Gujarat High Court
Urvashiben Maheshkumar Vadhvani vs Gujarat Maritime Board on 12 September, 2019
Equivalent citations: AIRONLINE 2019 GUJ 742
Author: A.J. Shastri
Bench: A.J. Shastri
C/SCA/7759/2016 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7759 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 7083 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 7414 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 11400 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 11697 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 8005 of 2017
With
R/SPECIAL CIVIL APPLICATION NO. 8007 of 2017
With
R/SPECIAL CIVIL APPLICATION NO. 8008 of 2017
With
R/SPECIAL CIVIL APPLICATION NO. 8009 of 2017
With
R/SPECIAL CIVIL APPLICATION NO. 8010 of 2017
With
R/SPECIAL CIVIL APPLICATION NO. 13121 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 17607 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 17608 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 17609 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 17610 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE A.J. SHASTRI Sd/-
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1 Whether Reporters of Local Papers may be allowed to see No
the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
Page 1 of 47
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C/SCA/7759/2016 CAV JUDGMENT
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URVASHIBEN MAHESHKUMAR VADHVANI
Versus
GUJARAT MARITIME BOARD & 1 other(s)
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Appearance:
MS HARSHAL N PANDYA(3141) for the Petitioner(s) No. 1
MS REETA CHANDARANA(3023) for the Respondent(s) No. 1
NOTICE SERVED BY DS(5) for the Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE A.J. SHASTRI
Date : 12/09/2019
CAV JUDGMENT
[1] Rule. Learned advocates appearing on behalf of the respective respondents waive service of rule.
[2] The present group of petitions is arising out of a common cause by virtue of which the respective petitioners have not been either considered for compassionate employment or for lump-sum compensation mainly on the ground of delay as well as some of them have not been considered for want of adequate educational qualification. As a result of this, learned advocates appearing for the respective parties have requested the Court to hear and dispose of present group of petitions by common judgment and order since the respondent - authorities are the same authorities. Considering this request jointly made by learned advocates appearing for the respective parties, the Court has taken up this group for its disposal by present common judgment and order.
[3] The present group of petitions can be categorized basically in three groups. However, essentially on account of Page 2 of 47 Downloaded on : Fri Sep 13 20:59:45 IST 2019 C/SCA/7759/2016 CAV JUDGMENT death of employees, the legal representatives have not been given any respite as per the policy.
[4] The first group is consisting of petitions No. SCA/7759/2016, SCA/11400/2016, SCA/7083/2016, SCA/13121/2016, SCA/17607/2016, SCA/11697/2016, SCA/7404/2016, SCA/8010/2017 and SCA/17609/2016, the second category in which on account of delay in making application request is not acceded to is the group consisting of petitions No. SCA/8009/2017, SCA/17610/2016, SCA/8008/2017, SCA/8005/2017, and SCA/8007/2017, and the last category in which no decision is taken by the respondent - authorities is petition No. SCA/17608/2016. Since request of all these petitioners are centering around the policy in question framed by and adopted by respondent - Board, the factual details of each individual petition is summarized in a very brief manner since common submissions have been made in aforesaid three categories and as such, without detailing out much on factual background, as requested by learned advocates, brief summary given by the learned advocate appearing for the respective petitioners is enlisted hereinafter.
[5] So far as Special Civil Application No.7759 of 2016 is concerned, the petitioner Urvashiben Maheshkumar Vadhvani is the daughter of Signalman, who was serving in the respondent - Board, died during the service on 10.09.2006, leaving behind five daughters including petitioner. At the time of death of father, except petitioner other four daughters were minor whereas mother had already died prior to death of father i.e. on 10.09.2000. On account of death of father, an application was submitted on 11.04.2007, but the request has Page 3 of 47 Downloaded on : Fri Sep 13 20:59:45 IST 2019 C/SCA/7759/2016 CAV JUDGMENT been turned down that none of the legal heirs have passed standard 10th, and therefore, even lump-sum compensation is not possible to be paid apart from compassionate employment. As many as 10 years were left out for service of father, as a result of this, the petitioner being major was very much entitled to have the benefit of policy, which is even adopted by the Board for compassionate employment or in lieu even the lump-sum compensation. The petitioner has made an attempt to seek relief on the premise that a policy of government framed by virtue of Resolutions dated 10.03.2000 as well as dated 07.09.2002 for giving compassionate employment, but for respondent - Board, government has framed a resolution for giving lump-sum compensation on the basis of left out service and that resolution is dated 20.02.2006. It is further the case of the petitioner that the government resolution of giving lump-sum compensation was circulated to all the ports vide circular dated 28.04.2006, but the State Government later on came out with yet another policy of giving compensation in lieu of compassionate employment vide government resolution dated 05.07.2011. As a result of this, the earlier government resolution and the policy came to be cancelled by virtue of government resolution dated 25.04.2012. In turn, according to the petitioners, two circulars came to be issued to implement the policy and the said circulars are dated 02.06.2012 and 13.10.2014. Since this has been done, the petitioner being an elder sister, made representation since father was having left out service of 10 years and as such, according to the petitioner, she was entitled to get the compensation of Rs.4 lakhs. However, the respondent - Board has not considered the case mainly on the ground that requisite educational qualification of clearance of standard 10th is missing in case of Page 4 of 47 Downloaded on : Fri Sep 13 20:59:45 IST 2019 C/SCA/7759/2016 CAV JUDGMENT petitioner, and therefore, petitioner is not entitled to any benefit out of the policy. According to the petitioner, in substance, this denial of benefit on the ground of educational qualification is not only unjust and arbitrary but tilted with mala fides and against the spirit of the policy of giving compensation to left out the legal heirs of the employees. It has further been asserted in the petition that in identical cases, on 11.03.2016, on 10.03.2016 and on 06.10.2015 have been considered by the Board but in so far as petitioner is concerned, a serious discrimination is meted out. Resultantly, left with no other alternate, the petitioner is constrained to invoke extraordinary jurisdiction of this Court for challenging the decisions dated 26.11.2008 and dated 03.12.2008, and consequently, sought a direction upon the Board to consider the case of the petitioner in light of government resolutions dated 20.02.2006 as well as 25.04.2012.
[5.1] Similar is the case with respect to this category of employee, wherein, in case of Special Civil Application No.11400 of 2016, the death of the head of the family took place on 08.07.2006, the employee of the respondent - Board died during the service, leaving behind widow, two daughters and one minor son. In view of policy, the Board itself wrote a letter on 28.09.2006 pointing out and intimating about making an appropriate application. Resultantly, on 05.10.2006, the petitioner made an application which was rejected vide order / communication dated 25.03.2008 essentially on the ground of not possessing educational qualification either by widow or by son, who may later apply after possessing qualification, and thereby, at the time when need arose, the request did not consider. After attaining the requisite qualification, after a Page 5 of 47 Downloaded on : Fri Sep 13 20:59:45 IST 2019 C/SCA/7759/2016 CAV JUDGMENT period of two years, the son made an application on 20.03.2010 pointing out that he is now possessing requisite qualification, resultantly, his case may be considered. But then, application was ordered to be filed of petitioner No.2 vide communications dated 07.04.2011 and dated 19.03.2011 on the ground that son was not major at an appropriate stage i.e. when the death took place, then the correspondence took place by the petitioners, one on 20.06.2011 by petitioner No.2 and another by petitioner No.1 on 28.06.2016, but having not considered, the petitioner is constrained to approach this Court.
[5.2] Similarly, so far as Special Civil Application No.7083 of 2016 is concerned, the husband of the petitioner was serving as a Driver, who died during service on 19.07.2009, leaving behind widow, two daughters and two sons. After the death, the respondent - Board wrote a letter to fill-up the form by communication dated 31.07.2009. As a result of this, on 07.10.2009, an application was submitted seeking lump-sum compensation and this application came to be rejected vide communication dated 03.12.2009 on the ground that neither the widow nor her children are possessing educational qualification, as required and that has constrained the petitioner to approach this Court by way of present petition in the year 2016.
[5.3] The same is the case with respect to Special Civil Application No.13121 of 2016, in which also, the father died during the service on 10.10.2007, leaving behind widow, two daughters and three sons. Here the respondent - Board has not informed nor communicated but then for seeking lump-
Page 6 of 47 Downloaded on : Fri Sep 13 20:59:45 IST 2019 C/SCA/7759/2016 CAV JUDGMENTsum communication on 12.11.2007, the petitioner made an application. The said application came to be rejected vide communication dated 05.12.2007 on the ground that the petitioner is not possessing required educational qualification and by giving reference to one notification of the State Government dated 16.03.2005, the request came to be turned down. The notification which has been referred to is dated 16.03.2005 by virtue of which the rules have been framed which are known as the Gujarat Secretariat and non- Secretariat Officers Requirement Rules, 2005 for being appointed by direct selection, by transfer and deputation. Now, this has nothing to do with the grievance of the petitioner, according to the petitioner, and as such since irrelevant material is relied upon and the ground of educational qualification which is not available to the respondent - Board, the petitioner constrained to make representation lastly on 04.09.2012 and since no decision was taken for giving lump- sum compensation at least left with no other choice the petitioner constrained to approach this Court by way of present petition in the year 2016.
[5.4] In so far as, Special Civil Application No.17607 of 2016 is concerned, the father of the petitioner was working as a Seaman died during the service on 20.12.2009, leaving behind widow, one daughter (minor) and one son. Here also, the Board has not informed but the mother of the petitioner made an application on 03.03.2010 for grant of compassionate employment for her son. This application came to be rejected by the respondent - Board vide impugned communication dated 16.03.2010 mainly on the ground that there is no scheme prevailing for granting appointment on compassionate Page 7 of 47 Downloaded on : Fri Sep 13 20:59:45 IST 2019 C/SCA/7759/2016 CAV JUDGMENT basis in view of circular dated 05.04.2006. But thereafter, one another decision is taken by the Board in which application of the petitioner was ordered to be filed vide communication dated 01.04.2010 on the ground that petitioner does not possess required qualification and having merely qualification of standard 9th, and therefore, request came to be rejected. Since this has taken place, the petitioner made a representation even for considering the case for grant of lump- sum compensation in view of the policy framed vide government resolution dated 25.04.2012, but then there is no response given and the rejection was stands still of 2010.
[5.5] Yet another case i.e. Special Civil Application No.11697 of 2016 wherein the husband of the petitioner died on 05.05.2011, who was working as a Khalasi, leaving behind widow, mother-in-law, two sons (minor) and the Board wrote a letter to fill-up the form vide communications dated 13.06.2011 and dated 23.08.2011 for seeking compassionate appointment as well as for compensation in lieu of appointment. Resultantly, the petitioner applied in the format on 23.09.2011 but then on 13.10.2011, the respondent - Board rejected the request of the petitioner mainly on the ground that neither the petitioner nor her son are having SSC or HSC passed educational qualification and as such are not entitled for appointment and when they are not entitled for appointment, they are also not entitled for compensation. The reference of circular dated 29.03.2007 is referred to while rejecting the request but then the petitioner made representation on 24.09.2012 to reconsider the case at least for giving lump-sum compensation by virtue of policy contained in government resolution dated 25.04.2012 but then Page 8 of 47 Downloaded on : Fri Sep 13 20:59:45 IST 2019 C/SCA/7759/2016 CAV JUDGMENT there is no response which has dragged the petitioner to file present petition under Articles 226 and 227 of the Constitution of India.
[5.6] Same is the case with respect to Special Civil Application No.7404 of 2016 wherein death has taken place on 24.01.2007, who was working as a Cleaner, leaving behind widow and one son. The Board indicated to fill-up the form vide communication dated 01.03.2007 resultantly, on 06.03.2007, an application was made by the petitioner but then in the year 2008, the same was rejected on the ground that petitioner is not possessing required educational qualification and that rejection took place on 04.06.2008 and then in the year 2016, the present petition is filed for the purpose of considering the case.
[5.7] So far as Special Civil Application No.8010 of 2017 is concerned, the case is put up on the ground that husband of the petitioner who was working as a Junior Clerk died on 13.06.1997, leaving behind widow and two sons, who were minor at the relevant point of time. The Board did not indicate anything but then on 30.07.1999, a request was made for giving compassionate employment to the son when they attained majority. In turn, on 06.09.1999, widow was informed by respondent - Board that as and when her sons became major in the prescribed format application may be made and will be considered as per the policy. Nothing took place in between 8 years and then on 30.04.2007, a request was made to grant lump-sum compensation to the petitioner as per the policy. The Board in turn informed vide letter dated 27.05.2008 that an appropriate action will be taken as per the Page 9 of 47 Downloaded on : Fri Sep 13 20:59:45 IST 2019 C/SCA/7759/2016 CAV JUDGMENT head office decision but then for a pretty long period, no decision is taken which has led the petitioner to make another representation on 27.07.2012 with a request to grant lump- sum compensation, but then no reply was given. As a result of this, after almost a period of 4 years, the petitioner was constrained to approach this Court by way of Special Civil Application No.10916 of 2016 in which for consideration of compensation the petitioner was directed to make representation and the petition came to be disposed of on 11.07.2016. But then a fresh decision was taken after that on 28.10.2016 and while rejecting the request of the petitioner, it was informed by the Board that neither petitioner nor son was possessed requisite educational qualification.
[5.8] The petition of this category, i.e. Special Civil Application No.17609 of 2016 in which father of the petitioner who was working as Oilman, died on 01.11.2006 and the mother died on 07.05.2012 but when father died in 2006 the left out family members being the legal heirs were widow i.e. mother of the petitioner, two daughters and one son. On account of this, an application was made after almost a period of 8 years for giving lump-sum compensation to the petitioner which was made on 21.04.2015 as part of repeating the request but then after two months, a further representation was made on 23.12.2015 to consider the case of the petitioner for grant of lump-sum compensation. Ultimately, on 15.03.2016, the respondent - Board rejected the request on the ground that petitioner is not possessing educational qualification, and therefore, after almost a period of 10 years, the request is not adhere to.
Page 10 of 47 Downloaded on : Fri Sep 13 20:59:45 IST 2019 C/SCA/7759/2016 CAV JUDGMENT[5.9] So these are the petitions of first category in which essentially on the ground of not having requisite qualification of clearing standard 10th qualification, the request for employment and / or lump-sum compensation is not considered and then from the date of death, during this passage while approaching the Court, substantial time has elapsed and as such this category of a petitions are containing almost same background.
[6] So far as next second category of petitions are concerned, the brief background of individual cases are slightly different wherein on account of delay the request has not been adhere to. So far as petition bearing Special Civil Application No.8009 of 2017 is concerned, the father of the petitioner was working as a Tradesman, died during the tenure of service on 28.09.2001, leaving behind two daughters, one son and mother had already died and application was given by the petitioner for grant of compassionate employment on 11.04.2002. It appears that since nothing has been done, the petitioner filed another application after 4 years on 26.04.2006 seeking lump-sum compensation. On 13.07.2006, the respondent No.2 sent a letter to the petitioner to fill-up the form for grant of lump-sum compensation, but then on 27.11.2007, on account of delay in making application, the request is turned down. As a result of this, the petitioner was constrained to file Special Civil Application No.10915 of 2016 in which vide order dated 11.07.2016, the petitioner was directed to make representation for lump-sum compensation. After the said representation, on 28.10.2016, the request came to be rejected on the ground of delay by taking in aid the government resolution dated 07.09.2002. Since this rejection Page 11 of 47 Downloaded on : Fri Sep 13 20:59:45 IST 2019 C/SCA/7759/2016 CAV JUDGMENT has taken place in 2017, the present petitioner has filed the petition mainly on the ground that the High Court's direction has not been considered and though petitioner is physically handicapped to the extent of 70%, the request is not considered. But in essence, the death has taken place in the year 2001 whereas rejection took place, one in 2007 and another in 2016, and therefore, it appears that on account of delayed grievance of the petitioner, the Board has taken decision.
[6.1] Same is the case with respect to a petition which is numbered as Special Civil Application No.17610 of 2016 wherein the father of the petitioner was working as a Peon in the employment of respondent No.2, died during the service on 31.07.2003 and prior thereto mother had already died i.e. on 14.03.1994, leaving behind one minor son. As a result of this, the petitioner made an application for grant of compassionate employment on 26.10.2004 which came to be rejected on 05.12.2007 on the ground that there is no scheme for appointment on compassionate basis and the application is made beyond the period as mentioned in government resolution dated 07.09.2002. Therefore, in the year 2007, a decision is taken for not considering the case of the petitioner, and therefore, after almost a period of 9 years on 04.09.2016, the representation is made by the petitioner mainly on the premises that petitioner applied immediately after attaining the majority whereas the petitioner is orphan as mother of the petitioner died prior to death of father, and at that time, the petitioner was only aged about 8 years. But then, it appears that the father died in the year 2003, application rejected in 2007 and after 9 years, the representation is made in 2016 and consequently, present petition in the year 2016.
Page 12 of 47 Downloaded on : Fri Sep 13 20:59:45 IST 2019 C/SCA/7759/2016 CAV JUDGMENT[6.2] Yet the case of Special Civil Application No.8008 of 2017 is concerned, the father of the petitioner died on 12.09.2001, leaving behind widow and one minor son and the widow died on 30.05.2011 and the petitioner being son then applied on 07.03.2012. But then, the Board has rejected the request vide impugned communication dated 01.04.2013 essentially on the ground of delay in approaching the request came to be turned down. As a result of this, the Special Civil Application was filed after 3 years being Special Civil Application No.10913 of 2016 in which on 11.07.2016, the petition came to be disposed of with a permission to petitioner to make representation for getting lump-sum compensation. A fresh decision was taken on 28.10.2016 to reject the request by virtue of government resolution dated 07.09.2002 and then petition is filed in the year 2017 on the ground that petitioner is the orphan at a majority and applied with immediate effect at least is entitled to lump-sum compensation but then fact remain that death has taken place in the year 2001 and application has been made after 11 years for the first time in the year 2012 and petition is brought in 2017 of course after one petition is in the year 2016.
[6.3] Yet another petition of this category to is a petition being Special Civil Application No.8005 of 2017, wherein the father died on 26.05.2002, working as a Seaman, leaving behind widow, four daughters, three minor and one minor son and after 3 years, an application was submitted on 31.01.2005 for grant of compassionate employment and upon attaining the age of majority, the same came to be rejected on 11.07.2008 on the ground of delay. As a result of this, on Page 13 of 47 Downloaded on : Fri Sep 13 20:59:45 IST 2019 C/SCA/7759/2016 CAV JUDGMENT 16.07.2008, the petitioner requested to reconsider the case for giving lump-sum compensation as he was 14 years old at the time of death of his father. Again, the rejection has taken place on 06.02.2015 i.e. almost after 7 years and then petition came to be filed being Special Civil Application No.10912 of 2016 in which on 11.07.2016, a direction was given to make representation for securing lump-sum compensation. This fresh decision after the petition took place on 28.10.2016 and the request turned down on account of government resolution dated 07.09.2002 as being delay and that has given rise to present petition in the year 2017.
[6.4] Yet another petition being Special Civil Application No.8007 of 2017 is concerned, in which the father of the petitioner was working as a Seaman, died on 07.06.2000, leaving behind widow, one daughter, 3 sons and on 19.03.2001 for grant of compassionate employment, a request was made and after that after 5 years even an undertaking was also on 28.04.2006 by the petitioner that he may be paid lump-sum compensation and he will not claim any appointment. This request has been turned down after 2 years on 11.07.2008 on the ground of delay which has led the petitioner along with others by way of Special Civil Application No.10914 of 2016 which came to be disposed of on 11.07.2016 whereby direction was given to make representation for lump- sum compensation and then relying upon government resolution dated 07.09.2002, a fresh decision is taken on 28.10.2016 wherein on the ground of delay the case is not considered which has led the petitioner to this Court in the year 2017. So in this petition, the issue is still lingering for claiming benefits which said to have occurred on account of Page 14 of 47 Downloaded on : Fri Sep 13 20:59:45 IST 2019 C/SCA/7759/2016 CAV JUDGMENT death prior to almost 15 years. So this second category of petitions are entailing a question as to whether at such a belated stage, the request can be considered by invoking extraordinary jurisdiction or not.
[7] Third and last left category is in which the Board has not taken any decision at all and such petition is Special Civil Application No.17608 of 2016 in which the husband of the petitioner who was working as Tradesman, died on 20.08.2011, leaving behind widow, one minor daughter and two sons. The Board directed to fill-up the form vide communication dated 04.10.2011 in which it appears that after almost a period of 5 years an application was given by the petitioner to consider the case for compassionate employment for her son or for grant of lump-sum compensation and this application is made on 02.08.2016 but the Board has not taken any decision so far which has led the petitioner to this Court by way of present Special Civil Application referred to above. So this is a left out petition in which yet the Board has not taken any decision.
[8] In view of aforesaid factual details of each of the petitions these three categories have approached this Court by invoking extraordinary jurisdiction of this Court and the Court is called upon to consider the grievance of the petitioners by way of present group of petitions.
[9] This group appears to have been entertained originally by issuing notice in the year 2016 and then all the petitions appeared to have been clubbed by virtue of order dated 05.12.2018 and then after completion of pleadings, the Page 15 of 47 Downloaded on : Fri Sep 13 20:59:45 IST 2019 C/SCA/7759/2016 CAV JUDGMENT petitions were placed for hearing which were originally heard at length and by that time sittings have changed and then again re-notified before this Court for the purpose of its disposal in accordance with law in which the lawyers have represented respective sides and the Court has heard the same at length.
[10] So far as the first category of petition headed by Special Civil Application No.7759 of 2016 is concerned, learned advocate Ms. Harshal N.Pandya appearing on behalf of the petitioner has contended that action as well as inaction on the part of respondent Board are not just and proper in view of the fact that the respondents have deliberately not maintained the spirit of policy of compassionate employment. Even, in category No.A of this group of petitions, the respondent Board itself has indicated to fill-up the form and upon their instructions, the applications were submitted and as such later on to reject the same by making out a case of no qualification and delay etc., are nothing but frustrating the very object for which the scheme of compassionate employment and lump- sum compensation is formulated. It has further been submitted that the policy of the respondent Board dated 20.02.2006 now here indicates the requirement of educational qualification, even for compensation. The Board issued the circular on 05.04.2006, on the contrary, to follow the government resolution which has framed the scheme dated 20.02.2006. Further, circular of the State Government dated 29.03.2007 is in continuance of his own policy which is adopted and framed for giving compassionate employment, and therefore, now to incorporate the criteria of qualification is nothing but a clear example of arbitrary and capricious Page 16 of 47 Downloaded on : Fri Sep 13 20:59:45 IST 2019 C/SCA/7759/2016 CAV JUDGMENT exercise of power. In fact, the issuance of circular dated 19.10.2007, issued by the Board on the basis of earlier circular dated 29.03.2007, cannot be made applicable for compensation. Even otherwise, according to the learned advocate Ms.Pandya, a bare perusal would itself indicate that there is no criteria like educational qualification about its applicability even to the cases of compensation.
[10.1] Further, learned advocate Ms.Pandya has vehemently contended that even the new policy which is framed by the State Government of compensation in lieu of employment dated 05.07.2011 also does not prescribe the requirement of educational qualification, at least for paying compensation and undisputedly, here is the case, in which, according to the Board, they are not disentitled to have either employment or compensation. Even, the circular of the Board which was published on 25.04.2012, on the basis of government resolution dated 05.07.2011 for the employees of Gujarat Maritime Board also does not speak about requirement of educational qualification. When that be so, there is hardly any justification for the respondent Board to discard the request of the petitioners either for employment or for compensation by taking out the plea of requirement of educational qualification. Even otherwise, according to the learned advocate for the petitioners, there is no nexus sought to be achieved by policy of compensation looking to the objects contained in compassionate employment policy and here are the cases of group A, wherein almost all deceased were Class IV employees and majority of their widows are illiterate, who have responsibility of livelihood of the family. Therefore, this action on the part of respondent Board to Page 17 of 47 Downloaded on : Fri Sep 13 20:59:45 IST 2019 C/SCA/7759/2016 CAV JUDGMENT deprive the petitioners of their legitimate rights of policy under the guise of new criteria being created, such action does not fulfill the test of arbitrariness or Articles 14 and 16 of the Constitution of India. Accordingly, learned advocate Ms.Pandya for the petitioners has submitted that this is a fit case, in which, appropriate direction as prayed for deserves to be granted.
[10.2] Learned advocate Ms.Pandya for the petitioners has further submitted that even the reasons which are assigned are also not well supported by any justification to deprive the petitioners of their legitimate rights. It has been contended by learned advocate Ms.Pandya that practically all the employees who were working, died during the pendency of their service and there is no dispute about the fact that these petitioners are not the legal representatives, and therefore, to reject the request would be nothing but acting contrary to the spirit of compassionate employment policy. On the contrary, the government has clearly indicated the object and the said government policy is also accepted by the Board, and therefore, it should have been observed in its true spirit. At the best, according to the learned advocate Ms.Pandya, the policy which is prevalent at the time when death has occurred, the same would be applicable and not the policy which is subsequently tried to be made applicable. So far as delay aspect is concerned, the learned advocate Ms.Pandya has submitted that delay cannot be pressed into service as continuously the present petitioners have agitated the issue and as such by referring to some of the decisions, learned advocate Ms.Pandya has ultimately requested the Court to grant the relief as prayed for in the petitions.
Page 18 of 47 Downloaded on : Fri Sep 13 20:59:45 IST 2019 C/SCA/7759/2016 CAV JUDGMENT[10.3] A reference is made to a decision delivered by the Division Bench dated 07.08.2018 passed in Special Civil Application No.6946 of 2018. Yet another decision, which has delivered in Letters Patent Appeal No.1312 of 2017 dated 21.03.2018 and a decision delivered by the Apex Court which is in the case of Shiv Dass versus Union of India and others reported in (2007) 9 SCC 274, and thereby, learned advocate for the petitioners has requested the Court to consider and grant the relief as prayed for in the petitions. Of course, on the delay issue candidly it has been submitted that except continuous grievance being tried to be agitated, there is no other valid reason but the delay would be hyper technical and the same may not be considered by the Court while granting relief as prayed for in the petitions.
[10.4] So far as category No.2 is concerned, which is consisting of Special Civil Application Nos. 8009/2017, 17610/2016, 8008/2017, 8005/2017 and 8007/2017, it has been submitted that the policy of the State Government dated 10.03.2000 and dated 07.09.2002 has been adopted by the respondent Board and as per the resolution dated 07.09.2002, the time limit which is prescribed is of six months but then learned advocate Ms.Pandya has further submitted that pursuant to the circular dated 31.08.2005 issued by Gujarat Maritime Board if to be read closely, it speaks about the obligation of the officers of the Board to call for an application from the legal heirs to avail the benefits of policy, and therefore, if delay has taken place at the behest of the officers in observing the obligation contained in the circular, the said delay cannot be thrusted upon the petitioners. It has further Page 19 of 47 Downloaded on : Fri Sep 13 20:59:45 IST 2019 C/SCA/7759/2016 CAV JUDGMENT been submitted by learned advocate Ms.Pandya that in few cases, even the subordinate offices are followed the above instructions and some offices under the Board are not observing and flouting their own circular and as such when the circular itself is making it clear that first it is an obligation of the Board office to call for particulars there is hardly any reason to deny on the ground of delay.
[10.5] Yet another submission which has been made is about the policy with respect to granting of compensation, it has been submitted that government resolution dated 20.02.2006 does not speak about any time limit nor even applicability of terms and conditions of government resolution dated 10.03.2000 as well as dated dated 07.09.2002 and as such there is no justification in favour of the Board to deny the employment to the petitioners. It has been submitted that there are cases, in which, at the relevant point of time, the legal heirs might not have attained the age of majority and in such kind of circumstances whenever they attained the age of majority immediately they have applied for seeking the benefits. Now even that has also not been considered on the ground of delay since this is a situation prevailing the relief prayed for in this category deserves to be granted. On the contrary, it has been submitted that whenever there is a conflict between the substantial justice and technical consideration, the substantial justice must be given predominance so in this set of petitions, category B, the orders and the action deserves to be quashed and set aside.
[10.6] So far as category No.3 is concerned, the same is consisting of petition being Special Civil Application No.17608 Page 20 of 47 Downloaded on : Fri Sep 13 20:59:45 IST 2019 C/SCA/7759/2016 CAV JUDGMENT of 2016, in which petition, pursuant to the application dated 02.08.2016 till date no decision is taken by the respondent Board, and therefore, this is a singular petition, in which, no decision is yet taken, and therefore, without offering any comment on merit so far as sustainability of claim is concerned, the petitioner would like to request the Court to issue appropriate direction upon the board to decide as expeditiously as possible.
[10.7] In sum and substance, learned advocate Ms.Pandya has raised the issue with regard to applicability of policy, the issue raised with regard to insertion of requirement of adequate educational qualification and the issue related to a belated request for considering the benefits. Hence, looking to the aforesaid submissions, learned advocate Ms.Pandya has submitted that this is a fit case, in which, an appropriate order deserves to be passed.
[10.8] Out of this group of petitions, so far as one distinct petition is concerned, being Special Civil Application No.11400 of 2016, where in addition to all other similar prayers, as has been made in the aforesaid three categories, one additional prayer is made in terms of para 6(A) whereby a request is made to declare and hold the circular dated 19.10.2007 issued by the respondent Board is illegal, arbitrary, illogical and not in consonance with circular dated 29.03.2007 and simultaneously, requested to quash and set aside the impugned circular dated 19.10.2007. Now except this prayer, the other prayers are similar to those of aforesaid category of cases, and as such, as per the request of learned advocates jointly, this petition is also taken up for its consideration Page 21 of 47 Downloaded on : Fri Sep 13 20:59:45 IST 2019 C/SCA/7759/2016 CAV JUDGMENT conjointly with the present order. So far as this aspect is concerned, learned advocate for the petitioners has submitted that original policy dated 20.02.2006 is reflecting no criteria of eligibility about educational qualification, and further, now here the time limit was prescribed, and therefore, based on this policy dated 20.02.2006, the circular came to be issued which is at page 20 of the petition compilation which is dated 05.04.2006, and especially, when no requirement of educational qualification was insisted upon not forming part of the basic policy, the action of insertion of educational qualification for discarding the request of the petitioners is nothing but a clear example of arbitrary exercise of power treated with mala fide and not on the touch stone of Articles 14 and 16 of the Constitution of India. Hence, the relief prayed for in terms of para 6(A) deserves to be granted.
[10.9] Learned advocate Ms.Pandya has further submitted that this insertion is rather beyond the scope of the authorities and as such the policy being not fulfilling the test of Articles 14 and 16 of the Constitution of India, the same deserves to be declared as invalid, hence, the relief prayed for be granted in the interest of justice. Additionally, it has further been submitted that the reading of circular in consonance with the basic policy of compassionate employment, there seems to be no nexus with the purpose for which the policy was framed, and therefore, the authorities are appearing to be acting on the whims and its caprices from time to time just to discard some of the employees from being employed. On the contrary, under the guise of such policy, arbitrarily the respondent authorities are not acting vigilantly allowing time to pass by and since there appears to be no cheques and Page 22 of 47 Downloaded on : Fri Sep 13 20:59:45 IST 2019 C/SCA/7759/2016 CAV JUDGMENT balance in the policy itself, the circular dated 19.10.2007 as well as dated 29.03.2007 deserves to be declared as unconstitutional. On the contrary, according to the learned advocate Ms.Pandya, the respondent Board has to act as a model employer since they are akin to the authorities prescribed under Article 12 of the Constitution of India. That being so, it is not open for the respondent Board to act arbitrarily and since the policy and the circular itself appears to be unvalid and uncanalized, the same is required to be declared as invalid. Accordingly, the relief prayed for be granted in the interest of justice.
[10.10] On the contrary, leaving room for applying pick and choice policy which would violate Article 14 of the Constitution of India and the scheme which is prevalent at the time of making an application has to be considered instead of allowing such policy which is not fulfilling the test of Articles 14 and 16 of the Constitution of India to be utilized by the Board to refuse the request of the petitioners. Hence, the relief as prayed for deserves to be granted which would meet ends of justice.
[11] To meet with the stand taken by learned advocate Ms.Harshal Pandya appearing on behalf of the petitioners, learned advocate Ms.Dharmishta Raval appearing on behalf of the respondent authorities has vehemently opposed the petitions mainly on the ground that there is a gross delay in precipitating the request of compassionate employment, years back the death has taken place and after unreasonable period, insistence is being made for either grant of compassionate employment or lump-sum compensation. It has been Page 23 of 47 Downloaded on : Fri Sep 13 20:59:45 IST 2019 C/SCA/7759/2016 CAV JUDGMENT submitted that very object of compassionate policy is to give immediate respite to the family and to meet with the sudden shock and economic crunch which may be faced by the family of a person who died during tenure. Whereas here is the case in which each facts if to be looked into not only there is a gross delay but it seems that over the period of time, the family has sustained after the death of an employee and as such after this much period of time, this compassionate employment or lump-sum compensation cannot be asked as a matter of right. It has been held by several decisions that to seek an employment on compassionate basis is not a fundamental right and cannot be claimed as a matter of absolute right because the said request can be considered after analyzing multiple circumstances. This gross delay itself is indicative of the fact that compassionate employment need not be granted to the petitioners. According to learned advocate Ms. Raval representing the authorities has submitted that here is the case in which not only there is a gross delay but the persons have waited till attaining the age of majority in some cases, as if this employment is of right. On the contrary, the policy of the Board is dependent upon the policy framed by the Government as well because the same is to be adopted from State's policy and as such in this peculiar background of facts, it is not open for the petitioners to go on asking for such employment.
[11.1] An attempt is made to persuade the Court on the basis that in similarly situated cases, the Board has considered the cases based upon the decision of this Court i.e. High Court of Gujarat. But on that submission, learned advocate Ms. Raval has submitted that a bare perusal of the said decisions Page 24 of 47 Downloaded on : Fri Sep 13 20:59:45 IST 2019 C/SCA/7759/2016 CAV JUDGMENT which are pressed into service would clearly indicate that the learned Single Judge was not brief in detail about the relevant material and the circumstances of this nature have not been pointed out and as such the said decision cannot be insisted upon even in view of the principle of equality as the circumstances are together different. For this purpose, the learned advocate Ms. Raval has drawn the attention to the decisions which are delivered by the Court, and thereby, reiterated that no similarity exist which can be considered while dealing with present petition. It has been further submitted that there is neither any pick and choose policy being adopted by the authorities, and therefore, action cannot be said to be violative of Article 14 in any form and here is the case in which the power of corporation is not in dispute nor is the subject matter of controversy. Further, when tabular form which has been given by the petitioners if to be looked into that chart, itself would indicate that there no case is made out for asking relief as prayed for. It has further been submitted that by virtue of government resolution, a mere compensation is being provided instead of actual employment but then the policy is also depending upon certain criteria and if the same is to be met with then only case can be considered.
[11.2] Learned advocate Ms. Raval has further submitted that there is challenge which has been made to the circular but a bare perusal of the petition would makes it clear that the same is not supported by any pleadings and pleadings are vital for the purpose of considering the relief, in the absence of any pleadings to that effect that is hardly any reason for allowing the petitioners to agitate and challenge the validity of circular. Even the prayer which has been made is also not supported by Page 25 of 47 Downloaded on : Fri Sep 13 20:59:45 IST 2019 C/SCA/7759/2016 CAV JUDGMENT proper pleadings, if can be seen from bare reading of the averments contained in the petitions. For considering the prayer 6(A), no grounds are made out in the pleadings and Articles 14 and 19 of the Constitution of India can be insisted upon provided the right being is a fundamental right only thereafter, the same can be agitated. But here is case in which it has now been clarified by catena of decisions that this compassionate employment cannot be considered as a fundamental right. Learned advocate Ms. Raval has submitted that while dealing with one of the cases by the coordinate Bench of this Court in Special Civil Application No.1742 of 2013 decided on 30.08.2016, at that time, no detail submissions were made with respect to validity of circular. According to learned advocate Ms. Raval, even lump-sum compensation also cannot be considered to be paid since this lump-sum compensation policy has been framed only on 05.07.2011 and this cause of action of these petitioners is much prior to this issuance of circular. As a result of this, prevalent policy if to be considered, no case is made out by the petitioners.
[11.3] As an officer of this Court, few decisions have been relied upon by the learned advocate Ms.Dharmishta Raval, which are as under:
(i) In the case of Bhawani Prasad Sonkar versus Union of India & Ors. reported in (2011) 4 SCC 209.
(ii) In the case of Food Corporation of India and Another versus Ram Kesh Yadav and Another reported (2007) 9 SCC 531.
Page 26 of 47 Downloaded on : Fri Sep 13 20:59:45 IST 2019 C/SCA/7759/2016 CAV JUDGMENT(iii) In the case of Ashok Kumar v. District Magistrate, Basti & Anr. reported in (2012) 3 SCC 311.
[11.4] After referring to the aforesaid decisions, a request is made to dismiss the petitions. However, learned advocate Ms.Raval has candidly submitted that if there is still a lame hope for the petitioners that the Board may consider, it is always open for the petitioners to make a request to the respondent Board by way making detail representation and the board will definitely try to reconsider the issue keeping in view all the relevant circumstances prevailing on record if permissible. Hence, learned advocate Ms.Raval has submitted that these reliefs are not possible to be granted as a matter of right and at the best has requested the Court that liberty be kept open for the petitioners to make a request to the Board. Otherwise, this is not a fit case in which any writ of mandamus is possible to be issued. With these submissions, learned advocate Ms. Raval has requested the Court to dismiss the petitions.
[12] In support of these submissions, learned advocate Ms.Sejal Mandavia appearing on behalf of the Board, in some of the petitions, has also vehemently opposed the stand of the petitioners and has stated that this is nothing but a clear abuse of a process of the Court machinery under the garb of seeking sympathy from the Court. Otherwise, several years have been passed, much material change of circumstance has taken place over the period of time and delay itself is sufficient enough to discard the request of the petitioner. Learned Page 27 of 47 Downloaded on : Fri Sep 13 20:59:45 IST 2019 C/SCA/7759/2016 CAV JUDGMENT advocate Ms.Mandavia has further submitted that some of the cases, out of this group, are such wherein repeatedly even if the Board has indicated that request is not possible to be acceded, again and again an attempt is made to approach the Court. This itself is a relevant circumstance for dismissing the petitions after unreasonable period and for agitating again and again. For example in one of the petition, death has taken place on 26.05.2002, first application was dated 31.01.2005, not considered, second was made on 16.07.2008, not considered and third one was on 06.05.2015, not considered, still however, went on making repeated request. It has further been submitted that authorities cannot be compelled to wait till the heirs are becoming major, very object of compassionate policy is to give immediate relief to the family and that is the main object for which the policy was framed. Now here is, if the reliefs are considered, the very object would be frustrated and on account of this petitioners, some of the more eligible persons would be deprived of the respective benefits of the policy.
[12.1] learned advocate Ms.Sejal Mandavia appearing on behalf of the Board has further submitted that challenge to the circular, at this belated stage, is not to be encouraged for 2, 3 reasons that in some of the cases for several years are passed on, the petitioners have waited for ventilating their grievance. Secondly, in some of the cases, twice or thrice, the request is turned down and then an attempt is made to challenge the policy, and therefore, at a belated stage, such challenge may not to be encouraged and ex facie if the policy to be viewed, as a whole, it cannot be termed that in his violated of any of the fundamental right, there is no question of violation of Page 28 of 47 Downloaded on : Fri Sep 13 20:59:45 IST 2019 C/SCA/7759/2016 CAV JUDGMENT Articles 14 and 16 of the Constitution of India in any form in the present background and as such learned advocate Ms.Madavia has vehemently opposed the petitions and requested that none of the petitions be entertained. For this purpose, learned advocate Ms.Madavia has relied upon two decisions, one which is in the case of Haryana State Electricity Board & Anr. v. Hakim Singh reported in (1997) 8 SCC 85, which is related to the object of compassionate policy and further a decision which is in the case of Local Administration Department & Anr. versus M.Selvanayagam @ Kumaravelu reported in (2011) 13 SCC 42 and by referring to paragraph Nos.9 and 10, a request is made not to entertain present petitions.
[13] Similarly, learned advocate Ms.Reeta Chandarana appearing on behalf of the authorities in some of the cases precisely in Special Civil Application No.7759 of 2016, the same contentions have been adopted and has submitted that if petitioners would like to make a representation independently it may be made but here is the case in which as a matter of right, no writ is possible to be issued in view of peculiar background. Hence, learned advocate Ms.Chandarana has submitted that the petitions deserves to be dismissed.
[14] In rejoinder to these submissions made by learned advocates representing the respondent authorities, learned advocate Ms.Harshal N.Pandya for the petitioners have reiterated that it cannot be said that there is any delay on the part of the present petitioners in ventilating grievances because in some of the cases, the Board itself has indicated to make an application and supply the particulars. Hence, the Page 29 of 47 Downloaded on : Fri Sep 13 20:59:45 IST 2019 C/SCA/7759/2016 CAV JUDGMENT delay which has occasioned, at the end of respondent authorities, may not be construed as that delay which may disentitled the petitioners from seeking any relief. It has been reiterated that when the policy is framed by the authorities that the same is to be adhere to irrespective of its position and the circumstances and these petitioners are coming from lower strata of the society, cannot be treated like this in an arbitrary form. Hence, respondent authorities are under an obligation to consider the case of the petitioners. On the contrary, wherever individual employee has come up, the authorities have chosen to consider the case which are demonstrates in earlier part of present order and as such appropriate direction be given to reconsider the case at the best. No doubt, the petitioners are insisting upon the reliefs which are prayed for. For the purpose of strengthening submissions, learned advocate for the petitioners has pointed out a decision which is in the case of Babubhai Ranchhodbhai Patel versus State of Gujarat & Ors. reported in 1993 (2) GLH 705, and thereby, has requested the Court to grant the relief as prayed for in the petitions. No other submissions have been made by both the sides.
[15] Having heard learned advocates appearing for the parties and having gone through the material which has been placed before the Court, the Court is of the opinion that before dealing with the reliefs which are prayed for the basic policy and the aimed behind compassionate employment deserves to be considered. Over the period of time, the concept of compassionate employment appears to have been gradually reanalysed by the Apex Court and it has been treated that the same cannot be construed as a fundamental right nor can be Page 30 of 47 Downloaded on : Fri Sep 13 20:59:45 IST 2019 C/SCA/7759/2016 CAV JUDGMENT claimed as a matter of right. Few observations contained in some of the decisions delivered by the Apex Court are deserves to be considered in the light of peculiar background of present facts. Hence, the observations of the Apex Court are reproduced hereinafter:
(i) In the case of Bhawani Prasad Sonkar (supra), the relevant observations of the said decision are in Para.15 which quoted, thus;
15. Now, it is well settled that compassionate employment is given solely on humanitarian grounds with the sole object to provide immediate relief to the employee's family to tide over the sudden financial crisis and cannot be claimed as a matter of right. Appointment based solely on descent is inimical to our Constitutional scheme, and ordinarily public employment must be strictly on the basis of open invitation of applications and comparative merit, in consonance with Articles 14 and 16 of the Constitution of India. No other mode of appointment is permissible. Nevertheless, the concept of compassionate appointment has been recognized as an exception to the general rule, carved out in the interest of justice, in certain exigencies, by way of a policy of an employer, which partakes the character of the service rules. That being so, it needs little emphasis that the scheme or the policy, as the case may be, is binding both on the employer and the employee. Being an exception, the scheme has to be strictly construed and confined only to the purpose it seeks to achieve.
(ii) In the case of Food Corporation of India (supra), the relevant observations of the said decision are in Para.9 which quoted, thus;
Page 31 of 47 Downloaded on : Fri Sep 13 20:59:45 IST 2019 C/SCA/7759/2016 CAV JUDGMENT9. There is no doubt that an employer cannot be directed to act contrary to the terms of its policy governing compassionate appointments. Nor can compassionate appointment be directed dehors the policy. In Life Insurance Corporation of India v. Asha Ramchandra Ambedkar [1994 (2) SCC 718], this Court stressed the need to examine the terms of the Rules/Scheme governing compassionate appointments and ensure that the claim satisfied the requirements before directing compassionate appointment. In this case, the scheme clearly bars compassionate appointment to the dependant of an employee who seeks voluntary retirement on medical grounds, after attaining the age of 55 years. There is a logical and valid object in providing that the benefit of compassionate appointment for a dependant of an employee voluntarily retiring on medical grounds, will be available only where the employee seeks such retirement before completing 55 years. But for such a condition, there will be a tendency on the part of employees nearing the age of superannuation, to take advantage of the scheme and seek voluntary retirement at the fag end of their service, on medical grounds, and thereby virtually creating employment by 'succession'. It is not permissible for the court to relax the said condition relating to age of the employee. Whenever a cut off date or age is prescribed, it is bound to cause hardship in marginal cases, but that is no ground to hold the provision as directory and not mandatory.
(iii) In the case of Ashok Kumar (supra), the relevant observations of the said decision are in Para.10 which quoted, thus;
Page 32 of 47 Downloaded on : Fri Sep 13 20:59:45 IST 2019 C/SCA/7759/2016 CAV JUDGMENT10. The Division Bench of the High Court has also dismissed the appeal filed by the appellant on the ground of delay and laches. It is, time and again, stated that a party who has slept over his rights is not entitled to the discretionary relief of the High Court. In the instant case, it is the case of the appellant that his mother was suffering from illness and, therefore, he could not file the appeal within statutory period of limitation against the judgment and order passed by the Writ Court. But, in support of that contention, the appellant had not produced any documentary evidence, such as the medical certificate issued by a competent doctor. In the absence of such an evidence, in our opinion, the High Court was justified in rejecting the appeal on the ground of delay and laches also. Haryana State Electricity Board v. Hakim Singh
(iv) In the case of Local Administration Department & Anr. (supra), the relevant observations of the said decision are in Para.9 and10 which quoted, thus;
9. The second reason given for not accepting the respondent's claim was rejected outright by the Division Bench relying upon a decision of this Court in Balbir Kaur and another Versus Steel Authority of India Ltd. and others, AIR 2000 SC 1596. And on this score, the decision of the High Court cannot be faulted. But the Division Bench also disapproved the first reason assigned for rejecting the respondent's claim. It accepted the respondent's explanation for her mother not applying for a job on the death of his father and held that could not be a ground for denying appointment to him on compassionate basis. In this connection, the Division bench said:
Page 33 of 47 Downloaded on : Fri Sep 13 20:59:45 IST 2019 C/SCA/7759/2016 CAV JUDGMENT"So far as the first reasoning is concerned, at the time of death of father of the petitioner, the petitioner was just 11 years old. In the S.S.L.C., examination conducted in April, 1993, he came out successfully and made an application on 12-
7-1993 for compassionate appointment. Thereafter, number of representations were sent to the Karaikal Municipality and this Court finds in one such representation dated 13-9-1996 (as found in the file produced by the Municipality), it has been stated as under, "My mother could not immediately seek for self- employment, as she was suffering from anaemia and hypo tension. Though my family was really in harness (sic distress), my mother managed to maintain the family with the help of her pension amount and that of her earnings from attending menial works from house to house."
This claim was made in fact three years prior to the filing of the first writ petition. In the affidavit filed in support of the present writ petition also in paragraph 2, a specific mention about this has been made. If that is so, obviously that was the reason as to why she did not apply for the job immediately after the death of her husband in the municipality, that is, due to bad health.
In these circumstances, this Court does not find any substance in the first reasoning as well that the failure on the part of the mother of the appellant to apply immediately for appointment relaxing the relevant rules would show that the family was not in difficulties."
10. We think that the explanation given for the wife Page 34 of 47 Downloaded on : Fri Sep 13 20:59:45 IST 2019 C/SCA/7759/2016 CAV JUDGMENT of the deceased not asking for employment is an after- thought and completely unacceptable. A person suffering from anaemia and low blood pressure will always greatly prefer the security and certainty of a regular job in the municipality which would be far more lucrative and far less taxing than doing menial work from house to house in an unorganised way. But, apart from this, there is a far more basic flaw in the view taken by the Division Bench in that it is completely divorced from the object and purpose of the scheme of compassionate appointments.
(v) In the case of Mukesh and another versus State of Bihar and others reported in (2017) 5 SCC 383, the head note of the said judgment reproduced hereinafter:
"Service Law - Appointment - Compassionate appointment - Right to compassionate appointment - Parity - Pay - Reiterated, there is no right to seek compassionate appointment since compassionate appointment is not a source of recruitment but is a mode to provide succour to family of employee who died in harness - In present case, held, appellants appointed prior to 1-7-2006 i.e. enforcement of 2006 Rules are governed by Vishwanath Pandey, (2013) 10 SCC 545 and recommended for appointment on Class III or Class IV posts on regular basis or entitled to continuance as Teachers on regular pay scale, while appellants appointed after 1-7-2006 not entitled to relief of regular pay scales but granted liberty to approach State Government for suitable reliefs in terms of order of Supreme Court dt.26-11-2012 - Bihar Panchayat Primary Teachers (Appointment and service Conditions) Rules, 2006, R.10"
Page 35 of 47 Downloaded on : Fri Sep 13 20:59:45 IST 2019 C/SCA/7759/2016 CAV JUDGMENT[16] Now in the light of aforesaid circumstances, a bare perusal of factual details deserves to be considered. If the individual facts of the petitions of three categories to be considered in brief, it indicates following reflections:
(i) First petition being Special Civil Application No.11400 of 2016 is concerned, death has taken place on 08.07.2006, request was rejected on 25.03.2008, thereafter, after two years, the son having possessed qualification, applied on 20.03.2010 and the same was rejected on 07.04.2011 and on 19.03.2011, and therefore, in substance for claiming the benefits, pursuant to death in the year 2006, the petition is brought after two rejections in the year 2016 and after last rejection, the petition has been brought after five years.
(ii) Second petition being Special Civil Application No.7759 of 2006 is concerned, the death has taken place on 10.09.2006, five daughters out of which four were major at a time appears to have made a request but then it was rejected way back in November 2008 vide communication dated 26.11.2008 and another one on 03.12.2008. Now, for ventilating this grievance, the petition is brought in the year 2016, so after eight years from the last rejection and after more than ten years from the date of death and again there was no qualification.
(iii) Third petition being Special Civil Application No.7083 of 2016 is concerned, employee had died on 19.07.2009, application was made on 07.10.2009, rejected on 03.12.2009 and for that purpose, a petition is brought after seven years and the case was not considered on the ground that there was no qualification as well.
Page 36 of 47 Downloaded on : Fri Sep 13 20:59:45 IST 2019 C/SCA/7759/2016 CAV JUDGMENT(iv) Fourth petition being Special Civil Application No.13121 of 2016 is concerned, death has taken place on 10.10.2007, application was made on 12.11.2007, rejected on 05.12.2007, relying upon the notification of the State Government dated 16.03.2005 and then a request was made for lump-sum compensation on 04.09.2012 having not considered or decided the petition is brought after four years from last non consideration and after nine years from the date of death.
(v) Fifth petition being Special Civil Application No.17607 of 2016is concerned, the death has taken place on 20.12.2009, application was made in 03.03.2010, rejected on 16.03.2010, as at a relevant point of time, there was no policy and for that they waited for further more years and then on 06.11.2012 applied for lump-sum compensation. Now here, the petition is brought in the year 2016 i.e. four years after the last request and some nine years from the date of death of an employee.
(vi) So far as six petition being Special Civil Application No.11697 of 2016 is concerned, death has taken place on 05.05.2011, last rejection on 13.10.2011 and the petition is brought in the year 2016 i.e. after more than five years from the date of death and four years from the last request.
(vii) Similarly is the case with respect to 7th petition being Special Civil Application No.7404 of 2016 is concerned, death has taken place on 24.01.2007, not considered on 04.06.2008 and petition is brought after more than a period of eight years and more.
Page 37 of 47 Downloaded on : Fri Sep 13 20:59:45 IST 2019 C/SCA/7759/2016 CAV JUDGMENT(viii) So far as 8th petition being Special Civil Application No.8010 of 2007 is concerned, death has taken place way back on 13.06.1997, in which, the petition was brought originally being Special Civil Application No.10916 of 2016 wherein a direction was issued to consider, the request was not considered and fresh decision was taken on 28.10.2016 and as a second round of litigation, present petition is brought. It indicates clearly that death has taken place in 1997 and the grievance is tried to be reagitated by way of second round in present petition in 2017.
(ix) So far as 9th petition, last petition of first category, being Special Civil Application No.17609 of 2016 is concerned, the death has taken place on 01.11.2006, application was made on 20.02.2007, thereafter, remain silent for eight years and then made another application on 21.04.2015 for lump-sum compensation, and then made further representation after more than eight months on 23.12.2015 which was rejected on 15.03.2016 therefore, this petition in 2016. So practically after more than a period of ten years, the grievance is still to be agitated as if it is a fundamental right of a legal heir.
[17] With these backgrounds of first category of petitions, the Court is of the clear opinion that there is a gross delay in approaching the Court by invoking extraordinary jurisdiction of this Court and as such on this very ground, the petitions do not deserve any consideration in view of aforesaid proposition of law laid down by the Apex Court in several decisions on this very issue of compassionate employment.
Page 38 of 47 Downloaded on : Fri Sep 13 20:59:45 IST 2019 C/SCA/7759/2016 CAV JUDGMENT[18] The compassionate appointment as has been tried to be agitated continuously for years together, the Court is of the opinion that such belated and continued challenge is rather contrary to the very object for which policy of compassionate appointment is formulated.
[19] Now so far as second category of petitions are concerned, the first petition being Special Civil Application No.8009 of 2017 wherein the death has taken place on 28.09.2001, application was rejected on 27.11.2007. But by this time, one application appears to have been made on 11.04.2002 for grant of compassionate employment and then after 4 years one another application came to be filed on 26.04.2006 and then the same came to be rejected on the ground of delay. This petition is also having a background of previous round of litigation in the form of Special Civil Application No.10915 of 2016 which came to be disposed of by directing the petitioner to make representation vide order dated 11.07.2016 but then a fresh decision was very much taken on 28.10.2016 and then further request also came to be rejected and then this petition. No doubt, herein this petition, the petitioner appears to be a physically challenged candidate but then the principle of delay and laches would not be considered differently simply because the petitioner is physically challenged one. A ground is tried to be made out for creating sympathy but here is the case in which physically challenged petitioner if in a position to went on making representation time and again, approaching the Court prior in point of time in first round of litigation then if this is possible as if an ordinary litigant no special treatment or undue sympathy is possible to be extended to this petitioner. Hence, his case Page 39 of 47 Downloaded on : Fri Sep 13 20:59:45 IST 2019 C/SCA/7759/2016 CAV JUDGMENT cannot be considered differently in the light of present background of fact.
[19.1] Second petition of this group is a petition being Special Civil Application No.17610 of 2016 wherein death has taken place prior to 13 years i.e. on 31.07.2003, an application was made on 26.10.2004, the same was rejected on 05.12.2007, since there was no policy available and then the present petition is brought in the year 2016 therefore, this petition has been filed after 13 years from the date of death and there is no cogent explanation about the belated approach, the petitions suffers from gross delay and laches.
[19.2] The third petition in the light of this second category is Special Civil Application No.8008 of 2017 wherein the death has taken place prior to 16 years i.e. on 12.09.2001, application appears to have been filed after attaining the majority that is after more than 5 years. The same came to be rejected on 01.04.2013 and this petition is also having a background of previous litigation in the form of Special Civil Application No.10913 of 2016 wherein direction was given to consider the case for lump-sum compensation vide order dated 11.07.2016 and that came to be rejected on 28.10.2016 and after such a gross delay of 16 years from the death of date, an attempt is made to seek benefits out of an eventuality which unfortunately took place in the family.
[19.3] Yet another 4th petition being Special Civil Application No.8005 of 2017 wherein death has taken place prior to 15 years i.e. on 26.05.2002, the last rejection on 11.07.2008 and then this petitioner is also having a Page 40 of 47 Downloaded on : Fri Sep 13 20:59:45 IST 2019 C/SCA/7759/2016 CAV JUDGMENT background of previous litigation in the form of Special Civil Application No.10912 of 2016 wherein the direction was given vide order dated 11.07.2016, thereafter, it appears that the Board has taken a fresh decision on 28.10.2016 and then present petition is brought before this Court. So here is the case in which twice a rejection has taken place of the request of the petitioner and then petition is brought belatedly, in fact, this cause is being reagitated even after 15 years from the date of death i.e. in 2002.
[19.4] Last petition of this second category of group is Special Civil Application No.8007 of 2017 in which the death has taken place prior to almost 17 years i.e. on 07.06.2000, after 5 years the particulars were submitted and instead of employment lump-sum compensation is sought vide undertaking dated 28.04.2006. The said request was rejected on 11.07.2008 which again has led to previous round of litigation in the form of Special Civil Application No.10914 of 2016 wherein vide order dated 11.07.2016, the Court directed the board to consider the representation in respect of request about lump-sum compensation and a fresh decision was taken on 28.10.2016 whereby the representation came to be rejected and then the present petition is brought. So in actual terms, though the date has taken place in the year 2000, the request is reagitated and continued to be agitated even in the year 2017, as if it is an absolute right, fundamentally nature in favour of the petitioner.
[20] So this aforesaid background of facts of second category of petitions are also suffering from the vice of delay and laches and practically it is generating a second round of Page 41 of 47 Downloaded on : Fri Sep 13 20:59:45 IST 2019 C/SCA/7759/2016 CAV JUDGMENT litigation which in considered opinion of this Court deserves no encouragement to allow on agitating at every point of time.
[21] The third and last category of this group of petitions is a petition being Special Civil Application No.17608 of 2016 wherein the death has taken place on 28.08.2011 and it appears that application has been submitted on 02.08.2016 thereto for claiming the compensation. In this petition, the decision has not been taken possibly may be on the ground that the present petition is brought along with the present group of petitions. But here since no decision is taken, the Court would not like to comment anything, as the Court is inclined to direct the respondent authorities to consider the case within some time bound schedule, but no opinion is expressed by the Court on merit of the case.
[22] The aforesaid background of facts, peculiar in nature, are sufficient enough to conclude that these group of petitions in which the legal representatives have come out for seeking compassionate employment or lump-sum compensation, as if, it is a fundamental right of a petition. By virtue of the decision as indicated by the Apex Court, this is never to be agitated, as if, its a fundamental right since the same is depending upon several multiple circumstances. Therefore, without showing undue sympathy to petitioners, in considered opinion of this Court, no case is made out for grant of such relief by exercising extraordinary jurisdiction. However, this would not preclude the petitioners from making a last representation and the decision whereof would be binding upon the petitioners and for which at the end of this Page 42 of 47 Downloaded on : Fri Sep 13 20:59:45 IST 2019 C/SCA/7759/2016 CAV JUDGMENT judgment, appropriate direction will be incorporated. But the case does not fall within the periphery of exercise of extraordinary jurisdiction therefore, petition devoid of merit in. The Court is also conscious about the fact that the principle of delay and laches went on to apply and whether the same would prejudice the authority or not. Now here is the case in which the death has taken place much prior to these petitions and over the period of time, the material change must have taken place in the set-up of respondent authorities as well, and therefore, in such a background to command the authorities to consider the case would not be justified in considered opinion of this Court.
[23] So far as challenge to the impugned circular in one of the petition is concerned, it appears that the said challenge is made for the sake of making since the Court found no pleadings with regard to such grievance being raised. It is settled position of law that a plea must be properly pleaded through specific averments and parties cannot be allowed to go beyond the pleadings. In that view of the matter, the challenge to the circular, at this stage of the proceedings, is not entertained by the Court. A reference is made to one of such decision which is in the case of Arikala Narasa Reddy versus Venkata Ram Reddy Reddygari and another reported in AIR 2014 SC 1290, the Court is of the opinion that challenge to the said circular is after thought having no support of pleadings resultantly, not entertained by this Court, however, the said challenge is reserved for an appropriate case in future. The relevant observations contained in paragraphs No.8 and 9, the same are reproduced hereinafter:
Page 43 of 47 Downloaded on : Fri Sep 13 20:59:45 IST 2019 C/SCA/7759/2016 CAV JUDGMENT"8. Before the court permits the recounting, the following conditions must be satisfied:
(i) The court must be satisfied that a prima facie case is established;
(ii) The material facts and full particulars have been pleaded stating the irregularities in counting of votes;
(iii) A roving and fishing inquiry should not be directed by way of an order to re-count the votes;
(iv) An opportunity should be given to file objection;
and
(v) Secrecy of the ballot should be guarded.
9. This Court has consistently held that the court cannot go beyond the pleadings of the parties. The parties have to take proper pleadings and establish by adducing evidence that by a particular irregularity/illegality, the result of the election has been "materially affected". There can be no dispute to the settled legal proposition that "as a rule relief not founded on the pleadings should not be granted". Thus, a decision of the case should not be based on grounds outside the pleadings of the parties. In absence of pleadings, evidence if any, produced by the parties, cannot be considered. It is also a settled legal proposition that no party should be permitted to travel beyond its pleadings and parties are bound to take all necessary and material facts in support of the case set up by them. Pleadings ensure that each side is fully alive to the questions that are likely to be raised and they may have an opportunity of placing the relevant evidence before the court for its consideration. The issues arise only when a material proposition of fact or law is affirmed by one party and denied by the other Page 44 of 47 Downloaded on : Fri Sep 13 20:59:45 IST 2019 C/SCA/7759/2016 CAV JUDGMENT party. Therefore, it is neither desirable nor permissible for a court to frame an issue not arising on the pleadings. The court cannot exercise discretion of ordering recounting of ballots just to enable the election petitioner to indulge in a roving inquiry with a view to fish material for dealing the election to be void. The order of recounting can be passed only if the petitioner sets out his case with precision supported by averments of material facts. (Vide: Ram Sewak Yadav v. Hussain Kamil Kidwai & Ors., AIR 1964 SC 1249; Bhabhi v. Sheo Govind & Ors., AIR 1975 SC 2117; and M. Chinnasamy v. K.C. Palanisamy & Ors., (2004) 6 SCC
341)."
[24] This group of petitions, in which, the petitioners are permitted to make representation, as a last chance, is also keeping in view the circumstances that in some of the petitions, the decisions have not been taken and further as has been agitated that other similarly situated persons have been considered for the benefits and for that purpose, the petitioners have relied upon three decisions delivered by the co-ordinate Bench. Therefore, over all issues will have to be re-examined by the authorities and for that purpose, the Court deems it proper to dispose of this group of petitions with following directions which would meet the ends of justice:
(i) However, since the respondent authorities have indicated that if the petitioners would like to make representation, as a last chance, the authorities may consider the case and re-examined as to whether the petitioners are entitled to such benefits as claimed or not, and therefore, without Page 45 of 47 Downloaded on : Fri Sep 13 20:59:45 IST 2019 C/SCA/7759/2016 CAV JUDGMENT expressing much on the merit of the claim of petitioners, the Court would like to permit the petitioners, as a last chance, to make a specific representation in detail within a period of three weeks from the date of receipt of this order and as and when such representation would be made along with supporting material, the authorities are directed to reconsider and re-examined the case of the petitioners and shall pass an appropriate order in accordance with law. It is also expected that as has been agitated that in similar circumstances, the case having been considered, the Court is expecting that if the present petitioners are identically situated, then the authorities may consider the case of the petitioners in its true spirit.
(ii) Since the authorities are expected to deal with the representation of the petitioners, the same be considered without being influenced by the present judgment and order and considering the length of time, which has taken placed in agitating the issue, it is expected that upon receipt of the representation, as a last chance, the authorities shall take appropriate decision as earlier as possible preferably within a period of 8 weeks from the date of receipt of application alongwith material of the petitions.
(iii) While parting with the present judgment and order, the last submissions which has been emphasized about the validity of the circular in Page 46 of 47 Downloaded on : Fri Sep 13 20:59:45 IST 2019 C/SCA/7759/2016 CAV JUDGMENT question which is in connection with prayer No.6(A) of Special Civil Application No.11400 of 2016, the Court is leaving this issue open for two reasons, one that the Court has directed the respondent authorities to reconsider the case, and secondly, the said challenge is not supported by proper pleadings and the same is at a belated stage and as such in view of this peculiar set of circumstances, since it has not been emphasized emphatically, this issue is left it open without much expressing upon its validity.
[25] With these observations and directions, this group of petitions are disposed of. Rule is made absolute to the aforesaid extent.
Sd/-
(A.J. SHASTRI, J.) DHARMENDRA KUMAR Page 47 of 47 Downloaded on : Fri Sep 13 20:59:45 IST 2019