Mohammed Adil Bhuramiya vs State Of Gujarat
2021 Latest Caselaw 6197 Guj

     C/SCA/15124/2015                             JUDGMENT DATED: 17/06/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 15124 of 2015


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BHARGAV D. KARIA

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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 ?

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                        MOHAMMED ADIL BHURAMIYA
                                  Versus
                        STATE OF GUJARAT & 2 other(s)
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Appearance:
MR SK BUKHARI(212) for the Petitioner(s) No. 1
MR KM ANTANI, GOVERNMENT PLEADER(1) for the Respondent(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 3
NOTICE SERVED(4) for the Respondent(s) No. 2
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    CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA

                              Date : 17/06/2021

                              ORAL JUDGMENT

1. Heard, learned Advocate, Mr. S.K. Bukhari, for the petitioner, learned AGP, Mr. K.M. Antani, for Respondent Nos.1 and 2 and learned Advocate, Mr. H.S. Munshaw, for Respondent No.3 through video conference.

C/SCA/15124/2015 JUDGMENT DATED: 17/06/2021

2. Rule. Learned AGP, Mr. K.M. Antani, waives service of notice of rule for Respondent Nos.1 and 2 and learned Advocate, Mr. H.S. Munshaw, waives service of notice of rule for Respondent No.3.

3. By this petition under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs:

"25. ...

(A) This petition may kindly be admitted;

(B) The Hon'ble Court may be pleased to issue a writ of mandamus or any other appropriate writ, order or directions for quashing and setting-aside the decision taken by the Respondent No.1 as per letter dated 08-12-2008 (Annexure-E) and by letter dated 15-05-2015 (Annexure-L) by directing the Respondents to reconsider the case of the Petitioner for compassionate appointment on the basis of order dated 14-07-2011 passed by the Hon'ble High Court in Special Civil Application No. 2112 of 2011 or as per Government Resolution dated 05-07-2011 coupled with Order dated 01-02-2012 passed by the Hon'ble High Court in Special Civil Application No. 17230 of 2011;

(C) Pending admission, hearing and final disposal of this Petition, the Hon'ble Court may be pleased to direct the Respondents to decide the case of the Petitioner as early as possible;

(D) ..."

4. The brief facts of the case are that the father of the petitioner, namely Shri. Bhuramiya Allauddin Behlim, was serving as a teacher at Primary Kumar Shala No.2, Kheralu, under Respondent No.3 and he expired on 09.05.2007, while in service.

5. It is the case of the petitioner that at the time of death of his father, he was aged about 27 years. He has passed S.S.C. examination

C/SCA/15124/2015 JUDGMENT DATED: 17/06/2021

and has also completed the course of Draftsman (Mechanical) and as such, he was entitled to be appointed on the post of Class-III or Class- IV on compassionate ground. The petitioner, therefore, made an application on 16.06.2007 to Respondent No.3, i.e. District Education Officer and made a request to appointment him on compassionate ground. Then, Respondent No.3-DEO, vide letter dated 12.08.2008, sent a proposal for appointment of the petitioner on compassionate ground to Respondent No.1-State. However, Respondent No.1-State vide letter dated 08.12.2008, addressed to Respondent No.2, rejected the said proposal to appoint the petitioner on compassionate ground, for the reason that his family had received Family Pension of Rs.7,973/- and they also had received an amount of Rs.12,21,241/-, towards the terminal dues, on account of the death of the father of the petitioner. It was mentioned in the said order that in view of the Government Resolutions dated 10.03.2000 and 29.03.2007, the petition was not entitled to be appointed on compassionate ground.

6. The petitioner, therefore, again made a request to Respondent No.2 to reconsider his case, vide letter dated 29.05.2009. However, no action was taken by the Respondents, and therefore, he preferred Special Civil Application No. 15765 of 2012 before this Court. The Coordinate Bench of this Court, vide order dated 14.03.2013, permitted the petitioner to withdraw the said petition, with a view to make an appropriate representation to the competent authority. Accordingly, the petitioner made a detailed representation on 21.04.2015 before Respondent Nos. 1 and 2. However, Respondent No.1 rejected the aforesaid representation vide order dated 15.05.2015.

7. It is pertinent to note that the petitioner also had prayed, in the said representation that he is ready and willing to avail the benefit of G.R. dated 05.07.2011, which enables the Respondent-State to pay

C/SCA/15124/2015 JUDGMENT DATED: 17/06/2021

lump-sum amount, as stated in the said G.R.. The petitioner also relied on the decision of this Court, rendered in the case of 'SANDEEPBHAI RAJNIKANT MEHTA VS. STATE OF GUJARAT AND OTHERS' in Special Civil Application No. 2112 of 2011, wherein, this Court has held that no income criteria is specified in the G.R. dated 29.03.2007, and therefore, the said G.R. cannot be made applicable in the case of the petitioner to deny him the benefit of appointment on compassionate ground. Since, the said representation of the petitioner is rejected, he has preferred this petition.

8. Learned Advocate, Mr. Bukhari, appearing for the petitioner submitted that the rejection of the prayer made by the petitioner to appoint him on compassionate ground as the G.R. dated 29.03.2007 cannot be the basis for denial of appointment on compassionate ground, as family pension and the death-cum-gratuity emoluments received by the family of the petitioner cannot be treated as the source of income of the legal heirs of a deceased employee. In support of his submissions, he has relied on the decision of this Court in the case of 'PRAKASHKUMAR VITTHALBHAI VANKAR VS. STATE OF GUJARAT', rendered in Special Civil Application No. 11268 of 2009, wherein, this Court, while relying on the decision in Special Civil Application No. 11243 of 2009 and the allied matters, held that the essential purpose of compassionate appointment is to give benefit to the family members of the deceased government employee at the earliest for financial support to the family and only by relying upon the income of pension and the death-cum-retirement benefits, without taking into consideration the earlier salary for the post in question, the compassionate appointment cannot be denied.

9. Reliance is also placed on another decision of this Court in Special Civil Application No. 8320 of 2012 in the case of 'TUSHAR

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JAGDISHCHANDRA VYAS VS. STATE OF GUJARAT THROUGH SECRETARY', reported in 2018 (4) GLR 3007 in support of the petition. It was, further, submitted that the Apex Court in case of 'CANARA BANK AND ANOTHER VS. M. MAHESH KUMAR', reported in (2015) 7 SCC 412, has held that the grant of family pension or payment of terminal benefits cannot be treated as a substitute for providing employment assistance.

10. Learned Advocate, Mr. Munsahw, appearing for Respondent No.3 submitted that as such, earlier representation of the petitioner was already rejected in the year 2008, and therefore, the same cannot be re- considered to give benefit of the G.R. dated 05.07.2011 for grant of lump-sum compensation.

11. It was submitted that the orders passed by Respondent No.1 are in consonance with the facts and material on record, as well as the policy of the State Government.

12. It was also submitted that the petition cannot be said to have any vested right of appointment on compassionate ground, as it is of benevolent nature of appointment, as per the policy of the State Government. He placed reliance on the decision of the Apex Court in the case of 'STATE BANK OF INDIA & ANOTHER VS. RAJKUMAR', reported in (2010) 11 SCC 661, in support of his submissions. The Apex Court also, further, held that the claim of compassionate appointment under a Scheme of a particular year cannot be decided, based on subsequent scheme that came into force much after claim. It was, therefore, emphasized that once the representation / application of the petitioner was not considered in the year 2008, the case of the petitioner cannot be re-considered, subsequently.

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13. Learned AGP, Mr. Antani, adopted the arguments of learned Advocate, Mr. Munsahw, and submitted that the petitioner is neither entitled to get the benefit of appointment on compassionate ground nor lump-sum compensation.

14. Having heard the learned Advocates for the respective parties, it emerges from the material on record that the petitioner had applied for the appointment on compassionate ground in the year 2008, which was rejected by Respondent No.1 on 08.12.2008, by placing reliance on the G.R. dated 29.03.2007, on the ground that the family members of the petitioner had received family pension and death-cum-retirement dues after the demise of his father, and therefore, his case cannot be considered for appointment on compassionate ground.

15. The petitioner made a representation before Respondent-State, as per order passed in Special Civil Application No. 15765 of 2012. However, the same was rejected by the Respondent-State and the benefit of lump-sum compensation, as per the G.R. dated 05.07.2011 was also denied. The Respondent-State solely on the ground that the family of the petitioner had received death-cum-retirement benefits and family pension, rejected prayer of the petitioner in the year 2002 as well as in the year 2015.

16. The Hon'ble Apex Court in the case of 'CANARA BANK AND ANOTHER' (Supra), after considering the various decisions on the issue, including the decision in the case of 'UNION OF INDIA VS. B. KISHORE', reported in (2011) 4 SCALE 298 and in ''STATE BANK OF INDIA ' (Supra), has held as under:

C/SCA/15124/2015 JUDGMENT DATED: 17/06/2021

"16. 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 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." 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."

17. In above view of the matter, the terminal benefits received by the family of the petitioner so also the monthly family pension, after the death of his father, cannot be considered for rejecting his claim for appointment on compassionate ground. This Court also, in catena of decisions, has held on the identical issue that the petitioner is entitled to appointment on compassionate ground, irrespective of the terminal benefits and the monthly pension received by the family of the deceased government employee and has quashed and set aside the orders denying the appointment on compassionate ground.

18. For the reasons recorded herein above, this petition is ALLOWED and the impugned orders dated 08.12.2008 and 15.05.2015 passed by the Respondents are QUASHED and set aside. The

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Respondents are, hereby, DIRECTED to re-consider the case of the petitioner either for appointment on compassionate ground or for grant of lump-sum compensation as per G.R. dated 05.07.2011, in lieu of such appointment. If, the petitioner is found ELIGIBLE for appointment on compassion ground, for his having requisite qualification, then, the orders for his appointment shall be passed or he shall be paid lump- sum compensation as per the G.R. dated 05.07.2011. Let such exercise be completed within the period of EIGHT WEEKS, from the date of receipt of a copy of this order. Rule is made absolute to the aforesaid extent. No order as to costs.

(BHARGAV D. KARIA, J) UMESH/-