Anil Manojbhai Solanki vs Commissioner
2021 Latest Caselaw 4831 Guj

        C/SCA/9746/2017                                  JUDGMENT




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/SPECIAL CIVIL APPLICATION NO. 9746 of 2017


FOR APPROVAL AND SIGNATURE:


HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
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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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                          ANIL MANOJBHAI SOLANKI
                                  Versus
                               COMMISSIONER
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Appearance:
MR MAULIK SONI FOR MR NK MAJMUDAR(430) for the Petitioner(s) No. 1
MR CJ VIN(978) for the Respondent(s) No. 1
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 CORAM: HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
                   Date: 30/03/2021
                   ORAL JUDGMENT

1. With the consent of the learned advocates for the respective parties, the captioned writ petition is taken up for final hearing.

2. Issue Rule. Mr. C.J. Vin, learned advocate waives service of rule on behalf of the respondent.

3. By this petition, inter alia, under Article 226 of the Constitution of India, the petitioner has prayed for direction to

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the respondent Surat Municipal Corporation to grant compassionate appointment in accordance with the resolution dated 26.4.2006 and 8.9.2015.

4. Tersely stated are the facts:

4.1 The father of the petitioner was serving as Beldar in Central Zone, Surat Municipal Corporation (hereinafter referred to as the "respondent Corporation") and while serving, he passed away on 15.3.2012. Immediately thereafter, the mother of the petitioner preferred an application dated 20.6.2012 to the Executive Engineer, Central Zone, Surat Municipal Corporation, inter alia, requesting for compassionate appointment. Along with the application, necessary documents were also annexed in support of her eligibility for getting such appointment.

4.2 According to the petitioner, as the application dated 20.6.2012 was not considered by the respondent Corporation, the mother of the petitioner preferred an application dated 19.3.2013 informing that as she is 47 years of age and would not be eligible for the compassionate appointment, therefore her son, who is dependent and a minor, may be offered appointment upon him attaining the age of majority. The mother of the petitioner shunted from pillar to post however, of no avail and almost after two years, the respondent Corporation had passed the order dated 16.3.2015, rejecting the application of the mother of the petitioner.,

4.3 The respondent Corporation rejected the application dated 19.3.2013 of the mother of the petitioner relying upon condition No.6 of the resolution no.195/2006 dated 26.4.2006

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(hereinafter referred to as "the Resolution") and on the ground that the mother of the petitioner was 7 th standard pass and not illiterate. The respondent Corporation also pointed out that condition No.6 of the Resolution contemplates that in case the wife is illiterate, the son, who is minor, will be getting appointment upon his attaining the majority and the mother being literate, the dependent son was not eligible for being appointed on compassionate ground. The mother of the petitioner, being aggrieved, submitted a representation dated 6.10.2016, inter alia, narrating the fact that she was orally informed that as she has attained the age of 46 years, would not be eligible for compassionate appointment

4.4 The petitioner, being aggrieved, has filed the captioned writ petition with the aforementioned prayers.

5. The respondent Corporation has filed its reply mainly contending that according to condition No.6 of the Resolution, the case of the petitioner, for compassionate appointment to a minor can be considered only if the wife of the deceased and mother of the petitioner was illiterate. In the present case, the documents reveal that the mother of the petitioner has studied till standard 7th and therefore, she would not be covered by condition No.6 of the Resolution. It is stated that since the case of the petitioner did not fall within the condition No.6 of the Resolution, there arises no question of considering the case of the petitioner for compassionate appointment, being a minor at the time of the death of the employee. It is further stated that reliance placed by the petitioner on the amended condition of the Resolution no.195/2006 dated 26.4.2006 is misplaced because, the amendment has been brought into

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effect on 8.9.2015, that is, much after the death of the father of the petitioner and filing of the application. It is therefore, urged that the petitioner is not competent or eligible or qualified to get appointed on compassionate ground after the demise of his father and the petition deserves to be dismissed.

6. Mr. Maulik Soni, learned advocate appearing for Mr. N.K. Majmudar, learned advocate for the petitioner submitted that immediately after the death of the father of the petitioner, his mother submitted an application dated 20.6.2012; since the same remained undecided another application dated 19.3.2013 was submitted with a request to the respondent Corporation that in her place, the compassionate appointment may be offered to the petitioner. In the application, it has been stated by the mother of the petitioner that as she has attained 47 years of age; would not be eligible for the appointment and therefore, the son being dependent, he may be considered for compassionate appointment upon him attaining majority. It is submitted that the said application dated 19.3.2013, was not a fresh application and was in continuation of the earlier application dated 20.6.2012.

6.1 It is next submitted that though his mother has submitted an application in the year 2012 and thereafter, in the year 2013, the respondent Corporation has taken a decision only on 16.3.2015, that is, almost after a period of more than two years. Further, the application has been rejected on the ground that the petitioner would not be entitled and eligible to seek appointment. Such a stand of the respondent Corporation deserves to be quashed and set aside, as the petitioner has already attained the age of majority within five years from the

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date of the demise of the father.

6.2 It is next submitted that considering condition No.6 of the resolution no.195/2006 dated 26.4.2006, it is permissible to the dependent to submit an application within a period of 12 months from the date of death of the employee; however, the respondent Corporation has not considered the same. It is submitted that under the circumstances, it was incumbent upon the respondent Corporation to have considered the application of the petitioner as per the criteria contained in the resolution no.195/2006 and further amended on 8.9.2015 for compassionate appointment on permanent post of Class-IV. It is next submitted that since nothing was heard from the respondent Corporation, the mother of the petitioner had filed the representation, inter alia, requesting to reconsider the decision; however, no decision has yet been taken.

6.3 It is thus, urged that the decision dated 16.3.2015 taken by the respondent Corporation is against the policy laid down and it deserves to be quashed and set aside because, the application dated 19.3.2013 was not a fresh application, but was in continuation of the application dated 20.6.2012. It is therefore urged that the petition deserves to be allowed by quashing the decision dated 16.3.2015.

7. On the other hand, Mr. C.J. Vin, learned advocate appearing for the respondent Corporation submitted that the understanding of the petitioner is misplaced inasmuch as, condition No.6 of the Resolution dated 26.4.2006 will not apply to the case of the petitioner. Had it been the case that the mother of the petitioner was illiterate, the condition no.6 would have come to the aid of the petitioner; however, the record

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reveals that the mother of the petitioner was literate which fact is strengthened by documents indicating that she is standard 7th pass. Therefore, the mother of the petitioner did not fall in the category of illiterate and consequently, the said condition will not cover the petitioner. It is further submitted that the question, of considering the fact that the petitioner was a minor and he attained the majority within five years after death of the employee and would become entitled to claim compassionate appointment, would arise only if the mother of the petitioner was illiterate.

7.1 It is next submitted that the application of the mother of the petitioner withdrawing her claim and requesting the Corporation to consider the petitioner for compassionate appointment are distinct causes and would stand on an independent footing. It is submitted that the mother of the petitioner was very much eligible to make application, being a literate; however, for the reasons best known to her, she withdrew the application dated 20.6.2012 and submitted another application dated 19.3.2013, inter alia, requesting to offer compassionate appointment to the petitioner.

7.2 It is submitted that the said application, could not have been considered by the respondent Corporation on two counts, one, that the application was submitted beyond the period of six months, and two, condition No.6 applies only to the illiterate wife of the deceased employee and the minor children will be getting benefit of compassionate appointment if they attain majority within a period of five years from the date of the death of the employee. As is clear from the record, the mother of the petitioner was not illiterate and therefore, she

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and the petitioner would not be getting the benefit of condition No.6 of the Resolution.

7.3 It is next submitted that reliance placed on condition No.6 of the Resolution is erroneous, because, prior to the amendment, the limitation period for making the application was six months. Notably the application dated 19.3.2013 by the mother of the petitioner was beyond the period of six months from the date of the death of the employee concerned and therefore could not have been considered. It was only after the amendment on 8.9.2015, in the provisions of the Resolution, that the period for making application has been made one year and therefore the petitioner cannot get the benefit of such limitation.

7.4 It is submitted that the order dated 16.3.2015 passed by the In-charge Personnel Officer, Central Zone, Surat Municipal Corporation is in right earnest and in consonance with the provisions contained in the Resolution dated 26.4.2006 providing for compassionate appointment to the members of the employees, who have died in harness. It is therefore, urged that the petition does not deserve to be entertained.

8. Heard Mr. Maulik Soni, learned advocate for the petitioner and Mr. C.J. Vin, learned advocate for the respondent Corporation.

9. The father of the petitioner died in harness on 15.3.2012 and immediately thereafter, the mother of the petitioner submitted an application dated 20.6.2012 to the Executive Engineer, Surat Municipal Corporation, inter alia, requesting for compassionate appointment in tune with the Resolution dated

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26.4.2006 of the respondent Corporation. As per condition no.6, the application by the dependent of the deceased employee was to be submitted within a period of 6 months from the date of the death of the employee concerned. Therefore, the application dated 20.6.2012 was submitted by the mother of the petitioner in time as prescribed in condition No.6 of the Resolution. Further, in the application, the age of the mother of the petitioner was stated to be 46 years and was possessing the educational qualification of 7 th standard pass. Clearly and not disputed, at the time of the death of the employee, the age of the mother of the petitioner was 45 years, 7 months and 16 days and at the time of making application she has just completed 46 years and prima facie, was very much eligible for being appointed on compassionate basis as per the condition No.7 of the Resolution which was governing the compassionate appointment.

10. Clearly, there was and is sheer inaction on the part of the respondent corporation in taking any decision on the application dated 20.6.2012, as, till today, the same has remained undecided. At the relevant point of time, since the respondent Corporation did not take any decision on the application dated 20.6.2012 and being ignorant about the correct provisions of law and the Resolution and under impression that she having crossed the age of 46 years will not be eligible for appointment, mother of the petitioner addressed a letter to the Corporation, inter alia, stating that her age as on that date of making application was 47 years and she is not eligible for the compassionate appointment and therefore, after the death of her husband, her dependent son, who is a minor and will be attaining majority within a period of 5 years

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of death, be considered for the purpose of compassionate appointment.

11. The respondent Corporation, instead of apprising her about the correct position, did not do anything for two years and on one fine morning, addressed a communication dated 16.3.2015 to the mother of the petitioner informing that condition no.6 of the Resolution No. 195/2006 dated 26.4.2006 would apply only to those cases where the wife of the deceased employee is illiterate and child on attaining majority within five years, will be considered for compassionate appointment. It has been stated that in her case, she was 7 th standard pass and literate; therefore, the condition no.6, cannot be made applicable to her son for the purpose of compassionate appointment. In fact going by the stand taken by the respondent corporation the application dated 19.3.2013 was filed beyond a period of six months then in that case it should not have entertained such request only on that ground; however, it decided the application and rejected the same, citing condition no. 6.

12. Thereafter, mother of the petitioner, submitted a representation dated 6.10.2016 to the Commissioner of the respondent Corporation wherein, a specific stand has been taken by her about pendency of her application and no response by the respondent Corporation. Further, it has been stated that she was orally informed that she cannot be offered the compassionate appointment owing to her age limit. It has also been mentioned in her representation that she was further informed that her son, being dependent was eligible for compassionate appointment. Pertinently, no decision has been

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taken so far, on the said representation.

13. Before proceeding further, at this stage it is necessary to refer to some of the provisions of the Resolution dated 26.4.2006, prevailing at the relevant point of time. Condition No.6, free english translation whereof, is to the effect that the dependent of the deceased employee, should file an application within a period of 6 months from the date of the death of the employee and in the cases where the wife of the deceased is illiterate, the children, who are minor, upon attaining the majority within a period of 5 years will be considered for compassionate appointment. Condition no.7 provides that in the case of offering compassionate appointment, in the age above 45 years, there should be relaxation only up to one year. Meaning thereby, beyond the age of 45 years there shall be relaxation only up to one year so if the beneficiary is, say 47 years, he or she will be entitled for relaxation up to one year. Had the intention of respondent corporation to restrict the age beyond 45 years, it would have simply stated that employee beyond the age of 46 years will not be entitled for appointment. But that is not so and therefore the only interpretation of such condition is that "in the age", above 45 years, there shall be relaxation up to one year.

14. Mr. Vin, learned advocate for the respondent corporation, when confronted with the interpretation of the condition no.7, submitted that the condition provides for relaxation of only one year, i.e. above 45 years and only up to one year and therefore, at the most, the relaxation would have been available to the dependent of the employees only up to 46

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years. However, considering the language contained in condition No. 7, this Court, is of the opinion that the said reading is incorrect, more particularly, when it provides for relaxation of one year "in the age" above 45 years. As discussed herein above, had the intention of respondent corporation to restrict the age beyond 45 years, it would have simply stated that employee beyond the age of 46 years will not be entitled for appointment. It is settled that the dependent of a government employee in the absence of any vested right accruing on the death of the government employee, can only demand consideration. Therefore, what is envisaged is due consideration by the authorities but in the present case, as it emerges from the record there is no consideration at all, on the part of the respondent Corporation for, the application dated 20.6.2012 of the mother of petitioner has still remained undecided for the reasons best known to the respondent corporation.

15. When the application dated 19.3.2013 was not accepted by the respondent corporation pressing in service condition No. 6, it was incumbent upon the respondent corporation to have considered the application dated 20.6.2012 as per the prevailing norms. The claim of compassionate appointment of the family members of the deceased employee could not have rejected in this fashion more particularly when prima facie it appears that the wife of the deceased employee was very much eligible and entitled for compassionate appointment as per the Resolution of the respondent corporation.

16. Pertinently, what was required to be seen was as to whether the wife of the deceased employee and the mother of

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the petitioner was eligible and entitled for compassionate appointment as per the prevailing norms. As aforesaid, the application dated 20.6.2012 was filed within a period of six months as contemplated in the Resolution for the purpose of compassionate appointment. Further, as recorded herein above, the mother of the petitioner as on 15.3.2012, was 45 years, 7 months and 16 days and 46 years at the time of making application on 20.6.2012, therefore as per the conditions provided in the Resolution, she was very much eligible for being considered for being appointed on compassionate basis. Perceptibly, no decision was taken by the respondent Corporation on the application dated 20.6.2012 and therefore, the mother of the petitioner crossing the age of 46 years, out of desperation submitted a letter dated 19.3.2013 requesting the Corporation to give appointment to the petitioner. The respondent Corporation, proceeded to consider the said letter dated 19.3.2013 and did not accept the request for grant of compassionate appointment to the petitioner, pressing in service the condition no.6 of the Resolution dated 26.4.2006.

17. It is well settled that the application for compassionate appointment is to be considered on the basis of the prevailing norms. In this behalf, the recent judgment of the Apex Court in the case of N.C. Santhosh vs. State of Karnataka reported in (2020) 7 SCC 617, is worth referring to. The Apex Court, while considering all the judgments and the policies governing, the issue of compassionate appointment, in paragraph 19 has observed that the norms prevailing on the date of consideration of the application, should be the basis for consideration of claim for compassionate appointment. A

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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. It has been further observed that he is however disentitled to seek consideration in accordance with the norms as applicable, on the day of death of the government employee. Relevant paragraphs 18 and 19 read thus:-

"18. In the most recent judgment in State of Himachal Pradesh & Anr. vs. Shashi Kumar 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.

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."

In the present case, on 15.3.2012, when the employee concerned passed away, as well as on 20.6.2012, condition No. 7 of the policy was very much there, which categorically provides for relaxation of one year in the age above 45 years, up to one year.

18. Therefore, in the present case, as can be culled out from the record, there was no consideration at all by the respondent Corporation of the application dated 20.6.2012. Further, the

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respondent Corporation has issued the communication dated 16.3.2015 in a slip shod manner. Therefore, the action of the respondent Corporation was not in the right earnest and against the spirit of the policy framed for the purpose of compassionate appointment to the dependents of the employee who have died in harness.

19. By this petition, the petition has sought for direction to the respondent Corporation to grant compassionate appointment in accordance with the resolutions dated 26.4.2006 as well as 8.9.2015. This Court is of the opinion that since the application dated 20.6.2012, so also the representation dated 6.10.2016 of the mother of the petitioner had remained undecided, the end of justice would meet if direction is issued to the respondent Corporation to decide the said application so also the representation dated 6.10.2016 of the mother of the petitioner keeping in mind the observation contained in the preceding paragraphs; in conformity with the provisions of the resolution dated 26.4.2006 of the respondent Corporation and in accordance with law. The respondent corporation shall take a decision in terms of this judgment within a period of three months from today.

20. With the above observations, the petition is partly allowed. Rule is made absolute to the aforesaid extent. No order as to costs.

(SANGEETA K. VISHEN,J) BINOY B PILLAI