Gujarat High Court
Virendra S/O Kalubhai Sitapara vs Jetpur Navagadh Nagar Palika on 16 January, 2023
Author: A.Y. Kogje
Bench: A.Y. Kogje
NEUTRAL CITATION
C/SCA/5724/2021 JUDGMENT DATED: 16/01/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5724 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 5735 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.Y. KOGJE
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1 Whether Reporters of Local Papers may be No
allowed to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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VIRENDRA S/O KALUBHAI SITAPARA
Versus
JETPUR NAVAGADH NAGAR PALIKA
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Appearance:
MR ANAND B GOGIA(5849) for the Petitioner(s) No. 1
MR RB GOGIA(5850) for the Petitioner(s) No. 1
MS MUSKAN A GOGIA(6624) for the Petitioner(s) No. 1
MR BHAVESH P TRIVEDI(2731) for the Respondent(s) No. 1
MR RR TRIVEDI(941) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
Date : 16/01/2023
ORAL JUDGMENT
Page 1 of 11
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NEUTRAL CITATION C/SCA/5724/2021 JUDGMENT DATED: 16/01/2023 undefined [1] Rule. Learned advocate Mr. Bhavesh Trivedi waives service of rule on behalf of respondent.
[2] These two petitions are arising out of identical facts and are raising similar contentions and hence, are taken up for joint hearing and disposal. The facts are recorded from lead matter being Special Civil Application No.5724 of 2021.
[3] This petition under Article 226 of the Constitution of India is filed seeking direction to set aside the decision of the respondent municipality dated 06.11.2020 and seek further direction, declaring that the petitioner is eligible for appointment on compassionate ground.
[4] Learned advocate for the petitioner submitted that father of the petitioner was working with the respondent municipality as 'Safai Kamdar' prior to 1986 and had raised an industrial dispute being reference I.T.No.23 of 1995 for claiming permanency/regularization. It is submitted that the reference was allowed in favour of father of the petitioner.
[4.1] The aforesaid was subject matter of challenge by the respondent-Nagar Palika before this Court in Special Civil Application as well as Letters Patent Appeal, but the same came to be dismissed, thereby ultimately confirmed the order of regularization. It is submitted that the respondent took the decision for regularization on 10.08.2020 and the services of the father of the petitioner came to be regularized w.e.f. 02.12.1986. However, in the meantime, the father of the petitioner expired pending the process for regularization on 27.08.2018 and therefore, the petitioner had made an application for appointment on compassionate ground.
Page 2 of 11 Downloaded on : Sun Sep 17 20:51:05 IST 2023NEUTRAL CITATION C/SCA/5724/2021 JUDGMENT DATED: 16/01/2023 undefined [5] Learned advocate for the petitioner submits that the impugned order of rejecting the application for compassionate ground was that the policy under Government Resolution dated 18.10.2017 for the purpose of compassionate appointment will not apply to the petitioner as such the scheme is applicable only to the permanent employees. It is submitted that the respondent-Nagarpalika had committed an error by not treating the father of the petitioner as regular/permanent employee despite the award of the Labour Court directing as such.
[6] Learned advocate for the petitioner drew attention of this Court to the award of the Labour Court as well as the order of this Court, wherein the award was challenged and submitted that it is not open for the respondent-Nagarpalika to go beyond the award of the Labour Court, which is confirmed by this Court. Learned advocate submitted that the father of the petitioner rendered long service and therefore, also the petitioner is required to be treated as an eligible candidate for compassionate appointment.
[7] As against this, learned advocate for the respondent- corporation has submitted that much time has lapsed after the death of the father of the petitioner and therefore, at this stage, after lapse of 5 years there cannot be any appointment on compassionate ground. It is submitted that the appointment on compassionate ground cannot be treated to be an alternative mode of employment and petitioner is required to compete in open so that the rights of other citizens to seek employment is not affected. Learned advocate has also raised a contention regarding delay in making an application for appointment on compassionate ground by referring to the provisions under the scheme itself stating that the petitioner was major at the relevant time and was therefore, Page 3 of 11 Downloaded on : Sun Sep 17 20:51:05 IST 2023 NEUTRAL CITATION C/SCA/5724/2021 JUDGMENT DATED: 16/01/2023 undefined required to make an application within a period of six months of the death of the employee.
[8] In rejoinder, learned advocate for the petitioner submitted that the case of the petitioner was not rejected on the ground of delay in making the application, but only on the ground that the respondent-father of the petitioner was not a permanent or regular employee and therefore, the respondent corporation cannot expand this scope. He has also relied upon the decision of Full Bench of Uttarakhand in this connection in the case of Namrata Sharma v/s. The Director General of Department of Medical Health and others in Writ Petition No.1214 of 2021 to specifically answer the query of the Court as to whether the period provided in the scheme for making an application upon a death can be challenged to include any other subsequent event like order of regularization in the present case for the year 2020.
[9] The Court has heard learned advocates for the parties and perused the documents placed on record. Both the parties sought time and were granted so as to make statement on the issue of time frame to make application also. At the outset, it would be appropriate to refer to the decision of Apex Court on the issue of compassionate ground as time and again the Apex Court has held that the appointment on compassionate ground cannot be treated as an alternative employment channel as it directly affects the chance of other individuals to claim appointment on merits. Moreover, such compassionate appointment policies are framed so as to enable the bereaved family to tide over the immediate difficulties that such family would face and therefore, in the present case, considering the chronology of events, father of the petitioner having expired in the year 2018, the application being made on 07.09.2020 cannot be Page 4 of 11 Downloaded on : Sun Sep 17 20:51:05 IST 2023 NEUTRAL CITATION C/SCA/5724/2021 JUDGMENT DATED: 16/01/2023 undefined treated to be an application for employment on compassionate ground to tide over the immediate difficulties that the family would face. The Apex Court in the case of Fertilizers and Chemicals Travancore Ltd and others v/s. Anusree K.B., reported in 2022 Live Law (SC) 819, has held as under:-
"8. As per the law laid down by this Court in catena of decisions on the appointment on compassionate ground, for all the government vacancies equal opportunity should be provided to all aspirants as mandated under Articles 14 and 16 of the Constitution. However, appointment on compassionate ground offered to a dependent of a deceased employee is an exception to the said norms. The compassionate ground is a concession and not a right.
8.1 In the case of State of Himachal Pradesh and Anr. Vs. Shashi Kumar reported in (2019) 3 SCC 653, this Court had an occasion to consider the object and purpose of appointment on compassionate ground and considered the decision of this Court in the case of Govind Prakash Verma Vs. LIC, reported in (2005) 10 SCC 289, in paras 21 and 26, it is observed and held as under:-
"21. The decision in Govind Prakash Verma [Govind Prakash Verma v. LIC, (2005) 10 SCC 289, has been considered subsequently in several decisions. But, before we advert to those decisions, it is necessary to note that the nature of compassionate appointment had been considered by this Court in Umesh Kumar Nagpal v. State of Haryana [Umesh Kumar Nagpal v. State of Haryana, (1994) 4 SCC 138]. The principles which have been laid down in Umesh Kumar Nagpal [Umesh Kumar Nagpal v. State of Haryana, (1994) 4 SCC 138] have been subsequently followed in a consistent line of precedents in this Court. These principles are encapsulated in the following extract: (Umesh Kumar Nagpal case [Umesh Kumar Nagpal v. State of Haryana, (1994) 4 SCC 138], SCC pp. 139-40, para 2)
"2. ... As a rule, appointments in the public services should be made strictly on the basis of open invitation of applications and merit. No other mode of appointment nor any other consideration is permissible. Neither the Governments nor the public authorities are at liberty to follow any other procedure or relax the Page 5 of 11 Downloaded on : Sun Sep 17 20:51:05 IST 2023 NEUTRAL CITATION C/SCA/5724/2021 JUDGMENT DATED: 16/01/2023 undefined qualifications laid down by the rules for the post. However, to this general rule which is to be followed strictly in every case, there are some exceptions carved out in the interests of justice and to meet certain contingencies. One such exception is in favour of the dependants of an employee dying in harness and leaving his family in penury and without any means of livelihood. In such cases, out of pure humanitarian consideration taking into consideration the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made in the rules to provide gainful employment to one of the dependants of the deceased who may be eligible for such employment. 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. What is further, mere death of an employee in harness does not entitle his family to such source of livelihood. The Government or the public authority concerned has to examine the financial condition of the family of the deceased, and it is only if it is satisfied, that but for the provision of 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. The posts in Classes III and IV are the lowest posts in non- manual and manual categories and hence they alone can be offered on compassionate grounds, the object being to relieve the family, of the financial destitution and to help it get over the emergency. The provision of employment in such lowest posts by making an exception to the rule is justifiable and valid since it is not discriminatory. The favourable treatment given to such dependant of the deceased employee in such posts has a rational nexus with the object sought to be achieved viz. relief against destitution. No other posts are expected or required to be given by the public authorities for the purpose. It must be remembered in this connection that as against the destitute family of the deceased there are millions of other families which are equally, if not more destitute. 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."
26. The judgment of a Bench of two Judges in Mumtaz Yunus Mulani v. State of Maharashtra [(2008) 11 SCC 384] has adopted the principle that appointment on compassionate grounds is not a source of recruitment, but a means to enable the family of the deceased to get Page 6 of 11 Downloaded on : Sun Sep 17 20:51:05 IST 2023 NEUTRAL CITATION C/SCA/5724/2021 JUDGMENT DATED: 16/01/2023 undefined over a sudden financial crisis. The financial position of the family would need to be evaluated on the basis of the provisions contained in the scheme. The decision in Govind Prakash Verma [Govind Prakash Verma v. LIC, (2005) 10 SCC 289 : 2005 SCC (L&S) 590] has been duly considered, but the Court observed that it did not appear that the earlier binding precedents of this Court have been taken note of in that case."
"9. Thus, as per the law laid down by this Court in the aforesaid decisions, compassionate appointment is an exception to the general rule of appointment in the public services and is in favour of the dependents of a deceased dying in harness and leaving his family in penury and without any means of livelihood, and in such cases, out of pure humanitarian consideration taking into consideration the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made in the rules to provide gainful employment to one of the dependants of the deceased who may be eligible for such employment. 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 such family a post much less a post held by the deceased."
[10] The Supreme Court in case of State of Madhya Pradersh and others v/s. Amit Shrivas, reported in (2020) 10 SCC 496, has held in para-16 and 17 as under:-
"16. It is trite to say that there cannot be any inherent right to compassionate appointment but rather, it is a right based on certain criteria, especially to provide succor to a needy family. This has to be in terms of the applicable policy as existing on the date of demise, unless a subsequent policy is made applicable retrospectively.Insofar as providing succor is concerned, unfortunately, since the demise of the late father of the respondent, 11 years have passed and really speaking, the aspect of providing succor to the family immediately does not survive. We have still examined the matter in the conspectus of the applicable policy. It is not in question that the Policy prevailing was one dated 18.8.2008. Clause 12.1 clearly proscribes work- charge/contingency fund and daily wager employees from compassionate appointment. The gravamen of the submission of the respondent is based on the classification of his late father as a permanent employee on account of having worked for more than 15 years and the consequent regularisation of his service.
17. In our view, the aforesaid plea misses the point of distinction between a work-charged employee, a permanent employee and a Page 7 of 11 Downloaded on : Sun Sep 17 20:51:05 IST 2023 NEUTRAL CITATION C/SCA/5724/2021 JUDGMENT DATED: 16/01/2023 undefined regular employee. The late father of the respondent was undoubtedly a work- charged employee and it is nobody's case that he has not been paid out of work-charged/contingency fund. He attained the status of a permanent employee on account of having completed 15 years of service, which entitled him to certain benefits including pension and krammonati. This will, however, not ipso facto give him the status of a regular employee."
[11] In the facts of the present case, the father of the petitioner was working with the respondent municipality as 'Safai Kamdar' and had raised an industrial dispute before an Industrial Tribunal claiming permanency and monetary benefits as per the Government Rules and Regulation. The Labour Court has allowed the reference, wherein the specific direction with regard to the status of their service would read as under:-
"It is ordered that, the Pay Grade of these employee shall be determined considering the date when the employees joined the services of the Respondent-Municipality and from the date since when they have been performing duties similar to a permanent employee on an equivalent post and the minimum Pay Grade of such post be considered as the Notional Pay. Further, the Notional Pay shall be fixed as per the increments given in such Pay Grade from time to time. Accordingly, within 30 days of publishing this award, Pay of the concerned employees performing duties in the category of Sanitation Worker shall be fixed and the employees shall be rendered the Pay, i.e. as per the Grade Pay, Dearness Allowance, other allowances and other entitled benefits. Additionally, I order that, as the Pay of these employees has been fixed on Notional Pay basis, the concerned employees shall not be entitled to any differential amount for the intervening time period."
[12] This award was a subject matter of challenge in Special Civil Application No.18811 of 2016 by the respondent-municipality and also in Letters Patent Appeal No.1143 of 2018. At both the stages, challenge by the respondent municipality had failed. The award Page 8 of 11 Downloaded on : Sun Sep 17 20:51:05 IST 2023 NEUTRAL CITATION C/SCA/5724/2021 JUDGMENT DATED: 16/01/2023 undefined dated 26.02.2016 was challenged in Special Civil Application which was decided on 06.02.2018 and Letters Patent Appeal was decided on 28.03.2019 however, on 27.08.2018 the father of the petitioner expired.
[12.1] From the record, it appears that after having lost before this Court, the process of grant of benefit as per the award was initiated and ultimately by an order dated 20.08.2018, benefit of the award was given to the father of the petitioner (since deceased) and it is only thereafter on 07.09.2020, that application was filed by the petitioner for appointment on compassionate ground.
[13] Though the impugned order dated 06.11.2020 only refers to the ground for rejection being father of the petitioner not being permanent employee, even if such ground is considered against what has been held by this Court in several decisions for considering the employee ordered to reinstate by the Labour Court to be regular employee, but the moot issue of invoking provisions for compassionate appointment has to be examined in light of what is provided under the scheme. Clause-7 of the scheme dated 18.10.2017 would read as under:-
"7 Time limit for submitting an application:
(a) As per the policy of the scheme, an application complete in all respect is to be filed immediately on the death of concerned Safai Kamdar for getting compassionate appointment. Application filed after a period of six months of the death of concerned Safai Kamdar in any way will not be considered."
[14] The aforesaid clause provides for making an application within a period of six months of the death and therefore, the Page 9 of 11 Downloaded on : Sun Sep 17 20:51:05 IST 2023 NEUTRAL CITATION C/SCA/5724/2021 JUDGMENT DATED: 16/01/2023 undefined relevant date for invoking provisions and the claim for compassionate ground would always be the date of the expiry of the employee, which in the present case is 27.08.2018.
[14.1] The attempt on the part of the petitioner is to consider the application dated 07.09.2020 within a period of six months by treating the date on which the order was passed for granting benefit of the award of the Labour Court i.e. 10.10.2020 to be the relevant date, cannot be accepted.
[14.2] Firstly, the very facts for adopting the scheme for compassionate appointment is laid down in various decisions of the Apex Court is to tide over the immediate difficulties that the bereaved family would face. Secondly, the provisions of grant of compassionate appointment have to be applied strictly as appointment by compassionate appointment is exception to Article 14 of the Constitution of India. The Court is therefore, of the view that the only relevant date for invoking the provisions of scheme for compassionate appointment would be the date on which the employee has expired. Reliance is placed by the petitioner on the decision in case of Namrata Sharma (Supra). It would be pertinent to observe that the aforesaid decision was rendered in special facts of the case where the challenge was to non-inclusion of married daughter from in Rule 2(c) of the Dying in Harness Rules, 1974 as being violative of Articles 14 and 15 of the Constitution of India and therefore, when such non-inclusion was held to be in violation of the Constitution, special provisions was made to accept the application under the rules from the married daughter by considering the date of the Full Bench decision dated 25.03.2019 as a relevant date as prior thereto married daughter had no opportunity to make an application for appointment on Page 10 of 11 Downloaded on : Sun Sep 17 20:51:05 IST 2023 NEUTRAL CITATION C/SCA/5724/2021 JUDGMENT DATED: 16/01/2023 undefined compassionate ground. Such facts have completely at variance from the facts of the present case would not help the case of the petitioner. Similarly, when the petitioner has also placed reliance on the unreported decision in case of C.Murugasen v/s. Animal Husbbandry Diaries and Fisheries Department and others in W.A.No.1298 of 2015 dated 13.10.2017, it would be appropriate to refer to the paras stated in the said decision, wherein the reference is made yet another decision and direction is given for giving the benefit of the aforesaid decision in case of R.Laxmi v/s. The Chief Engineer (Personnel), Tamil Nadu Electricity Board, Chennai reported in 2012 (3) LLN 681 (DB) (Mad.). No further details bringing out the circumstance under which the decision in case of has been R.Laxmi (Supra) has been brought on the notice of this Court. Suffice it to say that the aforesaid decision again pertaining to the issue of treating the status of an employee after the award of the Labour Court to be an employee regularized in service.
[15] Considering the chronology of dates and the provision of scheme for appointment on compassionate ground, the Court is of the view that no case is made out to invoke Article 226 of the Constitution of India to direct the appointment of the petitioner on compassionate ground. The petitions therefore, are hereby dismissed.
(A.Y. KOGJE, J) SIDDHARTH Page 11 of 11 Downloaded on : Sun Sep 17 20:51:05 IST 2023