Radhaben Manubhai Sarvaiya Wd/O ... vs State Of Gujarat
2023 Latest Caselaw 4616 Guj

     C/SCA/9958/2023                            JUDGMENT DATED: 19/06/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 9958 of 2023
                                   With
               R/SPECIAL CIVIL APPLICATION NO. 9960 of 2023


FOR APPROVAL AND SIGNATURE:

HONOURABLE MRS. JUSTICE MAUNA M. BHATT                    sd/-

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1     Whether Reporters of Local Papers may be allowed               Yes
      to see the judgment ?

2     To be referred to the Reporter or not ?                        Yes

3     Whether their Lordships wish to see the fair copy              No
      of the judgment ?

4     Whether this case involves a substantial question              No
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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 RADHABEN MANUBHAI SARVAIYA WD/O DECD. MANUBHAI JAGABHAI
                        SARVAIYA
                          Versus
                    STATE OF GUJARAT
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Appearance:
MR RAJESH P MANKAD (2637) for the Petitioner(s) No. 1
for the Respondent(s) No. 2
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: 19/06/2023

                            ORAL JUDGMENT

1. Rule returnable forthwith. Learned Assistant Government Pleader waives service of Rule on behalf of the respondents.

C/SCA/9958/2023 JUDGMENT DATED: 19/06/2023

2. These petitions are filed seeking two reliefs, (i) the direction to the respondents to grant benefit of 300 days leave encashment, and (ii) to grant benefit of lumpsum compensation in lieu of compassionate appointment under Government Resolution dated 05.07.2011.

2.1 As both these petitions are involving similar issues with similar prayers, with the consent of learned advocates for the respective parties, they are heard and decided together.

3. Facts, in brief, are as under:

3.1 Petitioner in Special Civil Application No.9958 of 2023 is a widow of Manubhai Jagabhai Sarvaiya. Late Manubhai, expired during service on 19.03.2013. He was daily wager and working on Fixed pay. It is case of the petitioner that his husband was granted benefit of gratuity after completion of 5 years of service and therefore, in view of Government Resolution dated 17.10.1988, he is entitled for the benefit of leave encashment, of 300 days Earned Leave.

3.2 Petitioner in Special Civil Application No.9960 of 2023 is a widow, of Kanubhai Chhaganbhai Dodiya. Late Kanubhai, expired during service on 29.08.2017. He was daily wager and working on Fixed pay. It is case of the petitioner that his

C/SCA/9958/2023 JUDGMENT DATED: 19/06/2023

husband was granted benefit of gratuity after completion of 5 years of service and therefore, in view of Government Resolution dated 17.10.1988, he is entitled for the benefit of leave encashment of 300 days Earned Leave.

3.3 In relation to the prayer of grant of lumpsum compensation in lieu of compassionate appointment, it is case of both the petitioners that they are entitled for the said benefits as their husbands died during service and worked for more than 30 years. As both the benefits (leave encashment and lumpsum compensation) have not been extended to the petitioners, these petitions are filed.

4. Heard learned advocate Mr.Rajesh Mankad for the petitioners and learned Assistant Government Pleader Ms.Pooja Ashar for the respondent- State.

5. In relation to prayer of more than 300 days leave encashment, the issue is no more res-integra in view of the decision of Hon'ble Supreme Court dated 01.09.2022, in Special Leave Petition (C) No. 7229 of 2022, and Government Resolution dated 07.10.2022 issued by Road & Building Department.

5.1 In relation to leave encashment vide circular dated

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07.10.2022, the Government has also taken a policy decision which reads as under: -

"According to the decision of the Supreme Court, since the retiral benefits given to the daily wagers under the resolution dated 17.10.1988, also includes the benefit of leave encashment, therefore the daily wagers are entitled to the benefit of leave encashment as per Clause (5) of the State Litigation Policy of the Government. The instructions in this regard are circulated after consultation and as per the approval received through the informal note dated 3.10.2022 of the Finance Department.

With regard to the various claims filed before the Hon'ble Court, after verifying the service record of the petitioners - daily wagers and after calculating as per rules and the policy of the Government applicable to the regular services, the benefit of encashment of earned leaves (within the maximum limit of 300 earned leaves) shall be paid in the following terms :

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(1) The petitioners - daily wagers who have retired and completed 70 years as on 1.10.2022 shall be paid latest by 31.10.2022.

(2) Rest of the petitioners - daily wagers shall be paid within a period of three months, i.e. on or before 31.12.2022."

5.2 In view of the above said position, this Court deems it appropriate to direct the respondents to undertake scrutiny of individual cases of the petitioners herein, and upon such scrutiny, if they are found eligible then a proposal shall be forwarded to the State Authorities in this regard and thereafter, the State Authority shall consider proposal of the petitioners herein expeditiously and in consonance with the State policy.

5.3 The aforesaid exercise shall be completed within a period of twelve weeks from today.

6. For the benefits of lumpsum compensation in lieu of compassionate appointment, Learned advocate Mr.Rajesh Mankad for the petitioners submitted that they are entitled for the same irrespective of number of years have passed and the

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claim being belated. In support of his submission, he relied upon decision of this Court in the case of Divyarajsinh Dilubha Vala Vs. State of Gujarat reported in 2020(0) AIJEL-HC 241928 and other two decisions in Special Civil Application No.12832 of 2022 and 13178 of 2022 wherein, prayers in relation to lumpsum compensation has been directed to be considered by this Court. He further submitted that Government Resolution dated 05.07.2011 does not provide for delay and therefore, the petitioners are entitled for the said benefits. Further, bare reading of Government Resolution dated 05.07.2011, refers to payment of lumpsum compensation in lieu of compassionate appointment. Respondent-State being model employer ought to have granted benefits upon death of husbands of the petitioners.

6.1 On the other hand, learned Assistant Government Pleader Ms.Pooja Ashar submitted that the said benefit of lumpsum compensation could not be extended to the petitioners as husbands of the petitioners expired in the year 2013 and 2017 respectively. The petitioners have been paid all retiral benefits including funeral expenses in the years of their death. Whereas, the petitioners have issued legal Notice to the respondents for lumpsum compensation on 09.01.2023. She submitted that husbands of the petitioners expired in the year 2013 and 2017 respectively whereas the application/Notice for

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the first time, has been served upon the respondent on 09.01.2023, which suffers from delay of more than 10 years and 6 years respectively. The contention of learned advocate for the petitioners that Government Resolution dated 05.07.2011 is applied automatically irrespective of delay is not correct. Consideration of the case of the petitioner for grant of lumpsum compensation amounts to going beyond aim and object to provide immediate financial assistance to the family in distress. She therefore submitted that prayer in relation to compassionate appointment under Government Resolution dated 05.07.2011 cannot be considered.

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

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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 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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7.2 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

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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. 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 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

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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.

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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 State Government. The principles which apply for grant of appointment would also apply in considering the case of a claimant under said Resolution for lump- sum 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 lump- sum 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.

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8. With the aforesaid, both these petitions are partly allowed. The prayer of the petitioners for grant of leave encashment is allowed in terms of the directions contained in Para 5.2 and 5.3, of this judgement. The prayer for grant of lumpsum compensation under G.R dated 05.07.2011 is rejected. Rule made absolute to the aforesaid extent.

Direct service is permitted.

Sd/-

(MAUNA M. BHATT,J)

DIPTI PATEL.