Gujarat High Court
Virendra S/O Kalubhai Sitapara vs Jetpur Navagadh Nagar Palika on 19 June, 2025
Author: A.S. Supehia
Bench: A.S. Supehia
NEUTRAL CITATION
C/LPA/497/2023 ORDER DATED: 19/06/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 497 of 2023
In R/SPECIAL CIVIL APPLICATION NO. 5724 of 2021
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VIRENDRA S/O KALUBHAI SITAPARA
Versus
JETPUR NAVAGADH NAGAR PALIKA
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Appearance:
MR ANAND B GOGIA(5849) for the Appellant(s) No. 1
MR RB GOGIA(5850) for the Appellant(s) No. 1
MR BHAVESH P TRIVEDI(2731) for the Respondent(s) No. 1
MR RR TRIVEDI(941) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MR.JUSTICE R. T. VACHHANI
Date : 19/06/2025
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)
1. ADMIT. Learned advocate Mr.Trivedi waives service of notice of
admission.
2. The present Letters Patent Appeal emanates from the common oral
judgment dated 16.01.2023 passed in present Special Civil Application
Nos.5724 of 2021 and 5735 of 2021. Learned Single Judge, in set of facts
of two employees who have filed application seeking compassionate
appointment, has decided such case by the common order dated
16.01.2023.
3. In the present case, the father of the appellant passed away on
27.08.2018. The facts indicate that his father raised an industrial dispute
with regard to the regularisation of his service which culminated into
reference proceedings and the Industrial Tribunal, by the award dated
26.02.2016, directed the Nagarpalika to regularise the service of the
father of the appellant and after Letters Patent Appeal No.1143 of 2018 of
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the respondent - Nagarpalika was dismissed by this Court vide order
dated 28.03.2019, the father of the appellant was regularised in service
by the order dated 10.08.2020 and for the first time he made an
application for seeking compassionate appointment 07.09.2020 since his
father passed away on 27.08.2018. The same was rejected by the
Nagarpalika on 06.11.2020 by assigning reason that father of the
appellant did not complete five years of regular service and he was not
regularly appointed. During the course of hearing before us and before
the learned Single Judge, learned advocate Mr.Trivedi appearing for the
respondent - Nagarpalika has specifically contended that the application
filed by the appellant seeking compassionate appointment, was beyond
the period of six months, as prescribed in the policy and also that it was
not filed within the prescribed format with an undertaking. It is
specifically mentioned in the affidavit filed by the respondent
Nagarpalika that the applications filed by the appellant, and the appellant-
original writ petitioner of Special Civil Application No.5735 of 2021 was
beyond the period of six months.
4. Learned advocate Mr.Gogia submitted since the reasons of not
filing the application as per the prescribed format of the scheme and
limitation of six months are not assigned in the impugned order, the same
cannot be raised before this Court.
5. The aforesaid contention does not merit acceptance and this Court,
while examining the rival contentions raised before us cannot shut its
eyes to the fundamental requirement of the scheme of filing an
application, as prescribed in the scheme, which is mandatory for the
dependents of the employees of the Nagarpalika for claiming the benefits
of compassionate appointment. The issue is of both fact and law. The
Court can always examine the facts in light of the provisions of law,
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which has been cited before us. It cannot ignore that the appellant has not
filed an application within a period of six months and also the same is not
filed in the prescribed format without undertaking, which is vital
requirement of the policy of compassionate appointment. If the Court
ignores such lacuna or defect and condones the deficiency, it would be
doing injustice to the employer and in fact would be compelling the
employer to act illegally though the appellant in the first place has not
followed the mandate of the scheme.
6. At this stage, we may refer to the scheme dated 18.10.2017, which
has been adopted by the respondent - Nagarpalika. The said scheme is
promulgated by the Urban Housing and Urban Development,
Government of Gujarat. As per Clause No.2(2) thereof, the legal heirs or
the dependent of Class-IV employees, who have worked for at least five
years of regular service, are entitled to apply for compassionate
appointment. Relevant Clause No.7, which has been considered by the
learned Single Judge and incorporated in the impugned order, reads thus:
"7 Time limit for submitting an application:
(a) As per the policy of the scheme, an application complete in all respect is to be
filed immediately on the death of concerned Safai Kamdar for getting compassionate
appointment. Application filed after a period of six months of the death of concerned
Safai Kamdar in any way will not be considered."
7. As per the limitation provided in the scheme for making an
application for claiming the compassionate appointment, the application
was required to be filed by the dependent of Safai Kamdar for getting
compassionate appointment; within a period of six months and if the
same is beyond the period of six months, the same is required to be
rejected.
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8. Clause No.9 of the said scheme is also relevant, which mentions
about filing of an undertaking on behalf of the dependent of the deceased
employee to the effect that he would maintain his family after having
been appointed on compassionate grounds and will not ignore their
interest and in case the appointee ignores the family members, the
compassionate appointment will be terminated. Such an undertaking is to
be filed as per Appendix-2 attached with the scheme. At this stage, we
may reiterate the legal precedent set by the Supreme Court in the cases of
compassionate appointment. The Apex Court, in the case of State of
Himachal Pradesh vs. Parkash Chand, 2019 (4) S.C.C. 285, on the power
of High Court, while exercising judicial review under Article 226 of the
Constitution, while examining the scheme or policy of compassionate
appointment has held thus:
"11 In the exercise of judicial review under Article 226 of the Constitution, it was not
open to the High Court to re-write the terms of the policy. It is well-settled that
compassionate appointment is not a matter of right, but must be governed by the
terms on which the State lays down the policy of offering employment assistance to a
member of the family of a deceased government employee. [Umesh Kumar Nagpal
Vs. State of Haryana, 1994 4 SCC 138, General Manager (D&PB) Vs. Kunti Tiwary,
2004 7 SCC 271,Punjab National Bank Vs. Ashwani Kumar Teneja, 2004 7 SCC
265, State Bank of India Vs. Somvir Singh, 2007 4 SCC 778, Mumtaz Yunus Mulani
Vs. State of Maharashtra, 2008 11 SCC 384,Union of India Vs. Shashank Goswami,
2012 11 SCC 307, State Bank of India Vs. Surya Narain Tripathi, 2014 15 SCC 739
and Canara Bank Vs. M. Mahesh Kumar, 2015 7 SCC 412]
12 For the above reasons, we are of the view that the judgment of the High Court is
unsustainable. The High Court has virtually re-written the terms of the policy and has
issued a direction to the State to consider applications which do not fulfill the terms
of the policy. This is impermissible."
9. Again in the case of Bank of Baroda & Ors., vs. Baljit Singh, 2023
(13) S.C.C. 343, the Supreme Court has held thus:
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"13. In Balbir Kaur vs. Steel Authority of India Ltd., (supra)it was observed that the
family benefit scheme assuring monthly payment to the family of deceased employee
on the facts therein was not a substitute for compassionate appointment by the Steel
Authority of India - Respondent in the said case. The said case proceeds on its own
facts. The said judgment can be distinguished from the facts of the instant case as the
1998 Scheme specifically disentitles a candidate for compassionate appointment
benefit on the application of the formula for calculation of monthly income if the
same is less than 60% of the total emoluments which the deceased was drawing at the
time of his death. The object is that it is only when a deceased employees family is in
penury and without any source of livelihood when the employee died in harness,
compassionate appointment can be considered. Since appointment on compassionate
basis is an exception to the general rule for appointment by an open invitation, the
exception has to be resorted to only when the candidate and his family is in penury so
as to provide immediate succor on the death of the employee in harness. The same has
been observed in General Manager(D&PB) vs. Kunti Tiwary (supra). In N.C.Santhosh
vs. State of Karnataka(supra) a three Judge Bench of this Court reiterated that
appointment on compassionate basis is a concession and not a right and the criteria
laid down in the Rules and Schemes applicable must be satisfied by all aspirants.
Therefore, the case for compassionate appointment has to be considered in accordance
with the prevalent Scheme. Similarly, in State of Himachal Pradesh Vs. Shashi
Kumar, (supra), this Court has observed that compassionate appointment being an
exception to the general rule, the dependents of deceased government employee are
made eligible by virtue of the policy of compassionate appointment and they must
fulfil the terms of the policy which are framed by the States/Employers.
14. It is to be noted that in the instant case, the respondent filed a suit for declaration
and mandatory injunction seeking appointment on compassionate basis which was
decreed by the Trial Court and upheld and affirmed by the High Court. In State of
Himachal Pradesh vs. Parkash Chand reported in (2019) 4 SCC 285 , it has been
categorically held that a direction by a High Court to consider cases for
compassionate appointment dehors the terms of the policy is impermissible as it
would amount to re-writing the terms of the policy. This aspect has been overlooked
by the High Court in the instant case. In a similar vein, in Indian Bank vs. Promila
reported in (2020) 2 SCC 729 , it has been observed that eligibility for
compassionate appointment must be as per the applicable scheme and the courts
cannot substitute a scheme or add or subtract from the terms thereof in exercise of
judicial review. The aforesaid dicta would also apply to a suit filed seeking the relief
of compassionate appointment."
10. Thus, the legal precedent on exercise of power of judicial review
under Article 226 of the Constitution while examining the cases of
compassionate appointment is no more res integra. The Apex Court has
held that the High Court cannot issue any direction to consider the case
for compassionate appointment de hors the terms of the policy as it would
amount to re-writing the policy, since the dependents of deceased
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government employee are made eligible by virtue of the policy of
compassionate appointment and hence they must fulfil the terms of the
policy which are framed by the States/Employers.
11. The appellant has miserably failed to point out that he has made an
application within a period of six months as per the proforma of the
scheme along with an undertaking, hence we are not inclined to interfere
with the order passed by the learned single judge.
12. Accordingly, the present appeal fails and the same is hereby
dismissed.
(A. S. SUPEHIA, J)
(R. T. VACHHANI, J)
MARY VADAKKAN/ 58
