Gujarat High Court
Ushaben Wd/O Decd. Kanaiyalal ... vs State Of Gujarat & 3 on 22 February, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/2262/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 2262 of 2016
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USHABEN WD/O DECD. KANAIYALAL JIVRAMBHAI BHATT &
1....Petitioner(s)
Versus
STATE OF GUJARAT & 3....Respondent(s)
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Appearance:
MR NV GANDHI, ADVOCATE for the Petitioner(s) No. 1 - 2
MR. ANTANI, ASST. GOVT. PLEADER for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 22/02/2016
ORAL ORDER
1. By this writ application under Article 226 of the Constitution of India, the petitioners, mother and son, have prayed for the following reliefs;
"(A) Your Lordships may be pleased to admit and allow this petition.
(B) Your Lordships may be pleased to issue appropriate writ of certiorari or any other appropriate writ order or directions and be pleased to direct the Respondents particularly Respondent No.2 to reconsider its decision dated 28.6.2010 and be further pleased to direct the Respondent No.2 to appoint the petitioner no.2 on compensate ground or in the alternative direct the respondents to pay lump sum compensation in favour of petitioners as per the G.R. Dtd. 5.7.2011.
(C ) Your Lordships may be pleased to direct the respondents to reconsider the case of the petitioners, pending hearing and final disposal of this petition;
Page 1 of 7HC-NIC Page 1 of 7 Created On Sun Feb 28 05:02:44 IST 2016 C/SCA/2262/2016 ORDER (D) Your Lordships may be pleased to grant ad-interim relief in terms of para-C above;
(E) Your Lordships may be pleased to grant any other and further relief under the facts and circumstances of this case."
2. It appears that the husband of the petitioner No.1 and the father of the petitioner No.2 was serving as a Tracer with the respondent No.3. He passed away on 10.9.2005 while in service after putting in 25 years of service. On his demise, the petitioner No.2, i.e., the son applied for compassionate appointment. On 18th August, 2006, the request of compassionate appointment was declined. It appears that in the year 2006, the petitioner No.2 was aged about 15 years.
3. After a period of five years, again, the petitioner No.2 applied for being appointed on compassionate ground, or for a lumpsum amount by way of compensation in accordance with the policy of the State Government.
4. The authorities, once again, rejected the application filed by the petitioner No.2.
5. The petitioner No.1, being the widow, has received Rs.5 Lac towards the retiral benefits which includes leave encashment, insurance, gratuity etc. She is drawing family pension of Rs. 8,000/- per month. Almost 10 years have passed since the demise of the father. In such circumstances, I see no good reason to consider the claim of the petitioner No.2 for being appointed on compassionate ground, or even for a lumpsum compensation.
Page 2 of 7HC-NIC Page 2 of 7 Created On Sun Feb 28 05:02:44 IST 2016 C/SCA/2262/2016 ORDER "By now it is well-settled that the compassionate appointment cannot be claimed as a matter of right as it is not a vested right. The philosophy and the object underlying the compassionate appointment is to provide immediate relief and succour to the bereaved family who would get into difficulties on account of the loss of the only earning member in the family. The father of the petitioner had passed away way back in the year 2006. Of course, it is true that there is a policy of the State Government to provide for compassionate appointment, and if an application is filed, the concerned authority has to look into the same in accordance with the policy. For the time being I am ready to accept the submission of Mr.Joshi that the date on which his client had applied for compassionate appointment, there was no requirement of clearing the S.S.C. Exam, but at the same time, I should also be not oblivious of the fact that the petitioner has come up with this application under Article 226 of the Constitution of India and this Court may refuse to grant any equitable relief, even if any action is found to be not in accordance with law. I am taking this view because after a period of almost 9 years if the son is given compassionate appointment, then the very object of this particular policy would get defeated.
I may quote with profit a decision of the Supreme Court in the case of MGB Gramin Bank v. Chakrawarti Singh, AIR 2013 SC 3365. I may quote paragraphs 5 to 13 of the decision as under :
5. Every appointment to public office must be made by strictly adhering to the mandatory requirements of Articles 14 and 16 of the Constitution. An exception by providing employment on compassionate grounds has been carved out in order to remove the financial constraints on the bereaved family, which has lost its bread-earner.
Mere death of a Government employee in harness does not entitle the family to claim compassionate employment. The Competent Authority has to examine the financial condition of the family of the deceased employee and it is only if it is satisfied that without providing employment, the family will not be able to meet the crisis, that a job is to be Page 3 of 7 HC-NIC Page 3 of 7 Created On Sun Feb 28 05:02:44 IST 2016 C/SCA/2262/2016 ORDER 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.
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.
Page 4 of 7HC-NIC Page 4 of 7 Created On Sun Feb 28 05:02:44 IST 2016 C/SCA/2262/2016 ORDER
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, Co-operative Societies & Ors., AIR 2004 SC 4504, while dealing with the issue, this Court held that even the Supreme Court should not exercise the extraordinary jurisdiction under Article 142 issuing a direction to give compassionate appointment in contravention of the provisions of the Scheme/Rules etc., as the provisions have to be complied with mandatorily and any appointment given or ordered to be given in violation of the scheme would be illegal.
10. The word vested is defined in 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 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.
Page 5 of 7HC-NIC Page 5 of 7 Created On Sun Feb 28 05:02:44 IST 2016 C/SCA/2262/2016 ORDER 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.
In the overall view of the matter, I am not convinced with Page 6 of 7 HC-NIC Page 6 of 7 Created On Sun Feb 28 05:02:44 IST 2016 C/SCA/2262/2016 ORDER the case of the petitioner."
6. In view of the above, this application fails and is hereby rejected.
Direct service is permitted.
(J.B.PARDIWALA, J.) Vahid Page 7 of 7 HC-NIC Page 7 of 7 Created On Sun Feb 28 05:02:44 IST 2016