Mukeshkumar Maljibhai Rabari & 5 vs Gujarat State Road Transport ... on 25 June, 2015

[Cites 10, Cited by 1]

Gujarat High Court

Mukeshkumar Maljibhai Rabari & 5 vs Gujarat State Road Transport ... on 25 June, 2015

Bench: J.B.Pardiwala

         C/SCA/9177/2015                                   ORDER




         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            SPECIAL CIVIL APPLICATION NO. 9177 of 2015

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        MUKESHKUMAR MALJIBHAI RABARI & 5....Petitioner(s)
                             Versus
        GUJARAT STATE ROAD TRANSPORT CORPORATION &
                       1....Respondent(s)
==========================================================
Appearance:
MS.DILBUR CONTRACTOR, ADVOCATE for the Petitioner(s) No. 1 - 6
MR HEMANG M SHAH, ADVOCATE for the Respondent(s) No. 1 - 2
==========================================================

        CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA

                            Date : 25/06/2015


                             ORAL ORDER

1. By this writapplication under Article 226 of the Constitution of India, the petitioners serving with the Gujarat State Road Transport Corporation as ClassIV employee, have prayed for the following reliefs: "(A) Be pleased to issue an appropriate writ, order or direction, directing the respondents to consider the case of the petitioners for promotion to Class III posts within the respondent organization, as being qualified for the same;

(B) Be pleased to issue an appropriate writ, order or direction, and direct the respondents to forthwith appoint the petitioners to Class III posts;

(C) Pending admission and final disposal of the present petition, be pleased to direct the respondents to leave 6 positions of Class III clerks vacant, as is available with them, in the jurisdiction of the Page 1 of 11 C/SCA/9177/2015 ORDER respondent No.2, or as deemed fit by this Hon'ble Court.

(D) Pending admission and final disposal of the present petition, be pleased to direct the respondents to forthwith promote and appoint the petitioners to ClassIII Clerk posts at Mehsana, under the jurisdiction of the respondent no.2, or as deemed fit by this Hon'ble Court;

(E) Be pleased to pass such other and further orders as may be deemed fit and proper."

2. The case of the petitioners may be summarized as under:

3. The respective fathers of the six petitioners herein were serving with the Corporation. They all died in harness sometime in the year 2000. The petitioners prayed before the Corporation that they may be appointed on compassionate ground.

4. It appears that such claims which were put forward in the year 2000 were not considered even after a decade and, therefore, the petitioners herein filed Special Civil Application No.16383 of 2010. Other identically situated persons also joined and all the writapplications were clubbed and heard together. A learned Single Judge, vide order dated 29th March 2011, disposed of the writ application observing as under: "3. Today, when the matters are taken up for hearing Mr.Mukesh H.Rathod, learned advocate for the Page 2 of 11 C/SCA/9177/2015 ORDER petitioners in all the petitions states, upon instructions, that the petitioners are ready and willing to be considered for appointment on any post lower than that of Clerk and for this purpose the petitioners are willing to give undertakings to the respondentCorporation. Therefore, without prejudice to the rights and contentions of the petitioners regarding their appointment on the post of Clerk in future, the respondentCorporation may consider the petitioners for appointment on a lower post. This concession may not preclude the petitioners from making fresh applications for the post of Clerk, as and when such posts are advertised in the future. The learned advocate for the petitioners further states that if the respondentCorporation is willing to consider the petitioners for posts lower than that of Clerk, the petitions may be disposed of, with appropriate directions.

4. Mr. Shalin N.Mehta, learned advocate for Mr. Hemang M.Shah, learned advocate for the respondents has submitted that the respondents will consider the case of the petitioners for grant of appointments on compassionate grounds at posts lower than that of Clerk, subject to availability of the posts. Further, the applications made by the petitioners for grant of compassionate appointment shall be considered for the lower post, in accordance with law.

5. Having heard the learned advocates for the respective parties and in view of the above statements made by them, the following order is passed:

The petitioners shall give undertakings to the respondentCorporation to the effect that they are ready and willing to be considered for appointment on compassionate grounds, on posts lower than that of Clerk within 3 weeks from today. The respondent Corporation may consider the applications made by the petitioners for grant of appointment on posts lower than that of Clerk, in accordance with law, and as expeditiously as possible. The petitioners are at liberty to make fresh applications for the post of Clerk, as and when vacancies in the cadre of Clerk arise and the posts are advertised.

6. The petitions are disposed of, in the above terms, with liberty to the petitioners to approach this Court, in case of difficulty.

7. It is clarified that while passing this order, the Court has not entered into the merits of the case."

Page 3 of 11 C/SCA/9177/2015 ORDER

5. It appears that the petitioners herein had to once again come before this Court by way of Misc. Civil Application No. 726 of 2012 and the said application was disposed of vide order dated 30th July 2012. The order reads thus: "5. An affidavitinreply has been filed in Misc. Civil Application No.726 of 2012 by the respondent Corporation, wherein it has been stated that the matter has been sent for necessary approval to the State Government and that the respondentCorporation has requested the State Government to accord necessary approval for granting compassionate appointment to eligible persons. This Court, therefore, requested the learned Assistant Government Pleader to take instructions regarding the timeframe within which the State Government would be in a position to take a decision in the matter, as recorded in the order dated 19.06.2012 of this Court. Pursuant thereto, an affidavitinreply has been filed on behalf of respondent No.3 by the Under Secretary, Ports and Transport Department, wherein it is stated in Paragraph8 that respondent No.3 has granted approval to respondents Nos.1 and 2 to give compassionate appointment to the petitioners. A copy of the letter dated 25.07.2012, whereby the approval has been accorded, is annexed as AnnexureRI to the said affidavitinreply.

6. In the above circumstances, as the State Government has taken a decision to accord the approval to the proposal moved by the respondent Corporation for appointment of the petitioners, including the applicants, for grant of appointment on compassionate grounds subject to eligibility, nothing further survives in the present applications.

7. Mr.Hemang M. Shah, learned advocate for the respondentCorporation, has submitted that it would take the Corporation about three months to verify the details regarding the eligibility of the applicants for such appointment and to carry out the necessary verifications.

8. Ms.Mamta R. Vyas, learned advocate for the applicants submits that the respondentCorporation Page 4 of 11 C/SCA/9177/2015 ORDER may be directed to do the needful, within a time bound period.

9. In view of the above facts and circumstances, the respondentCorporation shall verify the details of the applicants, including their eligibility, in accordance with the sanction granted by the State Government and do the needful, within a period of three months from the date of receipt of a copy of this order.

The applications are partlyallowed, to the above extent. Rule is made absolute accordingly, in each application. Direct Service of this order is permitted."

6. After the order referred to above was passed the Corporation appointed all the six petitioners herein to ClassIV post.

7. By these writapplications, it is prayed that the Corporation should now appoint them as Class III employees. The foundation of such a claim is that the employees who had passed away while in service were in ClassIII employees.

8. Mr. Shalin Mehta, the learned senior advocate appearing for the Corporation, made his stance clear. He submitted that as on today there are 500 vacancies in ClassIII post and the Corporation is thinking of issuing an advertisement to undertake a fresh recruitment process within a period of six months. He submitted that the petitioners cannot, as a matter of right, claim that they be appointed on Page 5 of 11 C/SCA/9177/2015 ORDER a ClassIII post on compassionate ground without any regular recruitment process. Mr. Mehta submitted that in future if an advertisement is issued, it would be open for the petitioners to apply pursuant to the same and if they are otherwise found to be eligible, the Corporation may consider giving appointments on ClassIII post.

9. Mr. Mehta invited my attention to the affidavitinreply filed by the Chief Personnel Officer of the Corporation.

10. Ms.Contractor, the learned advocate appearing for the petitioner, vehemently submitted that according to the policy of the Corporation 33% of the posts are to be kept vacant for the purpose of providing compassionate appointment. According to her, the six petitioners before this Court can easily be appointed on ClassIII post in the quota of 33%. As against such submission of Ms. Contractor, Mr. Mehta, after taking instructions from the officer of the Corporation who is present in the Court, submitted that the Corporation has maintained the list of persons seeking compassionate appointment and there are 2000 persons waiting for their turn to be appointed on compassionate ground.

Page 6 of 11 C/SCA/9177/2015 ORDER

11. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for my consideration, is whether the Corporation should be directed to appoint the petitioners to ClassIII post. The law governing the subject of compassionate appointment is no longer res integra.

12. The philosophy underlying such appointment is to provide immediate succour to the bereaved family who would find itself in financial difficulties on account of loss of the sole earning member of the family. Compassionate appointment, by any stretch of imagination, cannot be termed as an alternative appointment.

13. I may quote with profit the observations made by the Supreme Court in this regard in one of the recent pronouncements in the case of MGB Gramin Bank v. Chakrawarti Singh AIR 2013 SC 3365, paragraphs 5, 6, 7, 8, 9, 10, 11 and 12: "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 Page 7 of 11 C/SCA/9177/2015 ORDER 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. Moreso, 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 and Ors., (1994) 4 SCC 138 : (1994 AIR SCW 2305), 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 thepenurious condition of the deceased's 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.

Page 8 of 11 C/SCA/9177/2015 ORDER

9. In A. Umarani v. Registrar, Cooperative Societies and Ors., AIR 2004 SC 4504 : (2004 AIR SCW 4462), 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 Black's 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 Webster's 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: Mosammat Bibi Sayeda v. State of Bihar AIR 1996 SC 1936 :

(1996 AIR SCW 2283); and J.S. Yadav v State of Uttar Pradesh (2011) 6 SCC 570) : (AIR 2011 SC (Supp) 659 :

2011 AIR SCW 3078).

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) : (2006 AIR SCW 3627).

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 and Anr. v. 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: Page 9 of 11 C/SCA/9177/2015 ORDER "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 exgratia lump sum amount provided they fulfill all the terms and conditions of this scheme."

14. Having regard to the principles of law explained by the Supreme Court referred to above, no case is made out for issue of a mandamus to the Corporation to appoint the six petitioners to ClassIII post. Once again at the cost of repetition, I state that the fathers of the respective petitioners had passed away way back in the year 2000. Almost 15 years have elapsed since the demise of the fathers. The six petitioners are fortunate enough to be in employment today as ClassIV employees with the Corporation.

15. It is needless to clarify that in future as and when the Corporation decides to undertake a fresh recruitment process by issuing an advertisement to fill up the vacant ClassIII posts, it shall be open for the petitioners herein to apply for the same, if they are otherwise found to be eligible.

16. In the result, this petition fails and is Page 10 of 11 C/SCA/9177/2015 ORDER hereby rejected. Notice stands discharged. No cost.

17. Adinterim relief granted earlier stands vacated forthwith.

(J.B.PARDIWALA, J.) Manoj Page 11 of 11

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