Patel Gaurangkumar Kantilal vs State Of Gujarat
2023 Latest Caselaw 2460 Guj

     C/LPA/49/2020                                 ORDER DATED: 23/03/2023




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/LETTERS PATENT APPEAL NO. 49 of 2020

          In R/SPECIAL CIVIL APPLICATION NO. 16338 of 2019

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                     PATEL GAURANGKUMAR KANTILAL
                                 Versus
                           STATE OF GUJARAT
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Appearance:
MR YOGESH G KANADE(3114) for the Appellant(s) No. 1
MR RONAK RAVAL, for the Respondent(s) No. 1,2,3,4
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 CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
       and
       HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR

                            Date : 23/03/2023

                        ORAL ORDER

(PER : HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI)

1. This is an appeal, filed under Clause-15 of the Letters Patent, by the appellant-original petitioner, assailing the judgment and order passed by the learned Single Judge, Dated: 27.09.2019, in Special Civil Application No. 16338 of 2019, whereby, the learned Single Judge dismissed the captioned petition.

2. The brief facts of the case are that the father of the appellant, who was serving as Principal in grant-in-aid school at Shiva, Taluka: Bhanvad, District: Jamnagar, passed away on 06.09.1997, i.e. after putting in about 22 years of service.

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2.1 It is the case of the appellant that pursuant to the sad demise of his father, he had submitted an application dated 20.10.1997 to Respondent No.4 for grant of compassionate appointment. However, the same was not replied to by Respondent No.4.

2.2 The appellant, therefore, made the representation dated 15.07.2002 to Respondent No.4. No reply was received in response to the said representation, as well.

2.3 It is the case of the appellant that he received a letter dated 18.09.2013, whereby, Respondent No.2- DEO pointed out the Scheme / Policy framed by the State Government vide GR dated 05.07.2011.

2.4 Pursuant thereto, necessary proposal was prepared for payment of lump-sum compensation in lieu of compassionate appointment. However, the aforesaid proposal was rejected vide letter dated 12.03.2014, wherein, it was stated that as there was no application for grant of compassionate appointment filed by the appellant was pending, as on 05.07.2011, the appellant cannot be given the benefit of the aforesaid government resolution.

2.5 Being aggrieved with the same, the appellant preferred Special Civil Application No. 10988 of 2014, which was disposed of by the learned Single

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Judge vide order dated 07.07.2016, by directing the Respondent-authorities to consider the case of the appellant within the period of four months.

2.6 The respondent-authorities vide communication dated 28.06.2018 rejected the request made by the appellant and therefore, the appellant preferred the captioned petition, which came to be dismissed vide order dated 27.09.2019. Hence, the present appeal.

3. Learned Advocate, Mr. Kanade, appearing for the appellant submitted that the appellant had already made an application for grant of compassionate appointment before the concerned authority within the period of six months from the date of demise of his father, i.e. on 20.10.1997. It was, however, stated that the appellant is not having any proof with regard to receipt of such an application by the Respondent-authorities.

3.1 It was submitted that the Respondents have wrongly rejected the request / application made by the appellant on the ground that on the date of the framing of the policy / government resolution, i.e. 05.07.2011, no application of the appellant was pending before it. It was, thus, submitted that the appellant is entitled to get lump-sum compensation, in lieu of compassionate appointment, as per GR dated 05.07.2011.

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3.2 It was, further, submitted that the learned Single Judge failed to appreciate the aforesaid important aspect and therefore, the order passed by the learned Single Judge be quashed and set aside and thereby, appropriate directions be issued to the Respondents offer either compassionate or alternatively, grant lump-sum compensation in lieu of the same.

4. On the other hand, learned AGP, Mr. Raval, strongly opposed the present appeal and submitted that the Respondents rightly rejected the claim of the appellant for grant of compassionate appointment, since, there was no application made by the appellant was pending on the date of framing of policy / issuance of GR dated 05.07.2011. It was, therefore, prayed that this appeal be dismissed.

5. We have heard the learned Advocates for the parties and also perused the material on record. Here, it is pertinent to note that the object of the policy of giving appointment on compassionate ground to the bereaved family members of the employees, who have died in harness, is to provide immediate financial assistance to the families, who have lost their bread-winner.

5.1 In the present case, the father of the petitioner passed away, as back as in the year 1997, and nearly 25 years have passed, since then. Further,

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it was never the case of the appellant that his family was in dire need of the financial assistance in the post-death period of his father. In fact, the family of the appellant has survived for all these years without obtaining any financial assistance from the Respondents, and therefore, it cannot be said that the financial condition of the family of the appellant is critical, which would entitle him to claim either compassionate appointment or the lump- sum compensation.

5.2 At this stage, it would be relevant to refer to the decision of the Apex Court, rendered in the case of 'THE STATE OF WEST BENGAL VS. DEBABRATA TIWARI & OTHERS, reported in 2023 LiveLaw (SC) 175, wherein the Apex Court has observed and held as under at Paragraphs-7.1, 7.2 and 7.5 thereof;

"7.1. It may be apposite to refer to the following decisions of this Court, on the rationale behind a policy or scheme for compassionate appointment and the considerations that ought to guide determination of claims for compassionate appointment.

i. In Sushma Gosain vs. Union of India, (1989) 4 SCC 468, this Court observed that in all claims for appointment on compassionate grounds, there should not be any delay in appointment. That the purpose of providing appointment on compassionate grounds is to mitigate the hardship caused due to the death of the bread earner in the family. Such appointment should, therefore, be provided immediately to redeem the family in distress.

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ii. In Umesh Kumar Nagpal vs. State of Haryana, (1994) 4 SCC 138, this Court observed that the object of granting compassionate employment is to enable the family of a deceased government employee to tide over the sudden crisis by providing gainful employment to one of the dependents of the deceased who is eligible for such employment. That 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, provided a scheme or rules provide for the same. This Court further clarified in the said case that compassionate appointment is not a vested right which can be exercised at any time after the death of a government servant. That the object being to enable the family to get over the financial crisis which it faces at the time of the death of the sole breadwinner, compassionate employment cannot be claimed and offered after lapse of considerable amount of time and after the crisis is overcome.

iii. In Haryana State Electricity Board vs. Hakim Singh, (1997) 8 SCC 85, ("Hakim Singh") this Court placed much emphasis on the need for immediacy in the manner in which claims for compassionate appointment are made by the dependants and decided by the concerned authority. This Court cautioned that it should not be forgotten that the object of compassionate appointment is to give succour to the family to tide over the sudden financial crisis that has befallen the dependants on account of the untimely demise of its sole earning member. Therefore, this Court held that it would not be justified in directing appointment for the claimants therein on compassionate grounds, fourteen years after

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the death of the government employee. That such a direction would amount to treating a claim for compassionate appointment as though it were a matter of inheritance based on a line of succession.

iv. This Court in State of Haryana vs. Ankur Gupta, AIR 2003 SC 3797 held that in order for a claim for compassionate appointment to be considered reasonable and permissible, it must be shown that a sudden crisis occurred in the family of the deceased as a result of death of an employee who had served the State and died while in service. It was further observed that appointment on compassionate grounds cannot be claimed as a matter of right and cannot be made available to all types of posts irrespective of the nature of service rendered by the deceased employee.

v. There is a consistent line of authority of this Court on the principle that appointment on compassionate grounds is given only for meeting the immediate unexpected hardship which is faced by the family by reason of the death of the bread earner vide Jagdish Prasad vs. State of Bihar, (1996) 1 SCC 301. When an appointment is made on compassionate grounds, it should be kept confined only to the purpose it seeks to achieve, the idea being not to provide for endless compassion, vide I.G. (Karmik) vs. Prahalad Mani Tripathi, (2007) 6 SCC 162. In the same vein is the decision of this Court in Mumtaz Yunus Mulani vs. State of Maharashtra, (2008) 11 SCC 384, wherein it was declared 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.

vi. In State of Jammu and Kashmir vs. Sajad Ahmed Mir, AIR 2006 SC 2743, the facts before this Court were that the government employee (father of the applicant

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therein) died in March, 1987. The application was made by the applicant after four and half years in September, 1991 which was rejected in March, 1996. The writ petition was filed in June, 1999 which was dismissed by the learned Single Judge in July, 2000. When the Division Bench decided the matter, more than fifteen years had passed from the date of death of the father of the applicant. This Court remarked that the said facts were relevant and material as they would demonstrate that the family survived in spite of death of the employee. Therefore, this Court held that granting compassionate appointment after a lapse of a considerable amount of time after the death of the government employee, would not be in furtherance of the object of a scheme for compassionate appointment.

vii. In Shashi Kumar, this Court speaking through Dr. D.Y. Chandrachud, J. (as His Lordship then was) observed that compassionate appointment is an exception to the general rule that appointment to any public post in the service of the State has to be made on the basis of principles which accord with Articles 14 and 16 of the Constitution. That the basis of the policy is that it recognizes that a family of a deceased employee may be placed in a position of financial hardship upon the untimely death of the employee while in service. That it is the immediacy of the need which furnishes the basis for the State to allow the benefit of compassionate appointment. The pertinent observations of this Court have been extracted as under:

"41. Insofar as the individual facts pertaining to the Respondent are concerned, it has emerged from the record that the Writ Petition before the High Court was instituted on 11 May 2015. The application for compassionate appointment was submitted on 8 May 2007. On 15 January 2008 the Additional Secretary had required that the amount

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realized by way of pension be included in the income statement of the family. The Respondent waited thereafter for a period in excess of seven years to move a petition Under Article 226 of the Constitution. In Umesh Kumar Nagpal (supra), this Court has emphasized that the basis of a scheme of compassionate appointment lies in the need of providing immediate assistance to the family of the deceased employee. This sense of immediacy is evidently lost by the delay on the part of the dependant in seeking compassionate appointment."

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

i. That a provision for compassionate appointment makes a departure from the general provisions providing for appointment to a post by following a particular procedure of recruitment. Since such a provision enables appointment being made without following the said procedure, it is in the nature of an exception to the general provisions and must be resorted to only in order to achieve the stated objectives, i.e., to enable the family of the deceased to get over the sudden financial crisis.

ii. Appointment on compassionate grounds is not a source of recruitment. The reason for making such a benevolent scheme by the State or the public sector undertaking is to see that the dependants of the deceased are not deprived of the means of livelihood. It only enables the family of the deceased to get over the sudden financial crisis.

iii. 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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iv. That compassionate appointment should be provided immediately to redeem the family in distress. It is improper to keep such a case pending for years.

v. In determining as to whether the family is in financial crisis, all relevant aspects must be borne in mind including the income of the family, its liabilities, the terminal benefits if any, received by the family, the age, dependency and marital status of its members, together with the income from any other source.

XXX XXX XXX

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 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

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lapse of a considerable period of time since the death of the government employee. "

5.3 Keeping in mind the aforesaid observations made by the Apex Court, if, the facts of the present case are examined, it is revealed that the father of the appellant expired in the year 1997 and as per the case of the appellant, he had submitted an application for grant of compassionate appointment on 20.10.1997. It may be noted that the learned Advocate, Mr. Kanade, upon the query raised by this Court fairly submitted that he is not having any document or proof to show that the letter dated 20.10.1997 was duly received by the Respondents.

5.4 It appears that nothing happened pursuant to the same. Thereafter, the appellant sent a communication in the year 2002 making a request for grant of compassionate appointment. However, no reply appears to have been received in response to the same by the appellant. Now, it is the case of the Respondents that when the application of the appellant dated 18.09.2013, which was forwarded through Respondent No.4 for grant of benefits as per GR dated 05.07.2011, was received by it, there was no application or request of the appellant was pending before it and therefore, as per Condition No.5 of the GR dated 05.07.2011, the request of the appellant was rejected.

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5.5 In view of the above discussion, we are of the

opinion that the learned Single Judge committed no

error, while dismissing the petition filed by the

appellant.

6. Resultantly, the present appeal fails and is

DISMISSED.

(VIPUL M. PANCHOLI, J)

(HASMUKH D. SUTHAR,J) UMESH/-