District Development Officer vs Mohammed Adil Bhuramiya Behlim
2021 Latest Caselaw 16889 Guj

      C/LPA/791/2021                                  ORDER DATED: 27/10/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/LETTERS PATENT APPEAL NO. 791 of 2021

            In R/SPECIAL CIVIL APPLICATION NO. 15124 of 2015

                                   With
                CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
               In R/LETTERS PATENT APPEAL NO. 791 of 2021
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                        DISTRICT DEVELOPMENT OFFICER
                                    Versus
                       MOHAMMED ADIL BHURAMIYA BEHLIM
==========================================================
Appearance:
MR HS MUNSHAW(495) for the Appellant(s) No. 1,2
MR. MR BUKHARI(6919) for the Respondent(s) No. 1
NOTICE SERVED BY DS(5) for the Respondent(s) No. 2
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 CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
       and
       HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE

                                Date : 27/10/2021

                        ORAL ORDER

(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA)

Heard learned advocate Mr.Hemant Munshaw for the appellant and learned advocate Mr.Bukhari for the private respondent.

2. The challenge in the Letters Patent Appeal is addressed to the judgment dated 17.6.2021 of learned Single Judge whereby Special Civil Application filed by the respondent came to be allowed. Learned Single Judge set aside orders dated 8.12.2008 and 15.5.2015 passed by the respondents.

3. The case of the petitioner for appointment on compassionate ground or for grant of lump-sum compensation as per the Resolution dated 5.7.2011 was directed to be

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reconsidered.

3.1 In the main petition, the petitioner has prayed for reconsidering his case for appointment on compassionate basis in view of order dated 14.7.2011 passed by this Court in earlier Special Civil Application No.2112 of 2011 or as per the Government Resolution which provided for giving lump-sum compensation in lieu of factual appointment.

3.2 The father of the petitioner was Assistant Teacher who worked under respondent No.3 and died on 9.5.2007 while in service. He put in twenty years and had passed Staff Selection Commission examination, also completed the course of Draftsman (Mechanical) to be appointed on Class-III or Class-IV post. The petitioner submitted application dated 16.6.2007 seeking compassionate appointment.

3.3 The proposal was considered by the competent authority and finally reached to the highest authority. The respondent No.1 by letter dated 8.12.2008 informed that since the family of the deceased employee had received pension of Rs.7,973/- and also received lump-sum amount and even terminal dues at the time of death, the petitioner would not be entitled to appointment on compassionate ground. In response to the petitioner and the prayers, respondent filed their affidavit to take stand inter alia that due to receipt of pension, financial condition of the family could not be said to be such requiring to offer the petitioner compassionate appointment.

3.4 It appears that petitioner again requested the authorities to reconsider his case by addressing letter dated 29.5.2009. Since the reply was negative, the petitioner filed Special Civil Application No.15765 of 2012 before this Court in which the

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petitioner was relegated to make representation which the petitioner made on 21.4.2015 before the respondent Nos.1 and

2. The representation came to be rejected on 15.5.2015. It appears that by that time policy of giving actual appointment was replaced by policy of giving lump-sum compensation as reflected in Resolution dated 5.7.2011. In the representation the petitioner also made such alternative request to grant him the benefit of lump-sum payment. As the representation got rejected the Special Civil Application came to be filed.

4. Learned Single Judge has relied on the decision in Canara Bank and another Vs. Mahesh Kumar, [(2015) 7 SCC 412], in which it is held that the grant of family pension or payment of terminal benefits cannot be a ground to deny the compassionate appointment.

4.1 The law was discussed by learned Single Judge with reference to the decision of the Apex Court noticing the correct position of law as under.

"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:

"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:-

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"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."

4.2 On the basis of law emanating from decision of the Apex Court, learned Single Judge held that the receipt of the family pension by petitioner cannot be considered as ground for rejecting his claim for appointment on compassionate appointment. Learned Single Judge therefore issued direction to the authorities to reconsider the case of the petitioner either for actual appointment or for lump-sum compensation.

5. It was sought to be argued on behalf of the appellant that as per the policy of paying lump-sum compensation reflected in Government Resolution dated 5.7.2011, one of the condition is that if the request is earlier rejected, such request could not be considered for paying lump-sum amount. This contention has no leg to stand in as much as the initial rejection of the request of the petitioner was on the ground of erroneously in law that the

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petitioner had received the pension amount.

6. In that view, the condition of not reopening the case mentioned in Resolution dated 5.7.2011 cannot be operated as the rejection of the request was not on valid ground.

7. The judgment of learned Single Judge allowing the petition and passing the necessary direction could be said to be eminently proper and legal requiring no interference in Letters Patent Appeal.

The Letters Patent Appeal is dismissed.

(N.V.ANJARIA, J)

(ANIRUDDHA P. MAYEE,J) Manshi