gujarat Electricity Board came to be converted into different divisions and the petitioner fell under the Madhya Gujarat Vij Company Limited, being newly added respondent No.2.

3. The relevant facts briefly stated are that the petitioner's brother Ishak Ali Mustak Ali who was serving at that time under Respondent No.2 at Page 2 of 11 HC-NIC Page 2 of 11 Created On Sat Jul 23 03:11:30 IST 2016 C/SCA/12850/2000 JUDGMENT Wanakbori Thermal Power Station, died in an accident that took place on 12.05.1992 while he was on duty, by succumbing to 95% burnt injuries suffered in that accident. He was at the relevant time on regular establishment of the respondents. The father of the deceased Ishak, who was also serving as Junior Draftsman at Wanakbori under the Electricity Board, requested the authorities of the Board to give appointment to his another sonthe petitioner, by showing compassion and on sympathetic ground upon his attaining 18 years of age. It appears that the authority of the erstwhile Gujarat Electricity Board by letter dated 05.09.1991 recommended the case of the petitioner for appointment on humanitarian ground to a suitable post as per qualification. The petitioner was accordingly appointed as Junior Assistant (Typist) by order dated 12.10.1995.

3.1 The appointment give to the petitioner was temporary for a period not exceeding three months and was liable to be terminated without assigning any reason. The petitioner was removed from service by Office Order dated 12.01.1996. It appears from record that he was asked by respondents vide Communication dated 22.05.1998 as to whether he was willing to be considered for appointment under the General Standing Order 295 (for the sake of brevity, 'GSO295'), dated 19.12.1981 for appointment on compassionate basis.

3.2 GSO295 in its Para 9 dealing with 'Employment of dependents' outlined the scheme for compassionate appointment framed and adopted by erstwhile Gujarat Electricity Board. It provided inter alia for employment of dependents of employees who die during service upon fulfillment of the conditions mentioned in GSO295 by the aspirants. It appears that name of the petitioner was included in the list of candidates desirous to get compassionate appointment. However, the petitioner's name came to be removed under the impugned order from the seniority list prepared for the purpose.

4. Learned advocate for the petitioner submitted that cancellation of name of the petitioner from the seniority list of the probables for giving appointment on compassionate basis was unjust and arbitrary. It was submitted that the Assistant Secretary of the erstwhile Gujarat Electricity Board had specifically recommended the case of the petitioner for appointment to the suitable post as per his qualification on the humanitarian ground on his becoming major. It was submitted that subsequent cancellation of the appointment once given upon recommendation was arbitrary and unreasonable. Learned advocate for the petitioner also submitted that the petitioner's appointment was made in special facts and was in peculiar circumstances as petitioner's younger brother had died in accident while in service. He submitted that it was not under GSO295 as such and the could not be subjected to the limiting condition in the GSO, and respondents could not have applied the Page 3 of 11 HC-NIC Page 3 of 11 Created On Sat Jul 23 03:11:30 IST 2016 C/SCA/12850/2000 JUDGMENT conditions and criteria of GSO295 in respect of the petitioner's case. The impugned order, according to learned advocate for the petitioner, was unjust, arbitrary and violative of Articles 14 and 16 of the Constitution. He lastly submitted that the petitioner deserved sympathy as the treatment meted out to him was harsh and inequitable. It was submitted that on sympathetic consideration the appointment was made and on similar consideration petitioner's case is required to be viewed.

4.1 Learned advocate for the respondent relied on affidavitinreply and contended that the scheme for providing compassionate appointment was incorporated in GSO295. As per the criteria laid down, such appointment could be given to one who is a child or a spouse of deceased employee. It was not available in the cases where a member of the family of the deceased employee was employed either under the respondent board or was employed elsewhere. It was submitted that as the case of the petitioner did not fall within GSO295, the impugned order was justified.

5. It may be noticed at the outset that order dated 12.10.1995 whereby the petitioner was offered appointment, specifically provided that his appointment was purely on temporary basis and it was not to exceed three months period. The appointment order also contained a condition that the appointment would not confer any right of permanent/regular appointment and was liable to be terminated without notice and without assigning any reason. The petitioner came to be relieved by way of reliving order when the specified period of three months was over. Thus, considering the very nature of the appointment of the petitioner, it was clear that it was temporary and conditional order which did not create or confer any right on the petitioner to continue in service. Considered on the basis of the conditions in the appointment order itself, there was no legal right vested with the petitioner to claim a writ of mandamus for reinstatement in service.

6. As regards the appointment on compassionate ground, the Court cannot be oblivious to the principles of law governing the appointments of this nature. It is well settled by catena of decisions that an appointment on the compassionate ground by its very nature, is an exception to a legal mode for making appointments in the field of public employment. In Umeshkumar Nagpal vs. State of Haryana [(1994) SCC 138], it was held that as of rule the appointments in public service should be made strictly on the basis of open invitation and on merits, and no other mode is permissible. In General Manager, State Bank of India and others vs. Anju Jain [(2008) 8 SCC 475], the Supreme Court observed that the appointment on compassionate basis is a concession and not a right. A person seeking compassionate appointment will not be entitled to it after unreasonable passage of time, because the purpose of such appointment is to help him in negotiating crisis after death of a bread earner family member, as is held in State of Jammu Kashmir and others vs. Saja Page 4 of 11 HC-NIC Page 4 of 11 Created On Sat Jul 23 03:11:30 IST 2016 C/SCA/12850/2000 JUDGMENT Ahmed Mir [(2006) 5 SCC 766].

6.1 In State of Haryana and others vs. Rani Devi and another [(1996) 5 SCC 308 : AIR 1996 SC 2445], the Supreme Court observed that claim for compassionate appointment based on the premise that applicant was dependent on the deceased employee can not be held on the touchstone of Article 14 or 16 of the Constitution. However, such claim may be considered reasonably to meet with sudden crisis. It was observed that therefore it was necessary for the authorities to frame rules or administrative instructions governing the appointment on compassionate ground.

6.2 The right to be appointed on compassionate basis not being a vested right or a right in abstract, it can be claimed only within the four corners and parameters of the scheme or the policy providing for benefit of appointment of such nature. This principle is settled in State Bank of India vs. Somvir Singh [AIR 2007 SC (Supp) 505] in which the Apex Court has observed as under.

"10. There is no dispute whatsoever that the appellantBank is required to consider the request for compassionate appointment only in accordance with the scheme framed by it and no discretion as such left with any of the authorities to make compassionate appointment dehors the scheme. In our considered opinion the claim for compassionate appointment and the right, if any, is traceable only to the scheme, executive instructions, rules etc. framed by the employer in the matter of providing employment on compassionate grounds. There is no right of whatsoever nature to claim compassionate appointment on any ground other than the one, if any, conferred by the employer by way of scheme or instructions as the case may be."

6.3 This Court has also in State of Gujarat and others vs. Kiritkumar Bhikhabhai Vala [2008 (2) GLR 1138] has taken similar view that compassionate appointment can be claimed only under policy or guidelines enacted for that purpose.

7. Given the above set of principles relating to the claim for compassionate appointment, it is only trite that any claim for compassionate appointment has to flow from rules or the scheme or the policy framed for that purpose. A claim for appointment of such kind in order to be a valid, therefore, has to be necessarily backed by the rules or scheme framed for that purpose. De horse or outside the scheme/rules, no such claim could be recognized. A compassionate appointment can not be on the abstract consideration of a humanitarian ground or on a spacious ground of sympathy.





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                   C/SCA/12850/2000                                                        JUDGMENT

8. The contention by learned advocate that as the appointment of the petitioner was given as a special case, sympathy may be shown and the relief may be granted on that basis, is stated to be rejected. It is well settled proposition that sympathy is not a factor permissible to grant relief. Where no legal right was established, sympathy cannot be invoked.

9. In view of the above, in order to claim a compassionate appointment it was indispensable to fall within a clause of GSO295 as it contained the scheme and policy for offering appointment on compassionate basis. Indisputably, the petitioner was not covered under the criteria laid down in that scheme and policy. He was not eligible for compassionate appointment, as he was neither a child nor spouse of the deceased employee. His father was already in employment of the Board. Those were the criteria in the scheme. Therefore, cancellation of his name from the seniority list of the dependents candidates for employment on compassionate basis was in accordance with the policy and the scheme only, and, could not be faulted in law.

10. In view of the above discussion, there is no merit in case of the petitioner. Petition is, therefore, dismissed. Rule is discharged. No order as to costs."

3 The writ applicant thought fit to file a Letters Patent Appeal No.1524 of 2012 challenging the judgment and order passed by the learned Single Judge. The Division Bench, by judgment and order dated 21st April 2014, allowed the appeal and remitted the matter to the Single Judge for fresh consideration. The order passed by the Division Bench reads as under:

"Leave to delete paragraph No. 2 of the affidavit in reply referring to the names of the Judges, is granted.

2. By way of this appeal, the appellant has challenged judgement dated 30.4.2012 passed by learned Single Judge in Special Civil Application No. 12850 of 2000 whereby learned Single Judge has dismissed the writ petition.

3. Learned advocate for the appellant has contended that learned Single Judge has committed error in not considering that the appointment order dated 12.10.1995 is based on compassionate/humanitarian ground and not based on clause GSO 295 which is supported by the communication Page 6 of 11 HC-NIC Page 6 of 11 Created On Sat Jul 23 03:11:30 IST 2016 C/SCA/12850/2000 JUDGMENT dated 3.1.2000 at AnnexureP where it has been specifically stated that appointment of the appellant is not based on clause GSO 295 and he is appointed on specific humanitarian ground. Considering the peculiar facts, an order was passed on 7.12.1998 at page 54 of the petition, to the effect that case of the appellant may be considered on humanitarian ground depending upon his qualification and experience as per Rules. In that view of the matter, learned advocate for the appellant has contended that the order dated 12.1.1996 relieving the appellant from his duty is required to be viewed very seriously. He further contended that learned Single Judge has dismissed the petition on the ground that the appellant is claiming appointment on compassionate ground which falls in clause GSO 295 and therefore, the judgement of learned Single Judge is required to be interfered with.

4. Learned advocate for the respondent Ms. Acharya has supported the order of learned Single Judge and contended that the appointment of the appellant was compassionate and conditional order of giving appointment for three months is passed.

5. We have heard learned advocate Mr. Mishra for the appellant and learned advocate Ms. Acharya for the respondents. Keeping in mind that nowhere in the appointment order dated 12.10.1995 or in relieving order dated 12.1.1996 clause GSO 295 is referred to, learned Single Judge is wrong in dismissing the petition based on clause GSO 295. In that view of the matter, we are of the opinion that the complete premises of the judgement of learned Single Judge is wrongly based on GSO 295. Accordingly, the judgement dated 30.4.2012 is set aside and the matter is remanded to learned Single Judge for fresh consideration. It is made clear that we have not expressed anything on merits of the matter. It will be open to learned Single Judge to decide the appointment order and the relieving order/not extending the period independent of any observations made by this Court."

4 I need not state the facts giving rise to this writ application as they are very much noted in the judgment and order dated 30 th April 2012 referred to above. The short point for my consideration is whether the compassionate appointment of the writ applicant herein was under the G.S.O. 295. The Division Bench, while allowing the appeal, took the view that in the appointment letter dated 12th October 1995 or in the relieving order dated 12th January 1996, there was no reference of Clause G.S.O. 295. In such circumstances, according to the Division Bench, the Single Judge ought not to have proceeded on the footing that Page 7 of 11 HC-NIC Page 7 of 11 Created On Sat Jul 23 03:11:30 IST 2016 C/SCA/12850/2000 JUDGMENT such appointment was based on the G.S.O. 295. I am of the view that once the source of power is known or is detected, then omission to make a reference of that source of power in the order by itself will not make it vulnerable to the complaint that such order has not been passed in accordance with the source of power. The General Standing Order No. 295 framed by the erstwhile Board dated 19th December 1981 so far as the 'employment of dependents' is concerned reads as under:

"9. EMPLOYMENT OF DEPENDENTS:

1. In case of deceased employees. In case an employee dies during service in the Board, one dependant (Child or spouse) would be employed by the Board on any vacant post for which such dependant holds the necessary qualifications/experience. This benefit would not be available in cases where one or more members of the family of the deceased employees is/are already employees within or outside the Board.

2. In case of retired employees. Dependant 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.

EXPLANATION;

Family member means a child only.

Such appointments will be made with the prior approval of the Head Office."

5 Mr. Mishra, the learned counsel appearing for the petitioner vehemently submitted that by no stretch of imagination, it could be said that the appointment of his client on compassionate ground was under

G.S.O. 295. Mr. Mishra tried to fortify his submission on the ground Page 8 of 11 HC-NIC Page 8 of 11 Created On Sat Jul 23 03:11:30 IST 2016 C/SCA/12850/2000 JUDGMENT that it was the Board who had taken the decision to appoint the writ applicant on compassionate ground. According to Mr. Mishra, such decision was in the special facts and circumstances of the case. He would further submit that once the Board took a decision to appoint the writ applicant on compassionate appointment, the same could not have been for a period of three months.

6 On the other hand, Ms. Acharya, the learned counsel appearing for the company, while vehemently opposing this writ application, submitted that the Board might have recommended the case of the writ applicant, but the only source of power for such compassionate appointment is the G.S.O. 295.

7 Although the writ applicant was appointed on compassionate ground, yet his appointment was on temporary basis and initially for a period of three months. The brother of the writ applicant, who was in the service of the Board, got electrocuted in the year 1992 and died. In 1992, the father of the writ applicant was very much in the service of the Board. He retired from the Board in 2001 i.e. almost after a period of six years, and after the demise of the brother of the writ applicant in 1992, made a request to the Board that since his son who was in the service of the Board died, his young son, at the relevant point of time, was aged 15, may be considered for compassionate appointment. Accordingly, after a period of three years i.e. in 1995, when the writ applicant herein attained the age of 18, he was offered the employment on temporary basis for a period of three months, and thereafter, his services came to be terminated, because it was found that his appointment was not in consonance with the G.S.O. 295.

8 The erstwhile Board has its own policy so far as the compassionate appointment is concerned. The compassionate appointment cannot be Page 9 of 11 HC-NIC Page 9 of 11 Created On Sat Jul 23 03:11:30 IST 2016 C/SCA/12850/2000 JUDGMENT claimed as a matter of right. It is always based upon the policy, be it that of the State Government or an instrumentality of a 'State' or any statutory autonomous body.

9 At this stage, apropos to my suggestion, Ms. Acharya, the learned counsel appearing for the company, after taking instructions from the officer who is present in the Court, states that let the writ applicant apply a fresh for compassionate appointment. According to Ms. Acharya, since the father of the writ applicant has retired long time back i.e. way back in the year 2001, the G.S.O. 295 probably may not come in his way now and the Board will take a fresh decision in this regard.

10 Considering the fact that the brother of the writ applicant died while in service of the company at a very young age and the father also retired in the year 2001, the Board may consider the case of the writ applicant sympathetically having regard to the peculiar facts of the case.

11 The writ applicant shall apply a fresh with all the necessary details within a period of fifteen days from today. The Board, on receipt of an appropriate application from the writ applicant, shall consider the same in accordance with its policy and take an appropriate decision in accordance with law within a period of four weeks thereafter and inform about the same to the writ applicant. While deciding the application, a little humane approach will be necessary, and more particularly, keeping in mind that the father served with the company well for a long time and the young brother of the writ applicant while in service died on account of electrocution. I hope and trust that these observations are sufficient for the Board to take an appropriate decision sympathetically.

12 With the above, this writ application is disposed of. Direct service is permitted.




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                                                                       (J.B.PARDIWALA, J.)
         chandresh




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