Gujarat High Court
Jigar Jitendrakumar Nayak Son Of ... vs Ahmedabad Municipal Transport Service ... on 11 September, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11282 of 2018
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JIGAR JITENDRAKUMAR NAYAK SON OF JITENDRAKUMAR
BALDEVBHAI NAYAK
Versus
AHMEDABAD MUNICIPAL TRANSPORT SERVICE THROUGH CHAIRMAN
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Appearance:
MS SHEEJA G NAYAR(5458) for the Petitioner(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 11/09/2025
ORAL ORDER
1. By way of present petition, the petitioner herein
has prayed for the following reliefs:
"A. Your Lordships may be pleased to issued a
writ of certiorari or any appropriate writ, order of
direction in the nature of certiorari, quashing and
setting aside decision dated 20.04.2017 passed by
Labour Welfare Officer, Ahmedabad Municipal
Transport Service, Jamalpur, Ahmedabad and further
consider the case of the petitioner for compassionate
appointment, expeditiously, so as to give immediate
relief and respite to the petitioner, thereby, achieve
the aim and object sought by compassionate
appointment policy;
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OR IN THE ALTERNATIVE
B. Your Lordship may be pleased to issue a writ
of mandamus or any appropriate writ, order of
direction in the nature of mandamus, directing the
respondent authority to consider the case of the
petitioner for payment of Lump sum Compensation a
per their own Circular Dated 22.12.2016 and if found
eligible, release the said amount as expeditiously as
possible, within period of one month;
D. Any other and further relief as may be deemed
fit just and proper may kindly be granted in favour
of the Petitioner, in the interest of justice."
2. Heard learned advocates. Rule returnable forthwith.
The learned advocates for the respective parties have jointly
submitted that the Coordinate Bench of this Court has
passed an order in the case of similarly situated person vide
order dated 19.12.2024 recorded on Special Civil Application
No.2356 of 2018. They have fairly submitted that appropriate
order may be passed on the same line.
3. The petitioner herein is the son of the deceased -
Jitendrakumar Baldevbhai Nayak; having expired due to
cancer on 30.12.2016 and was working as a Driver with the
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respondent No.1. Upon death of the petitioner's father, as
referred above, the petitioner applied for appointment on
compassionate ground on 17.02.2017 duly produced at
Annexure - C. The petitioner's name figured in the waiting
list which is duly produced at page 67, dated 01.04.2016.
4. Learned advocate appearing for the petitioner
relied on the facts, referred above, and submitted that the
petitioner's husband expired while working with the
respondent on 30.12.2016 as Driver. The petitioner herein
applied for appointment on compassionate ground however, in
view of the waiting list wherein, 325 employees whose legal
heirs are in the waiting list, the petitioner's application is
kept pending.
4.1 It is submitted that the remaining Rs.8,00,000/- be
disbursed in favour of the petitioner in light of the policy
applicable to the petitioner on the date of death of
petitioner's husband i.e. 30.12.2016. Reliance is placed on the
policy of the AMC for compassionate appointment dated
22.12.2016. Placing reliance of the same, it is submitted that
the said policy is applicable in the facts of the present case.
4.2 Reliance is also placed on the order passed by the
Hon'ble Division Bench in Letters Patent Appeal No.475 of
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2016 dated 16.06.2016 more particularly, paragraph 13 of the
said order wherein, it is held that the AMTS is managed by
Transport Manager and the AMC has adopted the service
oriented attitude and it is not a firm or a company but, a
service organization and AMTS is voluntary service managed
by the AMC under the BPMC Act. It is held that the policy
framed by the AMC is also applicable to AMTS. In view of
the aforesaid, it was held that the petitioner in Special Civil
Application No.13428 of 2012 was entitled for the lumpsum
compensation as per the policy of the AMC. It is submitted
that the aforesaid was subject matter of challenge before the
Hon'ble Apex Court wherein, the appeal being Special Leave
to Appeal (C) No.27561 of 2016 came to be dismissed by
order dated 16.11.2018.
4.3 Reliance is placed on the ratio laid down by the
Hon'ble Apex Court in case of Raghunath Rai Bareja and
Anr. vs. Punjab National Bank & Ors. reported in (2007) 2
SCC 230 : 2006 SCC Online SC 1348 . Reliance is also placed
on the ratio laid down by the Hon'ble Apex Court in case of
Ashwani Kumar Singh vs. U.P. Public Service Commission &
Ors. reported in (2003) 11 SCC 584 : 2004 SCC (L&S) 95 :
2003 SCC Online SC 684.
4.4 Placing reliance on the aforesaid, it is submitted
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that the petitioner herein is governed by the policy prevailing
on the date of death of the petitioner's husband i.e.
19.07.2016 and policy of AMC for compassionate appointment
dated 22.12.2016 would be applicable to the petitioner. It is
also submitted that at the relevant point of time, the AMTS
had not come out with any policy. It is only in 2022 that
the AMTS has come out with its own policy which would not
govern the present petitioner.
5. Learned advocate appearing for the respondent
authority vehemently submitted that by the Resolution of the
Transport Committee dated 04.10.2022 duly accepted by the
Committee, it is resolved to pay 50% of the amount of
compensation to the concerned applicants. It is submitted that
the petitioner herein is governed by the aforesaid Resolution
of 04.10.2022 and the compensation payable to the petitioner
is duly paid in accordance with the said policy.
5.1 Reliance is placed on the order passed in Special
Civil Application No.3175 of 2016. Reliance is also placed on
the order passed in Special Civil Application No.3414 of 2002
wherein, in the said petition also, the dispute was with
respect to the retiral benefits of the employees in which, the
Court considering the financial condition of the respondent -
corporation, did not interfere with respect to the grant of the
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retiral benefits. It is submitted that the present petition is
with respect to compassionate appointment and as such no
fundamental right accrues in favour of the petitioner for
consideration for compassionate appointment. It is submitted
that however, the petitioner is granted the benefits that are
available to the petitioner in accordance with the policy.
Placing reliance on the aforesaid submissions, it is submitted
that the present petition be dismissed.
6. Learned advocate appearing for the petitioner
reiterated the contentions raised earlier and submitted that
the prayers as prayed for be allowed wherein, the petitioner's
husband expired on 19.07.2016 and at the relevant point of
time, the policy of the AMTS was not inforce and the
petitioner is governed by the policy of AMC dated 22.12.2016.
Analysis:-
7. Having heard the learned advocates appearing for
the respective parties, it emerges that the petitioner's
husband expired on 19.07.2016. The petitioner applied for
compassionate appointment by application dated 3/12.08.2016.
The petitioner's name figured in the waiting list which is
duly produced at page 67 at serial No.250. The petitioner
made various representations to the respondent authority
seeking compassionate appointment however, the petitioner
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was informed by the impugned communication dated
22.12.2017, which is duly produced at Annexure - A to the
petition, that there are 325 legal heirs of employees in the
waiting list for compassionate appointment and the
respondent is not in a position to appoint the present
petitioner therefore, the petitioner's application is also put in
the waiting list.
10. It is apposite to refer to the order passed by the
Hon'ble Division Bench in Letters Patent Appeal No.475 of
2016 dated 16.06.2016. Paragraphs 11, 12 and 13 of the said
order read thus:
"11. From the various provisions contained in the
BPMC Act, it is revealed that AMC shall constitute
different committees like Standing Committee as per
Section 20, Special and Ad hoc Committees as per
Sections 30 and 31 and Joint Committees as per
Section 32 of the BPMC Act. However, merely because
separate Transport Committee is constituted as per the
provisions of the BPMC Act, it does not mean that it is
a separate entity. Further, there is no denial to the
averment made by the petitioner in her further
rejoinder filed on 15.10.2015, and more particularly para
4 of the said rejoinder, which reads as under:
"4. It is also contended that the AMTS has
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not adopted the policy of lump sum
compensation of government of Gujarat or the
AMC. Said contention is also not true.
Because from very beginning it is the case of
the petitioner that the AMTS is one of the
division of AMC administered and managed by
AMC. All the rules and regulations and the
policies of the AMC is applicable to the AMTS
also. The employees and the officers of AMC
and AMTS are inter-transferable. This also
proves by one another document available from
the internet that shows that the AMTS is
managed and administered by the AMC."
12. There is also no denial with regard to the
document produced by the petitioner along with
aforesaid rejoinder which is taken from the concerned
site of AMTS. The relevant part of the said document
is produced at page 151 of the compilation, which reads
as under:
"AMTS is managed by Transport Manager
under Transport Committee and Municipal
Corporation from the very inspection (sic
inception), the organization has adopted service
oriented attitude, so one should not consider it
as a firm or a company, but as a service
organization. AMTS is voluntary service
managed by Municipals Corporation under
B.P.M.C. Act."
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13. Thus, from the aforesaid facts and circumstances
of the present case, it is clear that AMTS is managed
by Transport Manager and AMC which has adopted
service oriented attitude and it is not a firm or a
company but a service organization and AMTS is
voluntary service managed by AMC under BPMC Act.
In short, the policy framed by AMC is also applicable
to AMTS. In view of the above and in view of the
reasoning given by the learned Single Judge, we are of
the opinion that no error is committed by the learned
Single Judge by giving the direction to the present
appellants to grant lump sum compensation as per the
policy of AMC to the petitioner with interest. The
present appeal being devoid of any merit is dismissed."
11. It is also apposite to refer to the order passed by
the Hon'ble Apex Court in Special Leave to Appeal (C)
No.27561 of 2016 dated 16.11.2018 which reads thus:
"Learned counsel for the petitioner submits that
the payment as directed by High court has already been
made. The counsel for the respondent does not dispute
the said statement. In above view of the matter, the
Special Leave Petition has virtually become infructuous.
In the facts of the case, we do not find any good
ground to entertain the Special Leave Petition. The
Special Leave Petition is dismissed. Pending applications
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if any, stand dismissed. We have not entered into the
question of law involved."
12. The decisions relied upon by Mr. H.S. Munshaw,
learned advocate appearing for the respondent, in the opinion
of this Court, are not applicable in the facts of the present
case.
12.1 In the facts of the Special Civil Application
No.3175 of 2016, the petitioner in the said petition was at
serial No.177 and it was held that when the petitioner was
lower in merit, the case of the petitioner could not be
considered.
12.2 In the facts of the Special Civil Application
No.3414 of 2002, the said petition dealt with retiral benefits
of the petitioner such as Provident Fund etc.
13. At this stage, it is apposite to refer to the ratio
laid down by the Hon'ble Apex Court in case of Canara
Bank & Anr. vs. M. Mahesh Kumar , reported in (2015) 7
SCC 412. Relevant paragraphs of the said decision read thus:
"12. The main question falling for consideration is
whether the Scheme passed in 2005 providing for ex-
gratia payment or the Scheme then in vogue in 1993
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providing for compassionate appointment is applicable to
the respondent.
13. The appellant Bank has placed reliance upon the
judgment of this Court in Jaspal Kaur's case (supra) to
contend that the respondent's case cannot be considered
on the basis of 'Dying in Harness Scheme 1993' when
the new Scheme of 2005 providing for ex-gratia payment
had been put in place.
14. In Jaspal Kaur's case (supra), Sukhbir Inder
Singh employee of State Bank of India, Record Assistant
(Cash & Accounts) passed away on 1.08.1999. Widow of
the employee applied for compassionate appointment in
State Bank of India on 5.02.2000. On 7.01.2002, the
competent authority of the bank rejected the application
of Jaspal Kaur in view of the Scheme vis- a-vis the
financial position of the family. Against that decision of
the competent authority, the respondent filed writ
petition before the Punjab and Haryana High Court
which has directed to consider the case of Jaspal Kaur
by applying the Scheme formulated on 4.08.2005 when
her application was made in the year 2000. In that
factual matrix, this Court has directed that dispute
arising in the year 2000 cannot be decided on the basis
of a Scheme that was put in place much after the
dispute.
15. By perusal of the judgment in Jaspal Kaur's case,
it is apparent that the judgment specifically states that
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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 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 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
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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 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
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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 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
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the 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 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."
(emphasis supllied)
17. Applying these principles to the case in hand, as
discussed 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.
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Thus, as per the judgment referred in Jaspal Kaur's
case, the claim cannot be decided as per 2005 Scheme
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."
13.1 It is also apposite to refer to the ratio laid down
by the Hon'ble Apex Court in case of M/s. Radha Krishan
Industries vs. State of Himachal Pradesh , reproted in AIR
2021 SC 2114. Paragraph 27 of the said decision reads thus:
"27. The principles of law which emerge are that :
(i) The power under Article 226 of the Constitution to
issue writs can be exercised not only for the
enforcement of fundamental rights, but for any other
purpose as well;
(ii) The High Court has the discretion not to entertain
a writ petition. One of the restrictions placed on the
power of the High Court is where an effective alternate
remedy is available to the aggrieved person;
(iii) Exceptions to the rule of alternate remedy arise
where (a) the writ petition has been filed for the
enforcement of a fundamental right protected by Part
III of the Constitution; (b) there has been a violation
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of the principles of natural justice; (c) the order or
proceedings are wholly without jurisdiction; or (d) the
vires of a legislation is challenged;
(iv) An alternate remedy by itself does not divest the
High Court of its powers under Article 226 of the
Constitution in an appropriate case though ordinarily, a
writ petition should not be entertained when an
efficacious alternate remedy is provided by law;
(v) When a right is created by a statute, which itself
prescribes the remedy or procedure for enforcing the
right or liability, resort must be had to that particular
statutory remedy before invoking the discretionary
remedy under Article 226 of the Constitution. This rule
of exhaustion of statutory remedies is a rule of policy,
convenience and discretion; and
(vi) In cases where there are disputed questions of fact,
the High Court may decide to decline jurisdiction in a
writ petition. However, if the High Court is objectively
of the view that the nature of the controversy requires
the exercise of its writ jurisdiction, such a view would
not readily be interfered with."
14. In the facts of the present case, the petitioner
herein is governed by the Policy dated 22.12.2016. The said
policy is governed by the Circular No.65 issued by the
Ahmedabad Municipal Corporation. The petitioner's husband
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expired on duty on 19.07.2016 i.e. after 01.04.2016 and was a
Class - III/IV employee and Clause (1) of the said policy
provides for lumpsum compensation of Rs.8,00,000/-. Reliance
as placed by the respondent authority on the policy framed
by the respondent dated 11.10.2022 is not applicable in the
case of the petitioner herein in view of the fact that the said
policy was not in existence at the relevant point of time. In
the opinion of this Court, the petitioner herein is governed
by the policy prevailing as on the date of the death of the
deceased. At the cost of repeatation, the petitioner's husband
expired on 19.07.2016 and the policy as on that date was of
22.12.2016 and the petitioner is governed by the said policy
and is entitled to be considered for the compensation in
terms of the Policy dated 22.12.2016.
14.1 In the opinion of this Court, the aforesaid issue is
no longer res-integra in light of the order passed by the
Hon'ble Division Bench in Letters Patent Appeal No.475 of
2016 wherein, it is held that the Policy framed by the AMC
is also applicable to the AMTS and the direction is issued to
the appellants in the said appeal to grant lumpsum
compensation as per the policy of the AMC to the petitioner
with interest. The case of the petitioner herein is also
identical.
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15. In light of the aforesaid position of law and in the
facts of the present case, in exercise of extra ordinary
jurisdiction under Article 226 of the Constitution of India, the
impugned order dated 22.12.2017 is quashed and set aside.
Accordingly, the consequential benefits that arise be granted
to the petitioner herein.
15.1 The amount of Rs.8,00,000/- granted as
consequential benefits to the petitioner, which shall be
deposited before the Registry by the respondent, if not
deposited, within a period of eight weeks from the date of
receipt of this order.
15.2 The amount of Rs.8,00,000/- payable to the
petitioner that is lying with the Registry of this Court, be
disbursed in favour of the petitioner in accordance with the
policy of 22.12.2016 along with amount of interest, if any.
The aforesaid exercise be undertaken within a period of eight
weeks from the date of receipt of this order.
16. The present petition is allowed. Rule is made
absolute.
(SANDEEP N. BHATT,J)
M.H. DAVE
