Gujarat High Court

Vadodara Municipal Corporation vs Vadodara Municipal Corporation Kamdar ... on 21 June, 2024

Author: Bhargav D. Karia

Bench: Bhargav D. Karia

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     C/SCA/8295/2017                             JUDGMENT DATED: 21/06/2024

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 8295 of 2017
                                   With
               R/SPECIAL CIVIL APPLICATION NO. 15372 of 2017

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BHARGAV D. KARIA

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1     Whether Reporters of Local Papers may be allowed                 No
      to see the judgment ?

2     To be referred to the Reporter or not ?                          No

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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           VADODARA MUNICIPAL CORPORATION
                         Versus
VADODARA MUNICIPAL CORPORATION KAMDAR KARMACHARI UNION
                        & ANR.
================================================================
Appearance:
MR NILESH A PANDYA(549) for the Petitioner(s) No. 1
MR P C CHAUDHARI(5770) for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
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    CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA

                             Date : 21/06/2024

                        COMMON ORAL JUDGMENT

1. Heard learned advocate Mr.Nilesh A. Pandya

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for the petitioner and learned advocate

Mr.P.C.Chaudhari for the respondent No.1.

2. Special Civil Application No.8295 of 2017

is filed by the Vadodara Municipal Corporation

challenging the Judgment and Award dated

30.11.2016 rendered by the Presiding Officer

of the Industrial Tribunal No.1 at Vadodara

(for short 'the Tribunal') in Reference IT

No.44 of 2013 whereby, Virendrasinh Mukundbhai

Vaghela, son of deceased employee-Mukundbhai

Vaghela was awarded compassionate appointment

as per the Government Resolution dated 10th

March, 2000.

3. Brief facts of the case are as under :

3.1. The respondent No.1-Union filed

reference application for compassionate

appointment of Virendrasinh Mukundbhai

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Vaghela, son of deceased Mechanic-Mukundbhai

Vasantbhai Vaghela who was employed with the

petitioner-Corporation and expired due to

natural death of 5th January, 2011 while in

service.

3.2. It is the case of the respondent that

as per the Government Resolution dated 10th

March, 2000, Virendrasinh Mukundbhai Vaghela

is entitled for compassionate appointment who

was dependent of the employee of the

petitioner-Corporation who died a natural

death while in service.

3.3. The Assistant Labour Commissioner,

vide order dated 18th March, 2013 made a

reference to the Tribunal. The respondent

filed statement of claim at Exh.10 before the

Tribunal stating that Mukundbhai Vasantbhai

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Vaghela, E.D.P. No.178486 was working as

mechanic on a permanent basis with the

petitioner-Corporation and expired due to

natural death on 05.01.2011. Widow of

Mukundbhai made an application on 22.01.2011

to give compassionate appointment under

compassionate appointment scheme to son of the

deceased, Virendrasinh Vaghela along with

Certificate of Death, Salary Slip, Provident

Fund Slip etc.

3.4. It appears that after receipt of the

application, the petitioner-Corporation did

not take any action whereas, the petitioner-

Corporation gave appointment on compassionate

ground to the son of the deceased employee-

Shri Udesinh Parmar who expired just two days

before the death of Mukundbhai Vaghela. It

also appears that petitioner-Corporation

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returned the application for compassionate

appointment on 08.12.2012 without passing any

order.

3.5. The petitioner filed reply in the

written statement at Exh.11 before the

Tribunal contending that the petitioner-

Corporation is ready and willing to pay

compensation as per the Government Resolution

dated 05.07.2011. The Tribunal after

considering the contention raised by both the

sides has passed the impugned award.

3.6. As the petitioner-Corporation did not

implement the award, the Union preferred

Special Civil Application No.15372 of 2017

with the following prayers :

"(a) YOUR LORDSHIP be pleased to issue

writ of mandamus, or writ of certiorari or

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issue writ of in the nature of any other

writ, order or direction, directing that

the award and order passed by the learned

Industrial Tribunal dated 30.11.2016

passed in Reference (I.T.) Case No. 44 of

2013 in not granting the effect of

compassionate appointment retrospectively

along with all monetary and consequential

benefits is illegal and improper and be

further pleased to modify the same.

(b) YOUR LORDSHIP may further be pleased

to direct the respondent to comply with

the award and order dated 30.11.2016

passed by the Tribunal in Reference (I.T.)

No. 44 of 2013 with immediate effect and

be further pleased to direct the

respondent to appoint the petitioner on

compassionate ground as per policy the

rights and contentions of the parties.

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such other and further relief as may be

deemed fit in the interest of justice."

4.1. Learned advocate Mr.Nilesh Pandya for

the petitioner-Corporation submitted that

right from the day one, the petitioner-

Corporation is ready and willing to pay the

lumpsum compensation as per the Government

Resolution dated 05.07.2011 amounting to Rs.4

Lakhs. It was pointed out that this fact was

also made clear before the Tribunal, however,

the Tribunal passed the impugned Judgment and

Award on the basis of the Government

Resolution dated 10.03.2000 considering the

same being applicable on the date of death of

late Mukundbhai Vaghela.

4.2. It was submitted that the Tribunal

ought to have considered the applicability of

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the Government Resolution dated 05.07.2011 for

payment of lumpsum compensation to the son of

the deceased-employee.

4.3. Learned advocate Mr.Nilesh Pandya

referred to and relied upon the decision of

the Hon'ble Supreme Court in case of Central

Bank of India versus NITIN rendered in Civil

Appeal No.5111 of 2022. It was submitted that

the Hon'ble Supreme Court in the aforesaid

decision has held that the compassionate

appointment is an exception to the rule of

equality. It was submitted that the Hon'ble

Supreme Court in the facts of the case before

him after considering the decision of the

Canara Bank & Another versus M. Mahesh Kumar

reported in (2015) 7 SCC 412 and the decision

in case of Umesh Kumar Nagpal versus State of

Haryana reported in (1994) 4 SCC 138 held as

under :

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"20. It is well settled that compassionate appointment is an exception to the rule of equality, which enables the dependent family members of a medically incapacitated employee who has no option, but to retire, or a deceased employee, to tide over the immediate crisis caused by the incapacitation or death of the breadwinner. Compassionate Appointment excludes equally or more meritorious candidates, much in need of a job, from the zone of consideration. Consideration for compassionate appointment must, therefore, be strictly in accordance with the prevalent rules for compassionate appointment applicable to the deceased/prematurely retired employee.

21. In this case, there is a financial criteria of eligibility for compassionate appointment under the Compassionate Appointment Scheme. Rules which provide for a financial criteria

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for appointment on Compassionate ground are valid and lawful rules which have to be construed strictly, as otherwise the quota reserved for compassionate appointment would be filled up excluding others who might be in greater and/or far more acute financial distress.

22. As held by this court in State Bank of India vs. Raj Kumar reported in (2010) 11 SCC 661 cited by Mr. Debal Kumar Banerji, learned senior counsel appearing on behalf of the appellant-

Bank, the claim for compassionate appointment is traceable only to the Scheme framed by the employer for such employment, and there is no right whatsoever outside such scheme. There could be no automatic appointment merely on application. The respondent-writ petitioner did not have any special claim or special right to employment as dependent family member of the retired employee."

4.4. Referring to the above dictum of law,

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it was submitted that the impugned Judgment

and Award may be modified by directing the

petitioner to pay the lumpsum compensation

instead of reinstatement of the son of the

deceased employee as per the impugned award

applying the Government Resolution dated

10.03.2000.

5.1. On the other hand, learned advocate

Mr.P.C.Chaudhari for the respondent No.1-Union

submitted that it is a well settled legal

position that the policy applicable on the

date of death of deceased employee is required

to be considered by granting the compassionate

appointment to the dependent of the deceased

employee.

5.2. In support of his submissions,

reliance was placed on the decision of this

Court in case of Dilipkumar B. Rethaliya

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versus State of Gujarat and Others rendered on

14.09.2016 in Special Civil Application No.866

of 2010 to submit that after considering the

various case laws on the subject, the learned

Single Judge of this Court has held that the

scheme as prevalent on the date of application

in the facts of the case will have to be

adhere to.

5.3. It was further submitted that even in

the decision of the Hon'ble Supreme Court in

case of Central Bank of India (Supra) it was

held that consideration for compassionate

appointment must be strictly in accordance

with the prevalent rules for compassionate

appointment applicable to the

deceased/prematurely retired employee. Learned

advocate Mr.P.C.Chaudhari therefore submitted

that the subsequent Government Resolution

cannot be applied retrospectively for giving

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lumpsum payment in lieu of appointment on

compassionate ground.

6. Having heard the learned advocates for the

respective parties, the following facts are

not in dispute :

(i) The deceased-late Mukundbhai

Vasantbhai Vaghela expired on

05.01.2011;

(ii) An application for compassionate

appointment was made on 22.01.2011;

(iii) The said application was not

considered for one year and ultimately,

the same was returned back by the

petitioner-Corporation without any

action on 08.12.2012;

(iv) A reference was made to the

Tribunal in the year 2013 as to whether

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the compassionate appointment is

required to be granted considering the

Government Resolution dated 10th March,

2000 or not.

7. The petitioner in the written statement

filed before the Tribunal submitted that the

petitioner was ready and willing to pay the

compensation as per the Government Resolution

dated 05.07.2011 in lieu of the compassionate

appointment amounting to Rs.4 Lakhs to the son

of the deceased-employee, however, the

Tribunal has rightly considered that on the

date of death, the policy prevalent for giving

appointment on compassionate ground was as per

the Government Resolution dated 10.03.2000.

The Tribunal has also gone through the oral

and documentary evidences, however, the

petitioner-Corporation has failed to submit

any relevant document or resolution of the

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Government which makes the Government

Resolution dated 05.07.2011 to be applicable

from retrospective effect. The Government

Resolution dated 05.07.2011 is placed on

record at Annexure "C" wherein, it is

stipulated that Government Resolution dated

10.03.2000 has been modified which was an

amended policy meaning thereby that the policy

which has come into effect from 05.07.2011 has

been made effective from the date of the

Government Resolution and the same policy

would not apply to the death/premature

retirement of the employee which has taken

place prior to 05.07.2011.

8. The Co-ordinate Bench of this Court in

case of Dilipkumar B. Rethaliya (Supra) has

held as under :

"5. Reliance is placed upon SBI

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where under a similar circumstances, on floating a new scheme by the Bank containing a clause that the pending application would be considered in terms of the said new scheme, the Supreme Court held that the new scheme is required to be followed and the applications could not have been considered in terms of the old scheme.

6. Similar such issue has come up in Canara Bank & Anr. v.

M.Maheshkumar (2015) 7 SCC 412 wherein Rajkumar (supra) was cited and referred to in paragraph No.4 of the said judgment. In the said decision, after considering the various pronouncements including SBI v Jaspal Kaur (2007) 9 SCC 571 and Bhawani Prasad Sonkar v. Union of India (2011) 4 SCC 209, the Supreme Court made following observations in paragraph No.17:

"17. Applying these principles to the case in hand, as discussed

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earlier, respondent's father died on 10.10.1998 while he was serving as a clerk in the appellant bank and the respondent applied timely for compassionate appointment as per the scheme 'Dying in Harness Scheme' dated 8.05.1993 which was in force at that time. The appellant-bank rejected the respondent's claim on 30.06.1999 recording that there are no indigent circumstances for providing employment to the respondent. Again on 7.11.2001, the appellant-bank sought for particulars in connection with the issue of respondent's employment. In the light of the principles laid down in the above decisions, the cause of action to be considered for compassionate appointment arose when the Circular No.154/1993 dated 8.05.1993 was in force. Thus, as per the judgment referred in Jaspal Kaur's case, the claim cannot be decided as per 2005 Scheme

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providing for ex-gratia payment. The Circular dated 14.2.2005 being an administrative or executive order cannot have retrospective effect so as to take away the right accrued to the respondent as per circular of 1993."

7. The Supreme Court in Canara Bank & Anr. v. M.Maheshkumar (supra) has approved Jaspal Kaur (supra) and Bhawani Prasad Sonkar v. Union of India

respectively thus:

"15. By perusal of the judgment in Jaspal Kaur's case, it is apparent that the judgment specifically states that claim of compassionate appointment under a scheme of a particular year cannot be decided in the light of the subsequent scheme that came into force much after the claim.

16. The same principle was

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reiterated by this Court in the case of Bhawani Prasad Sonkar vs. Union of India & Ors., (2011) 4 SCC 209, wherein it was 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

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appointment has been recognised as an exception to the general rule, 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 v. State of Haryana, (1994) 4 SCC 138, while emphasising that a compassionate appointment cannot be claimed as a matter of course or in posts above Classes III and IV, this Court had observed that: (SCC p. 140, para 2)

"2. ...The whole object of

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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

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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 dependent 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 [pic]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

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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





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              sudden         crisis          occurring             in        the

family on account of the death or medical invalidation of the breadwinner 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
              dependents                       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."

8. Following principles were also laid down in Canara Bank & Anr. v.

M.Maheshkumar (supra) in paragraph

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No.20:

"20. In Balbir Kaur & Anr. vs. Steel Authority of India Ltd. & Ors., (2000) 6 SCC 493, while dealing with the application made by the widow for employment on compassionate ground applicable to the Steel Authority of India, contention raised was that since she is entitled to get the benefit under Family Benefit Scheme assuring monthly payment to the family of the deceased employee, the request for compassionate appointment cannot be acceded to. Rejecting that contention in paragraph (13), this Court held as under:-

"13. ....But in our view this Family Benefit Scheme cannot in any way be equated with the benefit of compassionate appointments. The sudden jerk in the family by reason of the death of the

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breadearner can only be absorbed by some lump-sum amount being made available to the family -- this is rather unfortunate but this is a reality. The feeling of security drops to zero on the death of the breadearner and insecurity thereafter reigns and it is at that juncture if some lump-sum amount is made available with a compassionate appointment, the grief-stricken family may find some solace to the mental agony and manage its affairs in the normal course of events. It is not that monetary benefit would be the replacement of the breadearner, but that would undoubtedly bring some solace to the situation."

9. It can be noticed that in Canara Bank & Anr. v. M.Maheshkumar (supra), Raj Kumar (supra) was cited and referred to in paragraph No.5 of the judgment alongwith Umesh Kumar Nagpai v. State of Haryana

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(1994) 4 SCC 138; Sail v. Madhusudan Das (2008) 15 SCC 560; Union of India v. B. Kishore (2011) 13 SCC 131 and State of Haryana v. Naresh Kumar Bali (1994) 4 SCC 448. It also can be noticed that the decision in (01) SBI v Jaspal Kaur (2007) 9 SCC 571, (02) SBI v. Raj Kumar 2010 (11) SCC 661, (03) Bhawani Prasad Sonkar v. Union of India & Ors., (2011) 4 SCC 209 and (04) Canara Bank and another v. M. Mahesh Kumar, (2015) 7 SCC 412, respectively were rendered by coordinate Bench of the Supreme Court constituting equal strength. Jaspal Kaur (supra) held that the application for compassionate appointment has to be decided in the light of the scheme prevalent on the date of application; whereas in Raj Kumar (supra) it was held that the scheme as prevalent on the date of the consideration of the application will have to be considered for the purpose of compassionate appointment. The view expressed in Jaspal Kaur was reiterated in Canara Bank and another v. M.

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Mahesh Kumar. The question therefore is which of the views can be followed by this Court. The issue is no more res integra in view of the decision rendered by Full Bench of this Court in Gujarat Housing Board, Ahmedabad v Nagjibhai Laxmanbhai & Ors., AIR 1986 Gujarat 81 wherein it has been held in paragraph 12 that in case of conflict of two decisions (binding decisions) the later view would prevail; relevant part of which reads thus:

"12. ... We also declare that when there are two conflicting decisions of the Supreme Court consisting of equal number of Judges, the later of the two decisions should be followed by the High Courts and other Courts."

Thus, in the opinion of this Court, the view expressed in Canara Bank & Anr. v. M.Maheshkumar (supra) would prevail. Following the said decision, in

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the opinion of this court, the scheme as prevalent on the date of the application in the facts of the present case will have to be adhered to."

9. The Hon'ble Supreme Court in case of

Central Bank of India (Supra) has also taken

note of the decision of the Canara Bank

(Supra) which reads as under :

"16. Canara Bank (supra), is not an authority for the proposition that financial criteria cannot be the ground for rejection of a claim for compassionate appointment. Rather, this Court quoted with approval the following paragraph in the earlier judgment of this Court in Umesh Kumar Nagpal vs. State of Haryana reported in (1994) 4 SCC 138 :-

"2. ... The whole object of granting compassionate employment is thus to enable the family to tide over the

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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

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to the rule is justifiable and valid since it is not discriminatory. The favourable treatment given to such dependant of the deceased mployee 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.'

* * *

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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 de hors 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

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medical invalidation of the breadwinner 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
              dependents                              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."

17. In Balbir Kaur (Supra), this Court held on facts that a family benefit scheme assuring monthly payment to the family of a deceased employee was not a substitute for compassionate

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appointment. The finding was rendered in the context of the applicable circular pertaining to appointment on compassionate grounds.

18. In Umesh Naraoji Ugale (supra), the compassionate appointment was declined on the ground of a ban on compassionate appointment imposed on 22.08.2005 which was continued by a resolution dated 22.03.2012. This Court, however, found on facts that a relaxation had initially been granted for persons on the wait list till 31.12.2011. Thereafter, by a resolution dated 01.03.2014, the Government of Maharashtra had decided to increase the recruitment of Group 'C' and 'D' posts on compassionate ground from 5% to 10?% of vacant posts of Class 'C' and 'D' from 2012. The Court, therefore, concluded that the Government was continuing to make appointments on compassionate ground despite ban of 2005. The question of financial criteria for grant of compassionate appointment was not at all in issue in Yogesh

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Nagraoji Ugale (supra)."

10. In paragraph No.20 of the decision of the

Central Bank of India (Supra) quoted herein

above, the Apex Court after considering that

the compassionate appointment is an exception

to the rule of equality has held that

consideration for compassionate appointment

must be strictly in accordance with the

prevalent rules for compassionate appointment