Nasimbanu Indrishkhan Pathan vs Divisional Controller
2021 Latest Caselaw 1571 Guj

       C/SCA/9147/2016                              JUDGMENT




    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD


    R/SPECIAL CIVIL APPLICATION NO. 9147 of 2016


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE UMESH A. TRIVEDI

======================================

1   Whether Reporters of Local Papers may be
    allowed to see the judgment ?

2   To be referred to the Reporter or not ?

3   Whether their Lordships wish to see the fair
    copy of the judgment ?

4   Whether this case involves a substantial
    question of law as to the interpretation of the
    Constitution of India or any order made
    thereunder ?

======================================
       NASIMBANU INDRISHKHAN PATHAN & 1 other(s)
                          Versus
            DIVISIONAL CONTROLLER & 1 other(s)
======================================
Appearance:
MR DIPAK R DAVE(1232) for the Petitioner(s) No. 1,2
MR SHALIN MEHTA, SENIOR ADVOCATE for MR HEMANG M
SHAH(5399) for the Respondent(s) No. 1,2
======================================
CORAM: HONOURABLE MR. JUSTICE UMESH A. TRIVEDI


                         Date : 03/02/2021

                         ORAL JUDGMENT

         C/SCA/9147/2016                                                JUDGMENT




[1.0]         By way of this petition, petitioners challenge the

order dated 27.05.2015, whereby the application made by the heirs of deceased - Indrishkhan Pathan, who died on 08.06.2003 while in service, was rejected on the ground that the application for appointment on compassionate ground was made beyond two years as provided under the Scheme, and therefore, they are not entitled for the same. In the alternative the petitioners have prayed for consideration of their case for the purpose of financial assistance as per Government Resolutions dated 05.07.2011 and 13.10.2015.

[2.0] As per the case of petitioner no.1, husband of petitioner no.1, died on 08.06.2003 while in service, as Art-C Mechanic with respondent - Corporation since 14.11.1970. As averred in the petition, the petitioners were never informed by the respondents that they have a right to get compassionate appointment in view of death of the husband of petitioner no.1 and father of petitioner no.2. However, petitioner no.1 made an application on 27.07.2009 informing the respondent - Corporation that petitioners nos.1 and 2 are heirs of deceased and they reserve their right to have the benefits of the Scheme of the respondent - Corporation offering compassionate appointment since petitioner no.2 was minor. It is further mentioned in it that petitioner no.2 is still minor, however, at the bottom of the application dated 27.07.2009, date of birth of petitioner no.2 is mentioned to be 06.11.1987. Thereafter also, petitioners have communicated to the respondent vide communications dated 03.12.2010, 11.03.2011 and 25.08.2014 to consider their case for compassionate appointment under the Scheme. However, vide

C/SCA/9147/2016 JUDGMENT

communication dated 27.05.2015, the application of the petitioners came to be rejected on the ground that it is not moved within the period of limitation as prescribed under the Scheme.

[3.0] Shri Dipak Dave, learned advocate for the petitioners, submitted that though the first application came to be made in the year 2009, respondent - Corporation did not find any time to respond to the application. On one hand, application of the petitioners, may be according to the Scheme, was rejected on the ground of delay. The Scheme does not stipulate any limitation for response of the Department to the dependents of the employee who died in harness, and therefore, he has submitted that even if the Scheme prescribes any period of limitation, it should not have been rejected on the ground that it has been applied beyond the time prescribed. He has further submitted that petitioners understood the age of majority to be 21 years, and therefore, under that belief they had communicated on 27.07.2009 to have the compassionate appointment and to reserve their right to apply as and when petitioner no.2 becomes major. Since the petitioners are illiterate, they could not apply within the time and they were not made aware of such period of limitation prescribed under the Scheme.

[3.1] Shri Dave, learned advocate for the petitioners, further submitted that rejection of the application vide communication dated 27.05.2015 refers about only one application made on 25.08.2014. However, drawing attention of the Court to the application dated 25.08.2014, he has submitted that the said communication refers about all the

C/SCA/9147/2016 JUDGMENT

applications made by them since 27.07.2009. He has further submitted that vide Resolution dated 17.05.2014, which is applicable to the respondent - Corporation, the policy for compassionate appointment has come to be replaced providing lumpsum financial assistance in lieu of employment. Drawing attention to the Scheme, which is annexed with the affidavit-in-reply of the respondent, which is at page 83, more particularly at page 86, it is provided that the dependents, of the employee, who have died prior to 05.07.2011 and their cases are pending consideration they are to be dealt with as per the Scheme dated 17.05.2014 offering option to the dependents of lumpsum financial assistance. The said option is to be effective for a period of six months only. If no response to such option is made, it will not be taken into consideration and no such lumpsum payment would be made to them. He has submitted that no such option is ever offered to the petitioners though their application is considered and rejected on 27.05.2015 i.e. much after the aforesaid Scheme dated 17.05.2014. He has further submitted that as per the new Scheme, which has replaced the earlier Scheme, there is no time limit prescribed for making such an application. According to his submission, it only provides validity of option of acceptance of financial assistance to be six months after it is offered by the respondent - Corporation and if no option is accepted within that period, no such financial assistance is to be given to them, and therefore, he has submitted that the order impugned cannot be sustained, and therefore, the petition is required to be allowed either by directing the respondent - Corporation to offer implementation as per the Scheme or payment of lumpsum financial assistance according to it.

         C/SCA/9147/2016                                    JUDGMENT




[3.2]         Shri Dave, learned advocate for the petitioner,

submitted that though the petitioners applied long back for compassionate appointment it was not considered for a considerable period, however, it has come to be rejected on 27.05.2015. According to his submission, as on that date, the earlier Scheme was substituted by a different Scheme dated 17.05.2014 providing for lumpsum financial aid in lieu of compassionate appointment, and therefore, relying on the decision in the case of N.C. Santhosh Vs. State of Karnataka and Others reported in (2020) 7 SCC 617, more particularly, paragraph 19 thereof submitted that when the application for compassionate appointment was taken up for consideration by the respondent - Corporation, the norms prevailing on the date of consideration of application would be basis for considering claim for compassionate appointment. Therefore, he has submitted that the day on which his application is considered, lumpsum financial assistance in lieu of compassionate appointment was in vogue, and therefore, the petitioners are entitled to at least get such financial assistance in view of the prevailing Scheme at that time.

[4.0] As against that, Shri Shalin Mehta, Senior Advocate, learned Counsel assisted by Shri Hemang Shah, learned advocate for the respondent - Corporation, submitted that the application made by the petitioners for compassionate appointment according to the old Scheme was beyond the time prescribed, and therefore, it is submitted that the petitioners are not entitled to have their case considered for the purpose of offering compassionate appointment. It is further submitted that the very application dated 27.07.2009

C/SCA/9147/2016 JUDGMENT

reflects that petitioner no.2 was more than 18 years i.e. major as on the date when she applied with her mother for compassionate appointment. According to the learned Counsel, within two years of attaining majority, petitioner no.2 was to apply for compassionate appointment. According to her date of birth recorded in the application, she attained majority on 06.11.2005. However, the application came to be made for the first time on 27.07.2009, which is approximately two years beyond the prescribed period of two years. Thus, she should have applied for compassionate appointment under the Scheme on or before 06.11.2007 whereas for the first time it has been applied for on 27.07.2009, and therefore, the authority has rightly rejected the application made by the petitioners.

[4.1] Shri Shalin Mehta, learned Counsel, further submitted that the provision made in the new Scheme, which offers lumpsum financial assistance in lieu of compassionate appointment provides for consideration of pending applications, who have applied prior to 05.07.2011 i.e. death of employee occurred prior to it, offering them option to accept lumpsum financial assistance. However, pending applications mentioned therein should be construed to be application made well within the requirement under the old Scheme. He has further submitted that even pending applications under the old Scheme prior to 05.07.2011, all the dependents, of employee who died prior thereto, which is hopelessly time barred cannot be expected to be considered by the respondent - Corporation for payment of lumpsum financial assistance. He has further submitted that the person, who is even not entitled for such appointment under the old Scheme, is not expected to be

C/SCA/9147/2016 JUDGMENT

offered financial assistance in lieu of compassionate appointment, and therefore, on that ground also the alternative prayer made by the petitioners cannot be granted, and therefore, he has submitted that the petition be rejected.

[4.2] Shri Shalin Mehta, Senior Advocate, learned Counsel relying on the very same decision relied on by Shri Dave, learned advocate for the petitioner in the case of N.C. Santhosh (Supra), more particularly, paragraph 13 submitted that the compassionate appointment is a concession and not a right and the criteria laid down in the Scheme must be satisfied by all aspirants. Relying on the latter part of paragraph 19 of the aforesaid decision, he submitted that the application when made must fulfill all the criterias mentioned in then prevailing Scheme. According to his submission, if the application made by the aspirants does not fulfill the criterias mentioned therein as per the prevailing Scheme on the date of application, those aspirants, whose application is liable to be rejected on the ground of non-fulfillment of the criterias mentioned therein, cannot claim even lumpsum payment as per the existing Scheme on the date of consideration. Therefore he has submitted that the petition is required to be rejected.

[5.0] Heard learned advocates for the appearing parties. So far as the law on compassionate appointment is concerned, it is very clear that the applications made by the aspirants under the Scheme must fulfill all the criterias provided therein. The compassionate appointment is not the source of recruitment and basically it is concession granted to them and not a right.

          C/SCA/9147/2016                                             JUDGMENT




[5.1]          Considering the case of the petitioners, the day on

which the petitioners applied for compassionate appointment the Scheme from date 01.08.1987 to 31.07.1992, pursuant to labour settlement was in existence. That Scheme, more particularly Clause 30 thereof, provides application for compassionate appointment to be made within two years after dependent attains majority. Misconstruing the age of majority to be 21 years by the petitioners would not come to their rescue. As such, according to the prevailing law, age of majority would be 18 years. The date on which first the petitioners claim to have applied for compassionate appointment is after petitioner no.2 attained the age of majority and beyond two years even thereafter. Thus, the applications made by the petitioners are clearly time barred, and therefore, the respondent - Corporation could not have considered that applications for the purpose of compassionate appointment under then prevailing Scheme. The law on compassionate appointment is very clear by now. A person seeking compassionate appointment under the Scheme of an employer has to fulfill all the criterias enumerated in the Scheme. In the present case, the Scheme of the respondent - Corporation provides making of an application for the purpose of compassionate appointment within ten years of the death of an employee and he must attain the age of majority. In short, if the person seeking compassionate appointment attains majority beyond 10 years of the death of the employee, he is not entitled to make such an application. At the same time, the aspirant is supposed to make an application for compassionate appointment within two years after he attains the age of majority i.e. 18 years. This Court has in two of its

C/SCA/9147/2016 JUDGMENT

decisions considered the very Scheme of the respondent - Corporation in Special Civil Application Nos.17472 of 2003 and 16698 of 2016 and concluded that once the time limit for making an application for appointment on compassionate ground expired, it cannot be extended without there being any provision in the Scheme. In Special Civil Application No.16698 of 2016, this Court did not entertain the petition on the ground that the application for compassionate appointment was moved only three months and five days beyond the prescribed period of two years. Thus, a person seeking compassionate appointment has to fulfill all the criterias including the criteria of limitation to make an application within prescribed time, if it is not made within the time prescribed it is required to be rejected.

[5.2] The alternative submission made by Shri Dave, learned advocate for the petitioners is that the respondent - Corporation be directed to consider the case of the petitioners for the purpose of financial assistance as per Government Resolutions dated 05.07.2011 and 13.10.2015. However, the Government Resolution dated 05.07.2011, which is at page 35 of the compilation, is a Scheme promulgated by the State authority for its employees in respect of lumpsum financial assistance whereas Government Resolution dated 13.10.2015 is not produced on record by the learned advocate for the petitioner. However, since that Government Resolution would apply to the employees of the State Government, the Scheme for lumpsum financial aid dated 17.05.2014 applicable to the employees of the respondent - Corporation is placed on record by way of Annexure to the affidavit-in-reply filed by the respondent - Corporation. It appears that the said Scheme

C/SCA/9147/2016 JUDGMENT

annexed is typed copy of the Resolution dated 17.05.2014. However, Clauses in the Scheme though not happily worded, it provides that pending cases as on 05.07.2011 of dependents of employee dying in harness would be given an option of lumpsum financial assistance. The limitation for acceptance of the said option is prescribed to be six months. As such, the application of the petitioners, who are dependents of employee dying in harness prior to 05.07.2011 is taken up for consideration on 27.05.2015, and therefore, according to the existing policy dated 17.05.2014 their case is required to be considered by the respondent - Corporation.

[5.3] If the respondent - Corporation would have determined the application of the petitioners for compassionate appointment prior to coming into force of new policy dated 17.05.2014 things would have been different. As such, though the Scheme provides time limit for making an application for compassionate appointment, unfortunately it does not provide any limitation for determination of it by the employer. At times, it creates a situation like the present case that the consideration of application, made by the petitioners when old Scheme was not in existence after about a year of bringing in place policy dated 17.05.2014 providing lumpsum financial assistance to the dependents of the employee dying in harness. Without entering into any further debate on the issue in view of the decision in the case of N.C. Santhosh (Supra) and the alternative prayer prayed for by the petitioners for lumpsum financial assistance in lieu of compassionate appointment as per the existing policy, it is desirable that the respondent - Corporation be directed to consider the case of the petitioners, as per present existing

C/SCA/9147/2016 JUDGMENT

policy dated 17.05.2014 in accordance with law. Therefore, decision dated 27.05.2015 of the respondent - Corporation is quashed and set aside and it is remanded back to it for consideration in view of decision in the case of N.C. Santhosh (Supra), The respondent - Corporation is directed to decide the said issue as aforesaid within a period of three months from the receipt of the writ of this Court or production of certified copy by the petitioners before it.

[6.0] With this, the present petition is disposed of as it is allowed to the aforesaid extent only.

(UMESH A. TRIVEDI, J.)

siji