Rajeshkumar Vishnuprasad Joshi vs State Of Gujarat
2021 Latest Caselaw 10231 Guj

     C/SCA/1837/2014                                       JUDGMENT DATED: 02/08/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 1837 of 2014


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BHARGAV D. KARIA
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1     Whether Reporters of Local Papers may be allowed                          NO
      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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                       RAJESHKUMAR VISHNUPRASAD JOSHI
                                    Versus
                          STATE OF GUJARAT & 1 other(s)
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Appearance:
MS REENA KAMANI FOR MR PH PATHAK(665) for the Petitioner(s) No. 1
MR DHAWAN JAYSWAL, AGP for the Respondent(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 2
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    CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA

                                 Date : 02/08/2021

                                 ORAL JUDGMENT

1. Heard learned advocate Ms. Reena Kamani for learned advocate Mr. P.H. Pathak for the petitioner, learned Assistant Government Pleader Mr. Dhawan Jayswal for the respondent-State and learned advocate Mr. H.S. Munshaw for respondent no.2.

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2. Rule returnable forthwith. Learned Assistant Government Pleader Mr. Dhawan Jayswal waives service of notice of rule on behalf of the respondent-State and learned advocate Mr. H.S. Munshaw waives service of notice of rule on behalf of respondent no.2.

3. By this petition under Article 226 of the Constitution of India, the petitioner has prayed for quashing and setting aside the impugned order dated 23.07.2009 passed by respondent no.1 rejecting the claim of the petitioner for compassionate appointment in place of his deceased father.

4. The facts of case in brief are as under :

4.1) The petitioner's father late Shri Vishnuprasad Joshi was working as a peon with the respondent no.2 - District Panchayat. The petitioner's father expired on 22.11.2007 while on duty leaving behind his widow, two sons and one daughter.

4.2) The petitioner being a legal heir, made an application for compassionate appointment on 24.12.2007 along with relevant documents before the respondents authorities.

4.3) The respondent no.2 addressed a letter dated 2.9.2008 to the Executive Engineer asking for

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further details about the petitioner. The petitioner therefore, submitted all the relevant documents before the respondent authorities. It is the case of the petitioner that the Executive Engineer recommended the case of the petitioner for consideration. However, vide impugned order dated 23.07.2009, the request of the petitioner for compassionate appointment was rejected.

4.4) The request of the petitioner was again rejected vide order dated 25.5.2010. The petitioner therefore, preferred yet another application before the respondents authorities which also came to be rejected by order dated 16.6.2010 confirming the earlier order dated 23.7.2009. Being aggrieved by such action of the respondents authorities, the petitioner has preferred the present petition.

5. The petitioner has also filed a detailed further affidavit on 10.07.2021 explaining the delay in preferring this petition. The petitioner has submitted that the Executive Engineer was fully aware about the family circumstances of the petitioner and therefore, he once again recommended the case of the petitioner but the same was rejected on 16.6.2010. It was submitted that father of the petitioner died due to brain hemorrhage and the family had to spend huge amount for medical treatment and the financial condition of the

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family was not good. The petitioner personally visited the office of the respondents for employment and after getting the details under the Right to Information Act, the petitioner approached the office of the respondents for reconsideration of the case. It was submitted that the mother of the petitioner was doing household work of others and the petitioner and his brother were getting temporary employment as labourers. It was also submitted that there were family disputes and the wife of younger brother of the petitioner who was residing in joint family had separated from the family and the family had to spend sizeable amount between 2011 to 2013 so as to meet with the expenses of the litigation of the younger brother which resulted ultimately into divorce with his wife. The petitioner thereafter approached the learned advocate appearing for the petitioner in the year 2013 and thereafter, this petition was filed.

6. In view of the above explanation, delay caused in filing the petition is condoned.

7. Learned advocate for the petitioner has submitted that the impugned decision of rejecting the claim of the petitioner to grant compassionate appointment on the ground of payment of post death dues of the father of the petitioner and the family pension being paid to

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the family of the petitioner is not tenable in law. Reliance was placed on the judgment dated 05.03.2003 in Special Civil Application No. 5751/2002 and allied matter rendered in case of Jayesh J. Puwar v. General Manager to submit that the proposal for compassionate appointment cannot be denied on the ground of pension and retirement benefits being paid to the concerned Government employee. It was therefore, submitted by the learned advocate for the petitioner that as per the ratio of the said judgment, terminal benefits cannot be considered while deciding the appointment on compassionate ground as such benefits are statutory obligation on part of the employer.

7.1) It was further submitted that the impugned decision suffers from total non application of mind whereby calculation has been arbitrarily and illegally considered contrary to the catena of decisions rendered by the Supreme Court as well as this Court. Reliance was placed on the following decisions of the Supreme Court in support of his submissions :

1) Balbir Kaur and another v. Steel Authority of

Supreme Court Cases 493.

2) Canara Bank and another v. Maheshkumar reported in (2015) 7 Supreme Court Cases 412.

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3) N.C. Santhosh v. State of Karnataka and others reported in (2020) 7 Supreme Court Cases

617.

7.2) Learned advocate for the petitioner relying upon the above decisions submitted that by the impugned order the concept of extending help to the dependent of a deceased employee has been frustrated by virtue of rejection of the claim of the petitioner. It was also submitted that respondents authorities denied the claim for compassionate appointment though the petitioner was in dire need of such appointment for his own survival as well as his family members.

7.3) Learned advocate for the petitioner also referred to the decision of this Court dated 9.11.2009 rendered in Special Civil Application No.6283/2009, order dated 26.9.2017 rendered in Special Civil Application No.11948/2009 and order dated 4.10.2017 rendered in Special Civil Application No.10090/2010 wherein suitable directions were issued by this Court. Learned advocate for the petitioner also relied upon similar set of circumstances in case of Yogendra B. Chauhan v. State of Gujarat wherein this Court followed the catena of decisions in judgment and order dated 29.4.2009 rendered in Special Civil Application

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No.2957/2007.

   7.4)             In      view       of         above         settled            legal
   position,          learned       advocate            for     the      petitioner
   submitted             that    principle              and       ideology             for
   extending          the       help     to       the      dependents             of       a

deceased employee who died during the service would be frustrated if the statutory bodies like the State Government do not follow such pious concept and the appointment on compassionate ground would become concept merely on paper which should not be allowed to be permitted.

8. On the other hand learned Assistant Government Pleader Mr. Dhawan Jayswal for the respondent- State and learned advocate Mr. H.S. Munshaw for respondent no.2 submitted that the petitioner is not entitled to appointment on compassionate ground in view of the guidelines issued by the General Administrative Department and the Government Resolutions dated 10.03.2000 and 29.03.2007. It was submitted that the family of the petitioner has survived after the death of the father of the petitioner in the year 2007 and substantial period is over and therefore, on that ground only there is no necessity to accept the application of the petitioner for appointment on compassionate ground.

8.1) It was also submitted that on the date

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when the application for compassionate appointment was considered by the authority, the family of the petitioner was getting monthly family pension of Rs.3932/- which is more than the income criteria of Rs. 2000/- per month and hence the case of the petitioner was rightly not considered by the respondents-authorities in view of the relevant policy as per Government Resolution dated 26.2.1997 which was in force at the time of date of the application made by the petitioner. It was submitted that considering the peculiar facts and circumstances of the case, the petition deserves to be dismissed.

9. Learned advocate for the petitioner in rejoinder submitted that the Government Resolution dated 10.3.2000 provides that no income is to be considered for compassionate appointment. Relying upon the judgment dated 13.10.2016 passed by this Court in Special Civil Application No.9312/2010, it was submitted by the learned advocate for the petitioner that after considering the various judgments of the Apex Court as well as of this Court, this Court directed the concerned respondents authorities to consider the case of the petitioner in terms of Government Resolution dated 10.3.2000 more particularly, clause 2(i) of the Appendix (I) of the said Government Resolution. It was pointed out that the right of the petitioner seeking compassionate appointment flows from the scheme

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formulated under Article 309 of the Constitution of India and Government Resolution dated 10.3.2000 was formulated under the said Article.

9.1) Learned advocate for the petitioner also relied upon the information received under the Right to Information Act, 2005 about the persons who were appointed on compassionate ground after Government circular dated 29.3.2007 and as per the information supplied by the respondent no.1, 32 persons were given compassionate appointment in District Panchayat, Patan after 2002. It was pointed out that one Jigar Patel who was appointed on compassionate ground was having better financial condition than the petitioner. It was therefore, pointed out that in view of such information, no income limit has been fixed for Panchayat department and therefore, the petitioner cannot be denied the compassionate appointment on the ground of family income.

10. Having heard the learned advocates for the respective parties and having considered the material on record, it is not in dispute that father of the petitioner died while in service on 22.11.2007. It also emerges from the record that the family pension of Rs. 3932/- was being paid at the relevant time to the family of the petitioners.

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11. The Apex Court in series of judgments has reiterated the proposition of law that the compassionate appointment is not a mode of recruitment and the entire object of such appointment is to enable the family members of the deceased employee to meet with sudden vacuum which has arisen due to death of employee and to overcome the financial crisis. The Apex Court in various judgments reiterated that compassionate appointment cannot be granted after a lapse of reasonable period. It would be fruitful to refer to the ratio laid down by the Supreme Court as well as this Court in the following judgments :

1) In case of Balbir Kaur and another v. Steel Authority of India Ltd. and others (supra), the Apex court held as under :

"Mr. Bhasme, learned Advocate appearing for the Steel authority contended that the Family Benefit Scheme was introduced on 21st November, 1992 and the salient features of the Scheme were to the effect that the family being unable to obtain regular salary from the management, could avail of the scheme by depositing the lump sum provident fund and gratuity amount with the company in lieu of which the management would make monthly payment equivalent to the basic pay together with dearness allowance last drawn, which payment would continue till the normal date of superannuation of the employee in question. Mr. Bhasme further contended that adaptation of this Family Benefit Scheme was meant to provide an assured or regular income per month, while the bulk amount deposited by way of provident fund and gratuity with the management remained intact. Mr. Bhasme, contended that consequently on deposits as above, with the management, the employees family could avail of pay up to normal date of superannuation on the footing that the employee though not actually working but notionally continued to work till the normal date of superannuation and such a scheme in fact stands at a much better footing and much more beneficial to an employee or a deceased employee. Apparently these considerations weighed with the High Court and the latter thus proceeded on the basis that by reason of

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adaptation of a Family Benefit Scheme by the Employees Union, question of any departure therefrom or any compassionate appointment does not and cannot arise. But in our view this Family Benefit Scheme cannot be in any way equated with the benefit of compassionate appointments. The sudden jerk in the family by reason of the death of the bread earner can only be absorbed by some lump sum amount being made available to the family This is rather unfortunate but this is a reality. The feeling of security drops to zero on the death of the bread earner and insecurity thereafter reigns and it is at that juncture if some lump sum amount is made available with a compassionate appointment, the grief stricken family may find some solace to the mental agony and manage its affairs in the normal course of events. It is not that monetary benefit would be the replacement of the bread earner, but that would undoubtedly bring some solace to the situation."

2) In case of Canara Bank and another v. M. Mahesh Kumar (Supra), the Apex Court held as under :

"20. In Balbir Kaur & Anr. vs. Steel Authority of India Ltd. & Ors., (2000) 6 SCC 493, while dealing with the application made by the widow for employment on compassionate ground applicable to the Steel Authority of India, contention raised was that since she is entitled to get the benefit under Family Benefit Scheme assuring monthly payment to the family of the deceased employee, the request for compassionate appointment cannot be acceded to. Rejecting that contention in paragraph (13), this Court held as under:-

"13. ....But in our view this Family Benefit Scheme cannot in any way be equated with the benefit of compassionate appointments. The sudden jerk in the family by reason of the death of the breadearner can only be absorbed by some lump-sum amount being made available to the family -- this is rather unfortunate but this is a reality. The feeling of security drops to zero on the death of the breadearner and insecurity thereafter reigns and it is at that juncture if some lump-sum amount is made available with a compassionate appointment, the grief-

stricken family may find some solace to the

C/SCA/1837/2014 JUDGMENT DATED: 02/08/2021

mental agony and manage its affairs in the normal course of events. It is not that monetary benefit would be the replacement of the breadearner, but that would undoubtedly bring some solace to the situation."

21. Referring to Steel Authority of India Ltd.'s case, High Court has rightly held that the grant of family pension or payment of terminal benefits cannot be treated as a substitute for providing employment assistance. The High Court also observed that it is not the case of the bank that the respondents' family is having any other income to negate their claim for appointment on compassionate ground.

22. Considering the scope of the Scheme 'Dying in Harness Scheme 1993' then in force and the facts and circumstances of the case, the High Court rightly directed the appellant-bank to reconsider the claim of the respondent for compassionate appointment in accordance with law and as per the Scheme (1993) then in existence. We do not find any reason warranting interference."

3) In case of N.C. Santhosh v. State of Karnataka and others (supra), the Apex Court held as under :

"13. It is well settled that for all government vacancies equal opportunity should be provided to all aspirants as is mandated under Articles 14 and 16 of the Constitution. However appointment on compassionate ground offered to a dependant of a deceased employee is an exception to the said norms. In Steel Authority of India Limited vs. Madhusudan Das & Ors. 2 It was remarked accordingly that compassionate appointment is a concession and not a right and the criteria laid down in the Rules must be satisfied by all aspirant.

xxx

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18. In the most recent judgment in State of Himachal Pradesh & Anr. vs. Shashi Kumar8 the earlier decisions governing the principles of compassionate appointment were discussed and analysed. Speaking for the bench, Dr. Justice D.Y. Chandrachud reiterated that appointment to any public post in the service of the State has to be made on the basis of principles in accord with Articles 14 and 16 of the Constitution and compassionate appointment is an exception to the general rule. The Dependent of a deceased government employee are made eligible by virtue of the policy on compassionate appointment and they must fulfill the norms laid down by the State's policy."

12. In view of aforesaid law laid down by the Apex Court and this Court in the aforesaid judgments, the respondents cannot be directed after so many years to provide appointment to the petitioner on compassionate ground. However, the respondents can consider the case of the petitioner in view of Government Resolution dated 5.7.2011 to pay the lump-sum amount as the impugned order dated 23.7.2009 is liable to quashed and set aside and therefore, the case of the petitioner can be said to be pending from the said date. Accordingly as per the provisions of the Government Resolution dated 5.7.2011 respondent authorities are hereby directed to pay the lump-sum amount to the petitioner as per the said Government Resolution.

13. The respondent authorities are directed to reconsider the case of the petitioner for

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payment of lump-sum amount in view of Government Resolution dated 5.7.2011. Such exercise shall be completed within a period of 12 weeks from the date of receipt of this order.

14. Rule is made absolute to the aforesaid extent with no order as to costs.

(BHARGAV D. KARIA, J) RAGHUNATH R NAIR