Gujarat High Court
Bhumikaba Vijaysinh Rathod vs Guru Gobindsingh Hospital on 30 July, 2021
Bench: A.S. Supehia
C/SCA/10174/2021 ORDER DATED: 30/07/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10174 of 2021
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BHUMIKABA VIJAYSINH RATHOD
Versus
GURU GOBINDSINGH HOSPITAL
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Appearance:
MR UT MISHRA(3605) for the Petitioner(s) No. 1
for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
Date : 30/07/2021
ORAL ORDER
1. The present writ petition has been filed seeking quashing
and setting aside of the letter dated 21.04.2016. The prayer
itself would suggest that the petition has been filed after a
delay of 6 years, in challenging the communication dated
21.04.2016. The Court has perused the impugned
communication dated 21.04.2016. The said communication, on
the contrary asks the petitioner to submit necessary affidavit
for claiming the financial assistance as prescribed by the State.
The petitioner, instead of complying with the request made by
the respondent authorities for supplying necessary papers has
slept on her rights and all of a sudden, the present writ petition
has been filed seeking setting aside and quashing of the letter
dated 21.04.2016. The petitioner wants the benefit of
compassionate appointment.
2. It is not in dispute that the husband of the petitioner
passed away on 09.09.2011, while in service, and on
28.09.2011, the petitioner made a request for compassionate
C/SCA/10174/2021 ORDER DATED: 30/07/2021
appointment and by the impugned communication, the
petitioner was asked to supply necessary documents as per
the Government Resolution dated 05.07.2011, which pertains
to the scheme of granting lump sum compensation to the heirs
of the deceased employees. Thus, the petitioner wants
compassionate appointment instead of lump sum
compensation. It is also not in dispute that the scheme for
granting the lump sum compensation was introduced vide a
Government Resolution dated 05.07.2011, whereas prior to
that, the scheme of granting compassionate appointment was
prevalent. The application is made on 28.09.2011 by the
present petitioner claiming compassionate appointment. Thus,
the application is made after the promulgation of the scheme
dated 05.07.2011 of granting the lump sum compensation. At
this stage, it would be appropriate to refer to the decision of
the Supreme Court reported in 2020 Volume 7 SCC 617 in case
of N.C. Santhosh vs. State of Karnataka and Ors. Since there
were contrary judgments on the issue of considering the date
of the applications filed by the heirs for the compassionate
appointment, the Supreme Court after examining the law has
held thus:
"19. Applying the law governing compassionate
appointment culled out from the above cited judgments, our
opinion on the point at issue is that the norms, prevailing on
the date of consideration of the application, should be the
basis for consideration of claim for compassionate
appointment. A dependent of a government employee, in the
absence of any vested right accruing on the death of the
government employee, can only demand consideration of his/
her application. He is however disentitled to seek
consideration in accordance with the norms as applicable, on
the day of death of the government employee."
3. Thus, the Supreme Court has held that a dependent of
the Government employee in the absence of any vested right
C/SCA/10174/2021 ORDER DATED: 30/07/2021
accruing on the death of the Government employee, can only
demand consideration of his application. He is however
disentitled to seek consideration in accordance with the norms
as applicable, on the day of death of the Government
employee and his case is required to be decided as per the
norms prevailing on the date of filing of the application.
4. It would be apposite also to refer to the decision of the
Supreme Court in case of Central Coalfields Ltd. Vs. Smt.
Parden Oraon reported in AIR 2021 2876, wherein it has been
observed thus:
"8. The whole object of granting compassionate appointment
is to enable the family to tide over the sudden crisis which
arises due to the death of the sole breadwinner. The mere
death of an employee in harness does not entitle his family to
such source of livelihood. The 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 the job is offered to the eligible member of the family. It
was further asseverated in the said judgment that
compassionate employment cannot be granted after a lapse
of reasonable period as the consideration of such
employment is not a vested right which can be exercised at
any time in the future. It was further held that the object of
compassionate appointment is to enable the family to get
over the financial crisis that it faces at the time of the death
of sole breadwinner, compassionate appointment cannot be
claimed or offered after a significant lapse of time and after
the crisis is over.
9. We are in agreement with the High Court that the reasons
given by the employer for denying compassionate
appointment to the Respondent's son are not justified. There
is no bar in the National Coal Wage Agreement for
appointment of the son of an employee who has suffered civil
death. In addition, merely because the respondent is working,
her son cannot be denied compassionate appointment as per
the relevant clauses of the National Coal Wage Agreement.
However, the Respondent's husband is missing since 2002.
Two sons of the Respondent who are the dependents of her
husband as per the records, are also shown as dependents of
the Respondent. It cannot be said that 1 Umesh Kumar
C/SCA/10174/2021 ORDER DATED: 30/07/2021
Nagpal vs. State of Haryana, (1994) 4 SCC 138 7 | Page there
was any financial crisis created immediately after
Respondent's husband went missing in view of the
employment of the Respondent. Though the reasons given by
the employer to deny the relief sought by the Respondent are
not sustainable, we are convinced that the Respondent's son
cannot be given compassionate appointment at this point of
time. The application for compassionate appointment of the
son was filed by the Respondent in the year 2013 which is
more than 10 years after the Respondent's husband had
gone missing. As the object of compassionate appointment is
for providing immediate succour to the family of a deceased
employee, the Respondent's son is not entitled for
compassionate appointment after the passage of a long
period of time since his father has gone missing."
5. Thus as per the settled law, the whole object of granting
compassionate appointment is to enable the family to tide over
the sudden crisis which arises due to the death of the sole
breadwinner. In the present case, as it can be noticed that the
husband of the present petitioner has passed away in the year
2011 and the family has survived for 6 years. The Supreme
Court has also noted in paragraph Nos. 8 and 9 that as the
object of compassionate appointment is to enable the family to
tide over the sudden crisis, which arises due to the death of
sole breadwinner, the respondent is not entitled for
compensation after a passage of long period of time. In the
present case, the petitioner has only challenged the
communication, where she was asked to supply the papers for
getting compensation. As held by the Supreme Court, on the
date of making an application there was no scheme of
providing compassionate appointment prevalent and no fault
can be found even in asking her to supply necessary papers for
claiming compensation. Thus the writ petition is highly belated,
and it can be said that the petitioner has acquiesced her right
by remaining silent for all these years.
C/SCA/10174/2021 ORDER DATED: 30/07/2021
6. In that view of the matter, the present writ petition is
misconceived and the same is rejected.
(A. S. SUPEHIA, J)
MAYA S. CHAUHAN
