Manjulaben Wd/O Kantubhai Patel vs State Of Gujarat
2023 Latest Caselaw 5478 Guj

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     C/SCA/10012/2023                                       ORDER DATED: 01/08/2023

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 10012 of 2023

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                     MANJULABEN WD/O KANTUBHAI PATEL
                                  Versus
                            STATE OF GUJARAT
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Appearance:
MR MURALI N DEVNANI(1863) for the Petitioner(s) No. 1
for the Respondent(s) No. 2,3,4
MS POOJA ASHAR, LD.ASSTT. GOVERNMENT PLEADER for the
Respondent(s) No. 1
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 CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT

                                Date : 01/08/2023

                                 ORAL ORDER

1. This petition is filed seeking following reliefs:

"(A) That the Hon'ble Court may be pleased to admit this petition.

(B) That the Hon'ble Court may be pleased to allow this Special Civil Application by issuing an appropriate writ of Mandamus or in the nature of Mandamus, order or direction directing the respondent authorities to grant compassionate Financial Assistance to the Petitioner in accordance with the policy dated 5-7-2011 as modified by the policy dated 7-4-2016 in the interest of justice at Annex-E.

(C) Alternatively, your Lordships may be pleased

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to direct the respondent authorities to take appropriate decision on the application made by the petitioner dated 28.11.2022, in accordance with the policy dated 5-7-2011 as modified by the policy dated 7-4-2016 in the interest of justice at Annex-E.

(D) Your Lordship may be pleased to Grant such other and further relief(s) as deemed just and proper by this Hon'ble Court in the interest of justice."

2. Heard learned advocate Mr. Dharmesh Devnani for learned advocate Murali Devnani, for the petitioner.

3. He submitted that husband of the petitioner expired during service on 22.05.2012. The husband of the petitioner had completed more than 30 years of service, and therefore the petitioner is entitled for the benefits flowing from Government resolutions from time to time. Since, the petitioner expired during service, the legal heirs are entitled for benefits flowing from the Government Resolution dated 05.07.2011 as also modified Government Resolution dated 07.04.2016. Therefore, the petitioner made an application seeking compensation in lieu of compassionate appointment on 28.11.2022. Learned Advocate submitted that under Government Resolution dated 05.07.2011, the legal heirs of deceased (petitioner) are entitled for the compensation in lieu of compassionate appointment, therefore appropriate direction may be issued to grant the said benefit as per modified policy dated 07.04.2016.

4. Opposing the petition, learned Assistant Government Pleader

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Ms.Pooja Ashar for the respondent - State relied upon decision of this Court in case of Sumitraben Wd/o Kantilal Patel vs. State of Gujarat in Special Civil Application No.9682 of 2023 and submitted that the husband of the petitioner expired on 28.05.2017 and the application seeking compensation in lieu of compassionate appointment was preferred on 11.01.2023, which is admittedly after 6 years. She submitted that as held by this Court granting of such benefit would amount to going beyond the aim and object of the Government Resolution dated 10.03.2000 and therefore relief prayed for may not be granted. She submitted that as held by this Court the petitioner is not entitled for any relief because that would amount to provide relief beyond the aim and object of Government Resolution dated 10.03.2000.

5. Considered the submissions. It is noticed that the application seeking compensation in lieu of compassionate appointment is made in the year 2023 i.e. after a period of 10 years. This Court in the case of Sumitraben Wd/o Kantilal Patel vs. State of Gujarat in Special Civil Application No.9682 of 2023 held as under:

"8. Considered the submissions and decisions relied upon. The undisputed facts are that all the employees had expired between the year 2010 to year 2017 and in all cases the applications seeking benefit under Government Resolution dated 5.7.2011 have been preferred in the year 2022. Thus, in all the cases, there is a delay of more than 5 years in preferring the application seeking compensation in lieu of compassionate appointment. This Court in the order dated

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19.6.2023 in Special Civil Application No.9958 of 2023 with 9960 of 2023 in case of Radhaben Manubhai Sarvaiya Wd/o Decd. Manubhai Jagabhai Sarvaiya vs. State of Gujarat has observed as under:

"7. For the prayer of grant of lumpsum compensation under Government Resolution dated 05.07.2011, it is noticed that there is a delay of more than 10 years and 6 years respectively in seeking the said benefit. No application seeking compassionate appointment or lumpsum compensation was made at the relevant time. Most importantly, the Government Resolution dated 05.07.2011, refers to parent Resolution dated 10.03.2000, and therefore it would not be appropriate to go beyond the aim and object to provide compassionate appointment. Admittedly, the aim and object for compassionate appointment is to provide immediate financial assistance to the family in distress and therefore, I do not agree with the submission of learned advocate for the petitioners that prayer for grant of lumpsum compensation is to be granted automatically irrespective of delay in preferring the application. The aim and object of compassionate appointment shall

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have to be seen and it is to provide immediate financial assistance to the family in distress and therefore, contention that delay is to be ignored, in my opinion is not correct. First para of Government Resolution dated 05.07.2011, refers earlier Resolution dated 10.03.2000. The second para of G.R. dated 05.07.2011, refers to the difficulties faced by the administration in considering cases of compassionate appointment and therefore need arose to amend the G.R dated 10.03.2000 by which, it has been decided to give lumpsum compensation in lieu of compassionate appointment. Therefore, one of the clauses of G.R. dated 05.07.2011, cannot be read in isolation. Thus, the G.R. dated 05.07.2011, is the substituted policy of the State to be considered in place of grant of compassionate appointment.

7.1 The decision relied upon by the petitioners in the case of Divyarajsinh Dilubha (supra), the authority rejected the application on the ground that Government Resolution dated 05.07.2011 is not applicable in the case of daily wager and casual workman. In that context this Court held that Government Resolution dated 05.07.2011 is applicable to the daily wager and casual worker.

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7.3 It would be apt to refer to the decision in the case of Rajeshkumar Vishnuprasad Joshi v. State of Gujarat & Anr. reported in 2023(2) GLR 996, wherein Division Bench of this Court has held as under:

XXXX 6.2 Learned single Judge rightly noticed from N.C.Santosh (supra) the following paragraphs, "13. It is well settled that for all government vacancies equal opportunity should be provided to all aspirants as is mandated under Articles 14 and 16 of the Constitution. However, appointment on compassionate ground offered to a dependent of a deceased employee is an exception to the said norms. In Steel Authority of India Limited vs. Madhusudan Das & Ors. It was remarked accordingly that compassionate appointment is a concession and not a right and the criteria laid down in the Rules must be satisfied by all aspirant. 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

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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."

6.3 It is also trite principle that the policy of compassionate appointment is intended to give immediate relief to the family of the deceased upon death of the deceased. It is a one-time succor when the family lunges into economic crises upon death of bread earner. While on one hand the compassionate benefit is not a matter of right and would offend the principle of equality in employment, on the other hand the passage of time would further negate the claim of a person to be given a compassionate benefit, for, the belated grant of benefit could not be justified as it would lose the very purpose against the compassionate appointment to be offered and the scheme for such appointments to be implemented. The compassionate appointment is always an immediate consideration and has to be a matter of urgent relief when the family of the deceased employee would have needed it. Element of immediacy has to be a sine qua non for such kind of appointment.

XXXXX 6.5 The benefit of lump-sum compensation under the said Resolution was a substituted relief for appointment as per the changed policy of the

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State Government. The principles which apply for grant of appointment would also apply in considering the case of a claimant under said Resolution for lumpsum compensation. In other words, if the delay was to be the ground to deny the compassionate appointment, the very factor of delay would disentitle the petitioner to be considered for lumpsum compensation, both having the object of providing immediate relief at the relevant point of time to the person and his family. After five years, the grant of benefit of lump-sum compensation was not justified in law."

7.4 Applying the same principle and considering delay occasioned in preferring applications in the present case, I do not find any reason to interfere with the impugned communication dated 23.01.2023, inter alia rejection by the authorities to grant benefit of lumpsum compensation in lieu of compassionate appointment under Government Resolution dated 05.07.2011."

9. Moreover, in the recent decision of Hon'ble Supreme Court in the case of State of West Bengal vs. Debabrata Tiwari reported in AIR 2023 SC 1467 it has been held as under:

"7.2. On consideration of the aforesaid decisions of this Court, the following principles emerge: iii.

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Compassionate appointment is not a vested right which can be exercised at any time in future. Compassionate employment cannot be claimed or offered after a lapse of time and after the crisis is over.

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7.4. As noted above, the sine qua non for entertaining a claim for compassionate appointment is that the family of the deceased employee would be unable to make two ends meet without one of the dependents of the deceased employee being employed on compassionate grounds. The financial condition of the family of the deceased, at the time of the death of the deceased, is the primary consideration that ought to guide the authorities' decision in the matter.

7.5. Considering the second question referred to above, in the first instance, regarding whether applications for compassionate appointment could be considered after a delay of several years, we are of the view that, in a case where, for reasons of prolonged delay, either on the part of the applicant in claiming compassionate appointment or the authorities in deciding such claim, the sense of immediacy is diluted and lost. Further, the financial circumstances of the family of the deceased, may have changed, for the

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better, since the time of the death of the government employee. In such circumstances, Courts or other relevant authorities are to be guided by the fact that for such prolonged period of delay, the family of the deceased was able to sustain themselves, most probably by availing gainful employment from some other source. Granting compassionate appointment in such a case, as noted by this Court in Hakim Singh would amount to treating a claim for compassionate appointment as though it were a matter of inheritance based on a line of succession which is contrary to the Constitution. Since compassionate appointment is not a vested right and the same is relative to the financial condition and hardship faced by the dependents of the deceased government employee as a consequence of his death, a claim for compassionate appointment may not be entertained after lapse of a considerable period of time since the death of the government employee.

8. Laches or undue delay, the blame-worthy conduct of a person in approaching a Court of Equity in England for obtaining discretionary relief which disentitled him for grant of such relief was explained succinctly by Sir Barnes Peacock, in Lindsay Petroleum Co. vs. Prosper Armstrong, (1874) 3 PC 221 as under: "Now the

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doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation, in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute or limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of Justice or injustice in taking the one course or the other, so far as it relates to the remedy." Whether the above doctrine of laches which disentitled grant of relief to a party by Equity Court of England, could disentitle the grant of relief to a person by the High Court in the exercise of its power under Article 226 of our Constitution, came up for consideration before a Constitution Bench of this Court in Moon Mills Ltd. vs. M. R. Meher,

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President, Industrial Court, Bombay, AIR 1967 SC 1450. In the said case, it was regarded as a principle that disentitled a party for grant of relief from a High Court in the exercise of its discretionary power under Article 226 of the Constitution. In State of M.P. vs. Nandlal Jaiswal, (1986) 4 SCC 566 this Court restated the principle articulated in earlier pronouncements in the following words:

"9. ... the High Court in exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the Petitioner and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in exercise of its writ jurisdiction. It was stated that this Rule is premised on a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public inconvenience and bring, in its train new injustices, and if writ jurisdiction is exercised after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. It was pointed out that when writ jurisdiction is invoked, unexplained delay coupled with the creation of third-party rights in the meantime is an important factor which also

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weighs with the High Court in deciding whether or not to exercise such jurisdiction." While we are mindful of the fact that there is no period of limitation provided for filing a writ petition under Article 226 of the Constitution, ordinarily, a writ petition should be filed within a reasonable time, vide Jagdish Lal vs. State of Haryana, (1997) 6 SCC 538; NDMC vs. Pan Singh, (2007) 9 SCC 278.

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10. Applying the said ratio to the facts of the present case, we hold that the Respondents-Writ Petitioners, upon submitting their applications in the year 2006-2005 did nothing further to pursue the matter, till the year 2015 i.e., for a period of ten years. Notwithstanding the tardy approach of the authorities of the Appellant-State in dealing with their applications, the Respondent-Writ Petitioners delayed approaching the High Court seeking a writ in the nature of a mandamus against the authorities of the State. In fact, such a prolonged delay in approaching the High Court, may even be regarded as a waiver of a remedy, as discernible by the conduct of the Respondents-Writ Petitioners. Such a delay would disentitle the Respondents-Writ Petitioners to the discretionary relief under Article 226 of the Constitution. Further, the order of the High Court dated 17th March, 2015, whereby the writ

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petition filed by some of the Respondents herein was disposed of with a direction to the Director of Local Bodies, Government of West Bengal to take a decision as to the appointment of the Respondents-Writ Petitioners, cannot be considered to have the effect of revival of the cause of action."

6. In view of the above, and applying the same principle, compassionate appointment is not a vested right which can be exercised at any time in future. Similarly, lumpsum compensation cannot be claimed or offered after a lapse of time and after the crisis is over. Further, as held earlier, this Court is of the view that the GR dated 5.7.2011, cannot be read in isolation and the aim and object of GR dated 10.3.2000 is to be considered. Therefore, this court is not in agreement with the submissions of learned Advocate for the petitioner that delay in grant of benefit of Government Resolution dated 5.7.2011, is to be ignored. The petition being meritless do not deserve acceptance and therefore, the same is dismissed. No costs."

(MAUNA M. BHATT,J)

DIPTI PATEL