Gujarat High Court
Sumitraben Wd/O Kantilal Patel vs State Of Gujarat on 5 July, 2023
Bench: Mauna M. Bhatt
C/SCA/9682/2023 JUDGMENT DATED: 05/07/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9682 of 2023
With
R/SPECIAL CIVIL APPLICATION NO. 9732 of 2023
With
R/SPECIAL CIVIL APPLICATION NO. 9766 of 2023
With
R/SPECIAL CIVIL APPLICATION NO. 9778 of 2023
With
R/SPECIAL CIVIL APPLICATION NO. 9830 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
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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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SUMITRABEN WD/O KANTILAL PATEL
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MR MURALI N DEVNANI(1863) for the Petitioner(s) No. 1
MS POOJA ASHAR ASST. GOVERNMENT PLEADER for the Respondents
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CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 05/07/2023
COMMON ORAL JUDGMENT
1. The above writ petitions are filed seeking directions to
C/SCA/9682/2023 JUDGMENT DATED: 05/07/2023
the respondent - authorities to grant compassionate Financial
Assistance to the petitioners in accordance with policy dated
5.7.2011, and modified policy dated 7.4.2016.
2. Since the issue involved in the above group of petitions
are similar, they are heard together and decided by this
common judgment.
3. All above writ petitions are filed by legal heirs of the
deceased employees who died during service with the office of
the respondent - State. The details with regard to the date of
joining, date of death and date of their application seeking
compensation are as under:
Sr. SCA No. Date of Date of Date of First Delay in
No. Joining Death Application Years
17 SCA/9682/2023 2.11.1978 9.5.2016 28.11.2022 7 years
18 SCA/9732/2023 16.3.1981 6.6.2017 28.11.2022 6 years
19 SCA/9766/2023 16.9.1978 17.8.2010 28.11.2022 13 years
20 SCA/9778/2023 1.10.1975 17.3.2014 28.11.2022 9 years
21 SCA/9830/2023 16.10.1978 30.10.2015 28.11.2022 8 years
4. It is case of the petitioners that since the employees
expired during service, as per Government Resolution dated
5.7.2011, they are eligible to get compensation upon
fulfillment of the conditions stated therein. It is also prayed
that Government Resolution dated 5.7.2011 has been modified
C/SCA/9682/2023 JUDGMENT DATED: 05/07/2023
by Government Resolution dated 7.4.2016, wherein monetary
limit has been increased and as all the petitioners have
preferred the petition subsequent to Government Resolution
dated 7.4.20216, they are entitled for the monetary benefits as
increased under Government Resolution dated 7.4.2016.
5. Heard Mr. Dharmesh Devnani, learned advocate for the
petitioners and Ms. Pooja Ashar, learned Asst. Government
Pleader for the respondent - State.
6. Mr. Devnani, learned advocate for the petitioners made
following submissions:
(i) That since all the deceased employees had joined service
of respondent - State as daily wager and thereafter were
granted benefits pursuant to the Government Resolution dated
17.10.1988, their services became permanent and therefore,
they are entitled for all the benefits flowing from the
Government Resolutions from time to time.
(ii) Referring to the Government Resolution dated 10.3.2000,
he submitted that upon death of the Government employees
during their service, the legal heirs (petitioners) were eligible
to apply seeking compassionate appointment. Under the said
Government Resolution, the application seeking compassionate
C/SCA/9682/2023 JUDGMENT DATED: 05/07/2023
appointment is to be made within a period of three months,
from the date of death of the Government employee.
(iii) However, as there were many difficulties faced in
implementation of the Government Resolution dated 10.3.2000,
decision was taken to modify the Government Resolution dated
10.3.2000, and another Government Resolution dated
05.07.2011, was issued by which, it was decided to give lump-
sum compensation to the family members of deceased
employees of Class-III and IV who died in harness. Under
Clause II of Government Resolution dated 5.7.2011, it has been
decided not to extend the said benefits to Rojamdar, Causal
Workers, Apprentices, Ad-hoc employees, contract or re-
employment employees. The said issue was subject matter of
a petition and it has attained finality in the year 2017.
Therefore, applications made cannot stated to be belated.
(iv) The application seeking companionate financial assistance
cannot be denied on the ground of delay. Learned Advocate
relied upon decision of this Court in the case of State of
Gujarat & Ors. vs. Budhabhai A.Chavda reported in 2011 (2)
GLR 1236, wherein despite delay this Court has directed the
authorities to take immediate steps to appoint the concerned
person on employment on priority basis.
C/SCA/9682/2023 JUDGMENT DATED: 05/07/2023
(v) Learned Advocate also relied upon decision in the case of
(a) Abhishek Ramniklal Joshi vs. State of Gujarat in SCA
No.4395 of 2019 dated 30.7.2019 (b) The State of West Bengal
vs. Debabrata Tiwari & Ors., in Civil Appeal Nos. 8842-8855 of
2022 and submitted that in the above decisions considering
the facts and circumstances of the cases, the Court have time
and again granted compassionate appointment or in the
alternative compensation irrespective of the delay in preferring
the applications. He, therefore, submitted that these petitions
may be also considered for grant of compensation.
(vi). Learned Advocate thus strenuously contended that the
decision of this court dated 19.06.2023 in SCA 9958 of 2023,
would not be applicable.
7. On the other hand, Ms. Pooja Ashar, learned Asst.
Government pleader opposed the petitions and relied upon the
decision of this Court in Radhaben Manubhai Sarvaiya Wd/o.
Manubhai Jagabhai Sarvaiya vs. State of Gujarat in Special
Civil Application Nos. 9958 of 2023 with 9960 of 2023. She
submitted that in all above-mentioned petitions, the application
seeking compensation in lieu of compassionate appointment is
made in the year 2022. Further the initial intimation of death
of the employee during service is not available on record. So
far as the issue of regularization or permanency is concerned,
C/SCA/9682/2023 JUDGMENT DATED: 05/07/2023
nowhere the date of regularization or permanency is mentioned
in the petition. She submitted that therefore, the decision of
this Court in Radhaben Manubhai Sarvaiya Wd/o. Manubhai
Jagabhai Sarvaiya (supra) dated 19.6.2023 would squarely be
applicable.
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 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
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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 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
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workman. In that context this Court held that
Government Resolution dated 05.07.2011 is applicable
to the daily wager and casual worker.
7.2 Other two decisions relied upon by learned
advocate for the petitioners in Special Civil
Application No.12832 of 2022 and 13178 of 2022, in
my opinion would not be applicable in the facts of
these cases. 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:
"6.1 Learned single Judge was alive to the law
that the compassionate appointment is not a
matter of right. He also considered decision in
N.C.Santosh Vs. State of Karnataka and Others,
[(2020) 7 SCC 617] which held that
appointment on compassionate appointment to
be offered to the dependent of the deceased
employee is an exception to norms that all
vacancies in the government departments
should be filled in in terms of tenets of
Articles 14 and 16 of the Constitution.
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
C/SCA/9682/2023 JUDGMENT DATED: 05/07/2023
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. 2 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.
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."
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
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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.
6.4 As we held above that the explanation of
delay given by the petitioner was not tenable,
much less it was adequate explanation, learned
single Judge committed an error in accepting the
same and thereafter proceeding to consider the
case of the petitioner to grant compassionate
benefit. Despite noticing the law laid down in
N.C.Santosh (supra) in the subsequent paragraph,
learned single Judge has held the appellant-
petitioner to be entitled to benefit of lump-sum
compensation under Resolution dated 5.7.2011.
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
C/SCA/9682/2023 JUDGMENT DATED: 05/07/2023
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. Compassionate appointment is not a vested
C/SCA/9682/2023 JUDGMENT DATED: 05/07/2023
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.
7.3. The object underlying a provision for grant
of compassionate employment is to enable the
family of the deceased employee to tide over the
sudden crisis due to the death of the bread-
earner which has left the family in penury and
without any means of livelihood. Out of pure
humanitarian consideration and having regard to
the fact that unless some source of livelihood is
provided, the family would not be in a position
to make both ends meet, a provision is made for
giving gainful appointment to one of the
dependents of the deceased who may be eligible
for such appointment. Having regard to such an
object, it would be of no avail to grant
compassionate appointment to the dependents of
the deceased employee, after the crisis which
arose on account of death of a bread-winner, has
been overcome. Thus, there is also a compelling
need to act with a sense of immediacy in matters
concerning compassionate appointment because
on failure to do so, the object of the scheme of
compassionate would be frustrated. Where a long
lapse of time has occurred since the date of
death of the deceased employee, the sense of
immediacy for seeking compassionate
appointment would cease to exist and thus lose
its significance and this would be a relevant
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circumstance which must weigh with the
authorities in determining as to whether a case
for the grant of compassionate appointment has
been made out for consideration.
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 better, since the time of the death of the
government employee. In such circumstances,
Courts or other relevant authorities are to be
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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 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
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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, 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.
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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 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
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SCC 538; NDMC vs. Pan Singh, (2007) 9 SCC
278.
9. Further, simply because the Respondents-Writ
Petitioners submitted their applications to the
relevant authority in the year 2005- 2006, it
cannot be said that they diligently perused the
matter and had not slept over their rights. In
this regard, it may be apposite to refer to the
decision of this Court in State of Uttaranchal vs.
Shiv Charan Singh Bhandari, (2013) 12 SCC 179,
wherein the following observations were made:
"19. From the aforesaid authorities it is clear as
crystal that even if the court or tribunal directs
for consideration of representations relating to a
stale claim or dead grievance it does not give
rise to a fresh cause of action. The dead cause of
action cannot rise like a phoenix. Similarly, a
mere submission of representation to the
competent authority does not arrest time."
(emphasis by us)
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
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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 17 th March, 2015,
whereby the writ 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."
10. 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
petitions being meritless do not deserve acceptance and therefore,
the same are dismissed. No costs.
(MAUNA M. BHATT,J)
NAIR SMITA V.
