Shivam Satishkumar Vaidya vs State Of Gujarat
2023 Latest Caselaw 4992 Guj

     C/LPA/441/2022                              JUDGMENT DATED: 28/06/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                 R/LETTERS PATENT APPEAL NO. 441 of 2022

            In R/SPECIAL CIVIL APPLICATION NO. 20646 of 2017


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE N.V.ANJARIA

and
HONOURABLE MR. JUSTICE J. C. DOSHI

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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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                       SHIVAM SATISHKUMAR VAIDYA
                                  Versus
                            STATE OF GUJARAT
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Appearance:
MR PM BHATT(183) for the Appellant(s) No. 1
MR LB DABHI, AGP for the Respondent(s) No. 1
LAW OFFICER BRANCH(420) for the Respondent(s) No. 3
MS TRUSHA K PATEL(2434) for the Respondent(s) No. 2,3
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    CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
          and
          HONOURABLE MR. JUSTICE J. C. DOSHI

                             Date : 28/06/2023

                            ORAL JUDGMENT

C/LPA/441/2022 JUDGMENT DATED: 28/06/2023

(PER : HONOURABLE MR. JUSTICE J. C. DOSHI)

1. This Letters Patent Appeal under clause 15 has been filed challenging the order dated 20.01.2020 passed by the learned Single Judge in Special Civil Application No.20646 of 2017, whereby the learned Single Judge rejected the prayer of the petitioner for compassionate appointment on the establishment of Small Cause Court at Vadodara as per petitioner's qualification.

2. Facts of the case which can briefly stated are :-

2.1. That the mother of the petitioner deceased - Kalpanaben Satishkumar Vaidya was serving as Assistant in Small Causes Court, Vadodara. She died on 20.09.2001 in harness leaving behind his son i.e. present petitioner and her husband - Satishkumar Vaidya who was serving on the establishment of Court of Chief Judicial Magistrate, Vadodara on the post of Shirestedar. The petitioner on 09.04.2003 moved application to the Registrar General, High Court of Gujarat reserving his option to be appointed under the scheme for compassionate appointment, since the petitioner was minor.

2.2. The petitioner having attained majority on 29.04.2009 moved application for getting compassionate appointment on the establishment of Small Causes Court, Vadodara as per his qualification. The application so preferred by the petitioner came to be rejected on 13.08.2009. Review application was moved by the petitioner on 01.12.2010 for reviewing the order passed on

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13.08.2009 and claimed relief to be appointed on the establishment of Small Causes Court, Vadodara as per his qualification.

2.3. Father of the petitioner - appellant who was also serving on the establishment of District Court, Vadodara, took VRS and retired on 31.12.2013. Review application filed by the petitioner was rejected on 18.05.2017, which has given cause of action to the petitioner to file Special Civil Application.

3. Perusal of the order impugned in this LPA indicates that the learned Single Judge was weighed with the aspect that spirit of the scheme which gives the benefit of compassionate appointment to the members of the family of the deceased employee who dies in harness is that such a benefit is to ensure that the family is not left without breadwinner. It was further held by the learned Single Judge that sole object of extending benefit of compassionate appointment is to ameliorate the financial distress that a family may face due to the death of the breadwinner of the family. Learned Single Judge while examining the facts of the case observed that when mother of the petitioner

- appellant died, his father was serving on the establishment of District Court, Vadodara and later on he also took voluntary retirement from service with effect from 31.12.2013 and therefore, the factor indicates that the family had never faced any financial recede on the death of mother of the petitioner. Family of the petitioner was stable and could sustain itself though mother died in the year 2001.

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3.1 Upon above observations and findings, learned Single Judge dismissed the Special Civil Application. Being dissatisfied the petitioner has filed this Letters Patent Appeal.

4. Heard learned advocate Mr. P.M.Bhatt for the appellant - petitioner, learned advocate Ms. Trusha Patel for opponent nos.2 and 3 and learned AGP Mr. L.B.Dabhi for opponent no.1.

5. Learned advocate Mr. P.M.Bhatt appearing for the appellant - petitioner apart from pointing out facts of the present case would argue that the petitioner has approached the concerned authority for getting compassionate appointment without causing delay. He would further submit that concerned authority without considering the purport and object of the scheme of compassionate appointment has ignored the claim of the petitioner. He would further submit that learned Single Judge was also not correct in denying compassionate appointment to the appellant - petitioner although he has approached within time limit. He would further submit that two similarly situated persons have been given compassionate appointment but the appellant - petitioner was denied and as such discrimination took place at the hands of the authority, yet learned Single Judge has not noticed such discrimination and therefore, order of the learned Single Judge is wrong. He would further submit that when the petitioner filed review petition against the order of the authority denying compassionate appointment, during such period in which decision took place in the review, the father of the petitioner took voluntary retirement

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from service on the ground of illness of grandmother of the petitioner, but that ground has been totally unnoticed and therefore, impugned order sustain awry. Upon such submissions, while relying upon following decision, learned advocate Mr. Bhatt submits to allow this Letters Patent Appeal and to quash and set aside impugned order and grant relief prayed in Special Civil Application.

(1) Malaya Nanda Sethy v/s. State of Orissa [JT 2022 (5) SCC 464] (2) Govind Prakash Verma v/s. Life Insurance Corporation of India [2005 (10) SCC 289] (3) Canara Bank v/s. M. Mahesh Kumar [2015 (7) SCC 412]

6. On the other hand, learned advocate Ms. Trusha Patel appearing for the respondent authority having supported the impugned order submits that to get compassionate appointment is exception to general rule and no aspirant has right to get compassionate appointment. She would further submit that object and purpose of appointment on compassionate ground largely depends on facts of each case and in terms of the policy prevelant at that time. If deceased dies in harness and leaving behind his / her family in penury and without any means of livelihood, in such cases, purely on humanitarian basis, appointment on compassionate can be granted. She would further submit that in the case on hand when mother of the appellant - petitioner died, father was serving on the establishment of District Court, Vadodara. The petitioner was at relevant time minor and even after he became major, he sustain

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since many years. Father of the petitioner who was government eimployee took VRS in the year 2013, which display that family is not facing any financial crunch. This fact is rightly assessed by the learned Single Judge. She submits that impugned order does not warrant any interference. As such while relying on judgment of the Hon'ble Supreme Court in the case of Fertilizers and Chemicals Travancore Ltd. and Ors v/s. Anusree K.B. reported in 2022 Livelaw (SC) 819, she submits to dismiss this Letters Patent Appeal.

7. Learned AGP Mr. L.B.Dabhi joined the argued of learned advocate Ms. Trusha Patel and submitted to dismiss this Letters Patent Appeal.

8. Having heard learned advocates for both the sides, at the outset, let refer to the decision of the Hon'ble Supreme Court as to find out purport and object of scheme of compassionate appointment, in the case of Bhawani Prasad Sonkar v/s. Union of India [(2011) 4 SCC 209], it has been held as under :-

"15. Now, it is well settled that compassionate employment is given solely on humanitarian grounds with the sole object to provide immediate relief to the employee's family to tide over the sudden financial crisis and cannot be claimed as a matter of right. Appointment based solely on descent is inimical to our Constitutional scheme, and ordinarily public employment must be strictly on the basis of open invitation of applications and comparative merit, in consonance with Articles 14 and 16 of the Constitution of India. No other mode of appointment is permissible.

Nevertheless, the concept of compassionate appointment has been recognized as an exception to the general rule,

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carved out in the interest of justice, in certain exigencies, by way of a policy of an employer, which partakes the character of the service rules. That being so, it needs little emphasis that the scheme or the policy, as the case may be, is binding both on the employer and the employee. Being an exception, the scheme has to be strictly construed and confined only to the purpose it seeks to achieve....

17. In Umesh Kumar Nagpal Vs. State of Haryana & Ors.1, while emphasising that a compassionate appointment cannot be claimed as a matter of course or in posts above Class III and IV, this Court had observed that:

"The whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post much less a post for post held by the deceased. What is further, mere death of an employee in harness does not entitle his family to such source of livelihood. The Government or the public authority concerned has to examine the financial condition of the family of the deceased, and it is only if it is satisfied, that but for the provision of employment, the family will not be able to meet the crisis that a job is to be offered to the eligible member of the family. The posts in Classes III and IV are the lowest posts in non-manual and manual categories and hence they alone can be offered on compassionate grounds, the object being to relieve the family, of the financial destitution and to help it get over the emergency. The provision of employment in such lowest posts by making an exception to the rule is justifiable and valid since it is not discriminatory. The favourable treatment given to such dependant of the deceased employee in such posts has a rational nexus with the object sought to be achieved, viz., relief against destitution. No other posts are expected or required to be given by the public authorities for the purpose. It must be remembered in this connection that as against the destitute family of the deceased there are millions of other families which are equally, if not more destitute. The exception to the rule made in favour of

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the family of the deceased employee is in consideration of the services rendered by him and the legitimate expectations, and the change in the status and affairs, of the family engendered by the erstwhile employment which are suddenly upturned."

....20.Thus, while considering a claim for employment on compassionate ground, the following factors have to be borne in mind:

(i) Compassionate employment cannot be made in the absence of rules or regulations issued by the Government or a public authority. The request is to be considered strictly in accordance with the governing scheme, and no discretion as such is left with any authority to make compassionate appointment dehors the scheme.

(ii) An application for compassionate employment must be preferred without undue delay and has to be considered within a reasonable period of time.

(iii) An appointment on compassionate ground is to meet the sudden crisis occurring in the family on account of the death or medical invalidation of the bread winner while in service. Therefore, compassionate employment cannot be granted as a matter of course by way of largesse irrespective of the financial condition of the deceased/incapacitated employee's family at the time of his death or incapacity, as the case may be.

(iv) Compassionate employment is permissible only to one of the dependants of the deceased/incapacitated employee, viz. parents, spouse, son or daughter and not to all relatives, and such appointments should be only to the lowest category that is Class III and IV posts."

9. After referring case of Govind Prakash Verma v/s. LIC [(2005) 10 SCC 289], the Hon'ble Supreme Court in the case of State of Himachal Pradesh and Anr. v/s. Shashi Kumar [(2019) 3 SCC 653 considered the object and purpose of appointment on

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compassionate ground. In para 21 and 26 in the said judgment, it is observed and held as under :-

"21. The decision in Govind Prakash Verma [Govind Prakash Verma v. LIC, (2005) 10 SCC 289, has been considered subsequently in several decisions. But, before we advert to those decisions, it is necessary to note that the nature of compassionate appointment had been considered by this Court in Umesh Kumar Nagpal v. State of Haryana [Umesh Kumar Nagpal v. State of Haryana, (1994) 4 SCC 138]. The principles which have been laid down in Umesh Kumar Nagpal [Umesh Kumar Nagpal v. State of Haryana, (1994) 4 SCC 138] have been subsequently followed in a consistent line of precedents in this Court. These principles are encapsulated in the following extract: (Umesh Kumar Nagpal case [Umesh Kumar Nagpal v. State of Haryana, (1994) 4 SCC 138], SCC pp. 139-40, para 2)

"2. ... As a rule, appointments in the public services should be made strictly on the basis of open invitation of applications and merit. No other mode of appointment nor any other consideration is permissible. Neither the Governments nor the public authorities are at liberty to follow any other procedure or relax the qualifications laid down by the rules for the post. However, to this general rule which is to be followed strictly in every case, there are some exceptions carved out in the interests of justice and to meet certain contingencies. One such exception is in favour of the dependants of an employee dying in harness and leaving his family in penury and without any means of livelihood. In such cases, out of pure humanitarian consideration taking into consideration the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made in the rules to provide gainful employment to one of the dependants of the deceased who may be eligible for such employment.

The whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post much less a post for post held by

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the deceased. What is further, mere death of an employee in harness does not entitle his family to such source of livelihood. The Government or the public authority concerned has to examine the financial condition of the family of the deceased, and it is only if it is satisfied, that but for the provision of employment, the family will not be able to meet the crisis that a job is to be offered to the eligible member of the family. The posts in Classes III and IV are the lowest posts in non- manual and manual categories and hence they alone can be offered on compassionate grounds, the object being to relieve the family, of the financial destitution and to help it get over the emergency. The provision of employment in such lowest posts by making an exception to the rule is justifiable and valid since it is not discriminatory. The favourable treatment given to such dependant of the deceased employee in such posts has a rational nexus with the object sought to be achieved viz. relief against destitution. No other posts are expected or required to be given by the public authorities for the purpose. It must be remembered in this connection that as against the destitute family of the deceased there are millions of other families which are equally, if not more destitute. The exception to the rule made in favour of the family of the deceased employee is in consideration of the services rendered by him and the legitimate expectations, and the change in the status and affairs, of the family engendered by the erstwhile employment which are suddenly upturned."

26. The judgment of a Bench of two Judges in Mumtaz Yunus Mulani v. State of Maharashtra [(2008) 11 SCC 384] has adopted the principle that appointment on compassionate grounds is not a source of recruitment, but a means to enable the family of the deceased to get over a sudden financial crisis. The financial position of the family would need to be evaluated on the basis of the provisions contained in the scheme. The decision in Govind Prakash Verma [Govind Prakash Verma v. LIC, (2005) 10 SCC 289 : 2005 SCC (L&S) 590] has been duly considered, but the Court observed that it

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did not appear that the earlier binding precedents of this Court have been taken note of in that case."

10. It is also relevant to refer law laid in the recent decision in the case of Director of Treasuries in Karnataka and Anr. v/s. V. Somyashree [2021 SCC Online SC 704], whereby, the Hon'ble Supreme Court referred to earlier decision in the case of N.C.Santhosh v/s. State of Karnakata [(2020) 7 SCC 617] and summarize the principle governing grant of appointment on compassionate ground as under in para - 7:-

"7. While considering the issue involved in the present appeal, the law laid down by this Court on compassionate ground on the death of the deceased employee are required to be referred to and considered. In the recent decision, this Court in the case of Director of Treasuries in Karnataka and Anr. Vs. V. Somyashree, 2021 SCC Online SC 704, had occasion to consider the principle governing the grant of appointment on compassionate ground. After referring to the decision of this Court in N.C. Santhosh Vs. State of Karnataka, (2020) 7 SCC 617, this Court has summarised the principle governing the grant of appointment on compassionate ground as under:-

(i) that the compassionate appointment is an exception to the general rule;

(ii) that no aspirant has a right to compassionate appointment;

(iii) the appointment to any public post in the service of the State has to be made on the basis of the principle in accordance with Articles 14 and 16 of the Constitution of India;

(iv) appointment on compassionate ground can be made only on fulfilling the norms laid down by the State's policy and/or satisfaction of the eligibility criteria as per the policy;

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(v) the norms prevailing on the date of the consideration of the application should be the basis for consideration of claim for compassionate appointment."

11. The decision in the case of Fertilizers and Chemicals Travancore Ltd. And Ors. (supra) has visited above judgments whereby in para - 9 the Hon'ble Supreme Court has observed and held as under :-

"9. Thus, as per the law laid down by this Court in the aforesaid decisions, compassionate appointment is an exception to the general rule of appointment in the public services and is in favour of the dependents of a deceased dying in harness and leaving his family in penury and without any means of livelihood, and in such cases, out of pure humanitarian consideration taking into consideration the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made in the rules to provide gainful employment to one of the dependants of the deceased who may be eligible for such employment. The whole object of granting compassionate employment is, thus, to enable the family to tide over the sudden crisis. The object is not to give such family a post much less a post held by the deceased.

9.1 Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand and considering the observations made hereinabove and the object and purpose for which the appointment on compassionate ground is provided, the respondent shall not be entitled to the appointment on compassionate ground on the death of her father, who died in the year 1995. After a period of 24 years from the death of the deceased employee, the respondent shall not be entitled to the appointment on compassionate ground. If such an appointment is made now and/or after a period of 14/24 years, the same shall be against the object and purpose for

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which the appointment on compassionate ground is provided.

9.2 Under the circumstances, both, the learned Single Judge as well as the Division Bench of the High Court have committed a serious error in directing the appellants to reconsider the case of the respondent for appointment on compassionate ground. The impugned judgment and order passed by the High Court is unsustainable."

12. Apt to refer to decision in the case of State of Himachal Pradesh v/s. Jaflidevi (smt.) [1997 (5) SCC 301], wherein, the Hon'ble Supreme Court has held that policy laid down by the Government regarding compassionate appointment should not be departed from by the High Court merely on account of sympathetic consideration and hardship of person concerned.

13. Thus, what perceives that compassionate appointment is exception to general rule. Person seeking compassionate appointment has no right to get it. Generally, appointment on compassionate ground can be made only on fulfilling norms laid down by the State policy and /or on satisfaction of the eligibility criteria as per policy. Compassionate appointment is exception to general rule of policy in the public services and the person who claims to be dependent of the deceased dying in harness has to establish that family is facing financial crunch and having no means of livelihood. The family is running in financial difficulty as only breadwinner of the family expired during his service and unless source of livelihood is provided, family would not be able to meet requirements. The whole object of granting compassionate appointment is to enable the family to come out from financial crunch which resulted due to sudden death of the

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employee and put family in penury. The object is not to give family the post which was held by the deceased as right.

14. Applying the law stated herein above to the facts of the case, it transpires that according to the petitioner, her mother died in harness on 20.09.2001. The petitioner was born on 17.04.1991 and was minor at relevant time and therefore, he claim to reserve his appointment on attaining majority. In the year 2009, he applied for the post on compassionate ground, however, it is equally true and establish that when mother of the petitioner died, his father was serving on the establishment of District Court, Vadodara, as such was government employee having established source of income for livelihood. The petitioner's claim for compassionate appointment was rejected in the year 2009. He filed review against the said order which came to be rejected in the year 2017. But for all this years, he survived, not only that his father voluntarily retired from service which demonstrates which that there was no financial crunch on sudden demise of mother of the petitioner. There was sufficient source of livelihood which could meet both the ends of need. The learned Single Judge has observed and assessed this aspect in the background of settled provision of law. Order of learned Single Judge is right, just and proper.

15. It was also argued by learned advocate Mr. Bhatt that two other persons similarly situated have got appointment on compassionate ground, but the petitioner was denied and as such he was discriminated. Appointment on compassionate

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ground is always subject to facts of the case and each case has different facts. Secondly, as per established law, compassionate appointment is exception to general rule and there is no enforceable right for the appointment on compassionate ground much less on the post held by the deceased. Thus, in absence of enforceable right, the petitioner cannot claim that he has been discriminated on the ground that two other persons have been given compassionate appointment. Thus submission does not sound germane.

16. The authority upon which learned advocate Mr.Bhatt for the appellant relies are rendered in background of facts of that cases and it does not offer any assistance to the case of the appellant - petitioner.

17. Apropos the appellant - petitioner has failed to make out case warranting interference with the impugned order under the Letters Patent jurisdiction. Hence, Letters Patent Appeal is dismissed.

(N.V.ANJARIA, J)

(J. C. DOSHI,J) SATISH