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Gujarat High Court · body

2021 DIGILAW 88 (GUJ)

Savitaben Devubhai Parmar v. State Of Gujarat

2021-02-02

UMESH A.TRIVEDI

body2021
JUDGMENT : 1. By way of this petition, the petitioner has prayed for granting her regular pay scale of Rs.2550-3200 as class-IV employee instead of monthly fixed amount of Rs.1500/- from 12.8.2004 i.e. date of her joining and to pay the arrears with 12% interest thereon. The husband of the petitioner was serving with the office of Sub Registrar, Cooperative Societies, Harij as Peon who died on 15.10.2000 while in service. 2. Pursuant to policy of the State Government, the petitioner applied for appointment on compassionate ground. After examining the case of the petitioner, the Gujarat Subordinate Service Selection Board (for short, ‘GSSSB’), who is authority to examine the cases of dependents of deceased employee to be appointed on compassionate ground, after she was found fulfilling the criteria according to the scheme recommended for appointment vide letter dated 26.2.2004 to the office of the Commissioner, Gujarat Vigilance Commission, Gandhinagar. The copy of the said letter is annexed with the petition at page No.6. The contents of the letter reflects that since she had crossed the upper age limit for the appointment to the post she was offered, in view of Government Resolution dated 7.9.2004, the Vigilance Commission was asked to grant / sanction relaxation in upper age limit. She was further recommended for the appointment in Class-IV as ‘Hamal’ on compassionate ground. The Vigilance Commission was also directed to examine original documents and to verify whether she fulfills all other criteria for the purpose of recruitment or not. By the very said letter, the ‘GSSSB’ had directed the Vigilance Commission to give her appointment immediately and to inform the concern Department as also ‘GSSSB’. 3. According to the case of the petitioner, on 3.3.2004, she had reported for duty with the office of the Gujarat Vigilance Commission, however, she was not permitted to resume the duty. Therefore, vide communication dated 12.4.2004, the ‘GSSSB’ directed her to join duty as ‘Sweeper’ in the office of Director, Scheduled Tribe Welfare Department, Gandhinagar in Class- IV. There also, she was not permitted to resume the duty and therefore, at last, ‘GSSSB’ vide a letter dated 9.7.2004, she was directed to resume duty in the office of Commissioner, Health and Medical Services and Medical Education (Health Section) as Class-IV employee and pursuant thereto, she resumed duty on 12.8.2004 at Community Health Center, Siddhpur. There also, she was not permitted to resume the duty and therefore, at last, ‘GSSSB’ vide a letter dated 9.7.2004, she was directed to resume duty in the office of Commissioner, Health and Medical Services and Medical Education (Health Section) as Class-IV employee and pursuant thereto, she resumed duty on 12.8.2004 at Community Health Center, Siddhpur. According to her case, she was offered appointment in Class-IV, after she was found suitable even under compassionate appointment scheme dated 10.3.2000 of the State Government. It is further the case of the petitioner that for the administrative non coordination between the departments and the ‘GSSSB’, she was not permitted to resume the duty, though directed to be appointed vide letter dated 26.2.2004 by ‘GSSSB’. 4. The day on which she joined the services i.e. 12.8.2004, she was appointed on fixed salary of Rs.1500/- per month pursuant to a resolution dated 15.6.2004 whereby, State Government has come out with another Resolution offering service to the dependent of an employee who died in harness on compassionate ground as ad-hoc appointment, that too, on fixed pay. 5. Mr.Anand Sharma, learned advocate for the petitioner submitted that the day on which she is found to be eligible and recommended for appointment by the competent authority under the scheme itself, the petitioner was entitled to have the appointment on and from that date under then existing scheme. Because of inter departmental non coordination with ‘GSSSB’, the petitioner cannot be deprived of the benefits. Had she been appointed on that date or before the change of policy, she would have drawn regular pay scale. It is further submitted that twice, before the change of policy regarding ad-hoc appointment on fixed pay, she was recommended for the appointment. It is because of non coordination and fault of the department, she could not be appointed prior to change of policy. Therefore, according to the submission of Mr.Sharma, learned advocate for the petitioner, she cannot be deprived of an appointment in a regular pay scale. 6. Mr.Sharma, learned advocate for the petitioner has further submitted that the policy which has been changed from 15.6.2004, cannot be applied retrospectively in the case of the petitioner so as to deprive her of regular salary and regular post in Class-IV cadre. 6. Mr.Sharma, learned advocate for the petitioner has further submitted that the policy which has been changed from 15.6.2004, cannot be applied retrospectively in the case of the petitioner so as to deprive her of regular salary and regular post in Class-IV cadre. It is only because of the fault on the part of the respondents, she could not be appointed prior to change of policy and therefore, she cannot be deprived of regular pay-scale and regular appointment as on the date of recommendation of ‘GSSSB’ for the purpose of appointment and all other benefits therefrom. 7. Mr.Sharma, learned advocate for the petitioner further submitted that the ‘GSSSB’ was the Authority to coordinate with different departments of the Government and entrusted the task of recommending for appointment and ascertaining the availability of regular vacancy in Class-III and IV post. He has further submitted that after petitioner was found suitable for the appointment under the scheme and on ascertainment of the availability, the petitioner was recommended on 26.2.2004 by ‘GSSSB’ to Gujarat Vigilance Commission, therefore, not permitting her to resume duty, she could not have been denied the appointment or at best, she could not be appointed on a fixed pay as an ad-hoc employee. 8. He has relied on a decision in the case of Mukesh and Another V/s. State of Bihar and others reported in (2017) 5 SCC 383 more particularly para-2 thereof wherein, a paragraph from a decision of another Supreme Court decision in the case of Vishwanath Pandey V/s. State of Bihar reported in (2013) 10 SCC 545 is quoted. According to his submission, the petitioners before the Supreme Court in the said case who were recommended for appointment on compassionate ground to Class-III or Class-IV prior to change of policy with effect from 1.7.2006 were directed to be appointed on a regular post on a regular pay-scale instead of fixed salary on the post where they were appointed. 9. Mr.Sharma, learned advocate for the petitioner submitted that the petitioner is entitled for the regular salary instead of fixed pay of Rs.1500/- per month in the scale of Rs.2550-3200 from 12.08.2004 till she was paid the fixed pay. 10. 9. Mr.Sharma, learned advocate for the petitioner submitted that the petitioner is entitled for the regular salary instead of fixed pay of Rs.1500/- per month in the scale of Rs.2550-3200 from 12.08.2004 till she was paid the fixed pay. 10. As against that, Ms.Megha Chitaliya, learned Assistant Government Pleader submitted that the day on which she is appointed i.e. 12.8.2004, she resumed the duty, the Government Resolution dated 15.6.2004 regarding ad-hoc appointments offered to the dependents of an employee dying in harness was in existence. Therefore, she has submitted that the case of the petitioner would be governed under the Government Resolution dated 15.6.2004 and therefore, she has been appointed on ad-hoc basis initially for five years on fixed pay. She has further submitted that the pay and salary would be paid to her the day on which she resumes the duty to the appointed post. Since the day on which she was appointed and resumed the duty, Government Resolution dated 15.6.2004 was in existence and therefore, her claim to grant pay scale of Rs.2550-3200 instead of fixed monthly amount of Rs.1500/- is not required to be entertained. Drawing attention of the Court to Clause-11 of that Scheme dated 15.6.2004, she has submitted that the said instruction contained in the aforesaid Government Resolution is to be made applicable in all cases of compassionate appointment wherein appointments are yet to be made and therefore, the petitioner is not entitled to the claim made in this petition. 11. Drawing attention to the further Resolution dated 7.9.2002 of the State Government more particularly para-5 thereof, she has submitted that whatever may be the pay-scale, pay or other conditions of service of the post on and from that date, the dependent of employee dying in harness is entitled for the pay-scale/pay or other conditions of services prevailing on the date of appointment. Therefore, according to her submission, the petitioner is not entitled to the claim made in this petition. 12. Drawing attention to the affidavit in-reply filed by the Administrative Officer, Office of the Commissioner of Health, Medical Services and Medical Education (Health Section), Gandhinagar under which the petitioner is serving, it is submitted that the petitioner was granted appointment to Class-IV cadre to that Department vide letter dated 9.7.2004 and she has been appointed i.e. subsequent to Government Resolution dated 15.6.2004. Therefore, according to the existing policy, at the time of appointment, she has been paid the salary. Therefore, she has submitted that the petition is without any merit and it is required to be rejected. 13. Having heard the learned advocates for the appearing parties and perusing the documents annexed with the petitioner as also Government Resolutions relied on, a deep look into it is required. 14. The interesting question whether the person who is recommended for appointment on compassionate ground under the policy is entitled to the pay scale and other conditions of services existing as on the date of recommendation or the actual date of appointment. 15. Here, in the present case, pursuant to the death of the husband of the petitioner while in service she applied and recommended for the purpose of appointment in Class-IV post vide first communication dated 26.2.2004 by the ‘GSSSB’, who was entrusted with the duty to scrutinize and recommend the appointment of the dependents of employee dying in harness having coordination with different departments regarding availability of clear vacancy for the purpose of appointment. The existing policy, while considering the case of the petitioner, is Resolution dated 10.03.2000. Under the Scheme, all the appointments on compassionate ground were to be made on regular basis against the available regular clear vacancies. No such appointments were to be made either as daily wager, casual worker, apprentice, ad-hoc or on contract basis. The ‘GSSSB’ was to coordinate between the departments of the Government to have the data of available clear vacancies and allotment of suitable candidate for the purpose of appointment. After considering the existing restriction on the recruitment, all departments of the Government were directed to furnish the details of the regular clear vacancies to ‘GSSSB’. It was further directed to have updated list of clear vacancies and maintain a register thereof for all the different departments of the Government as also different divisions of Sachivalaya. Under the said Scheme, it is suggested that normally appointments on compassionate ground is not restricted to the department, division or office where the employee dying in harness was serving but if in the same department where the deceased employee was serving and a clear vacancy is available, the dependents of deceased employee was to be accommodated in that very department. 16. 16. Vide a Resolution dated 7.9.2002 bearing Resolution No.DRT-1201-910(2)-A more particularly Clause-5 thereof states that despite whatever be the pay, pay-scale and other service conditions, the dependent is entitled for pay, pay-scale or other conditions of service as on the date when in reality he is offered appointment. 17. Considering the fact that the petitioner was recommended by the Authority i.e. ‘GSSSB’ for appointment on 26.2.2004, the Authority is expected to know, under their own Government Resolution, availability of clear vacancies and then only, such recommendations are to be made. Therefore, on 26.2.2004, when ‘GSSSB’ recommended appointment of the petitioner to Commissioner, Gujarat Vigilance Commission, it is presumed that there is a clear vacancy available where petitioner can be accommodated. If, for any reason, no appointment order is issued by the Gujarat Vigilance Commission where she was recommended by the recommending authority i.e. ‘GSSSB’, no fault can be found with the petitioner and she cannot be deprived of pay-scale, pay and other conditions of service, if not on the date of the recommendation of the ‘GSSSB’, but a day thereafter or a reasonable period of time but surely, before the change of policy dated 15.6.2004. 18. In the Government Resolution dated 7.9.2002 more particularly, Clause-5 thereof prescribes that despite the existing pay-scale, pay or other conditions of service to the post where claimant is entitled to be appointed on compassionate ground, the pay-scale pay or other conditions, existing on the date of appointment, shall be applicable to the said appointment, would not come to the rescue of the respondents. If after issuance of appointment order, there is any change in pay-scale, pay or any terms of service, a person cannot be deprived of pay-scale, pay or other terms of service existing on the date of issuance of appointment order. 19. Here, in the present case, the recommending authority for the purpose of appointment is determined by the State Government to be ‘GSSSB’. However, the Resolution expects coordination between the department and even ‘GSSSB’ to have data available about the clear existing vacancy in a different departments so as to make appointment against clear vacancies as per the existing policies. 19. Here, in the present case, the recommending authority for the purpose of appointment is determined by the State Government to be ‘GSSSB’. However, the Resolution expects coordination between the department and even ‘GSSSB’ to have data available about the clear existing vacancy in a different departments so as to make appointment against clear vacancies as per the existing policies. Therefore, on 26.2.2004, when ‘GSSSB’ recommended petitioner to be appointed in Class-IV to the office of Commissioner, Gujarat Vigilance Commission and petitioner made available herself for the purpose of appointment in the said department but she has not been issued the appointment order by the said department under any ground, no fault can be found with the petitioner. If Commissioner, Gujarat Vigilance Commission would have appointed her on recommendation by ‘GSSSB’ she would have been entitled to for pay-scale, pay and other terms and conditions of her service existing on that date. It is a lack of coordination, rather no coordination at all, between the recommending authority and the department of the State Government. The petitioner cannot be rendered sufferer for the legitimate right which was available to her, had she been appointed by the Gujarat Vigilance Commission. 20. As such, neither ‘GSSSB’ nor any other department where she was recommended for appointment have filed any affidavit in-reply controverting the assertion on oath that she was recommended for appointment by ‘GSSSB’ vide communication dated 26.2.2004 to the office of Commissioner, Gujarat Vigilance Commission, Gandhinagar. Thus, any subsequent change in the policy for the purpose of appointment on compassionate ground may be on a fixed pay for a particular period cannot be made applicable despite such clause being Clause No.5 of Resolution dated 7.9.2002 as referred to herein above because the respondents failed to give appointment despite clear recommendation after presumed available regular vacancy with it. Because, under the Government Resolution, ‘GSSSB’ is supposed to have updated information with regard to clear vacancy available with the different departments of the State Government as it being a recommending authority. At any rate, petitioner, for no fault of her, cannot be made to suffer and serve the State, which she has done, on a fixed pay without any other benefits with regard to terms and conditions of service. 21. The decision in the case of Mukesh and another (supra) relied on by the petitioner would be profitable to refer more particularly, para(2) therein. 21. The decision in the case of Mukesh and another (supra) relied on by the petitioner would be profitable to refer more particularly, para(2) therein. “2. By the aforementioned judgment, the Appeal filed by Vishwanath Pandey was allowed by this Court holding thus:- 8. We have heard the learned counsel for the parties and scrutinised the records. It is not in dispute that even though the District Compassionate Committee had made recommendations on 29-11-2005 that the appellant may be appointed on a Class III post, he was not given appointment because of the ban imposed by the State Government. It is also not in dispute that after lifting of the ban, the District Compassionate Committee recommended the appellant's appointment as teacher on compassionate ground and he was appointed against the vacant post by the District Superintendent of Education, Buxar. That order was neither rescinded nor modified by the competent authority on the premise that after coming into force of the 2006 Rules, the appellant could have been appointed only by the Panchayat Samiti on the post of Prakhand Teacher. Therefore, the Division Bench of the High Court was not at all justified in recording a finding that the appellant could have been appointed only as a Prakhand Teacher by the Panchayat Samiti on fixed pay. Unfortunately, the Division Bench overlooked the fact that the appellant had been appointed as per the policy of compassionate appointment framed by the State Government and that policy does not envisage the appointment of the dependant of a deceased employee on fixed pay.” 22. The conclusion reached by the Supreme Court in the aforesaid decision is to the effect that the employee who was recommended for appointment prior to change of policy but appointed later on cannot be made to suffer and cannot be asked to serve on a fixed salary pursuant to a change of policy. There also, the recommendation for the purpose of appointment on compassionate ground was prior to any change of policy compelling the employee to work on a fixed salary. 23. There also, the recommendation for the purpose of appointment on compassionate ground was prior to any change of policy compelling the employee to work on a fixed salary. 23. The date on which i.e. 26.2.2004, the petitioner was recommended for the purpose of appointment even as per existing policy for appointment on compassionate ground did not envisage fixed salary for 5 years and therefore, when recommendation was made for the purpose of appointment and respondents failed to appoint the petitioner, she cannot be asked to serve on a fixed salary for 5 years when appointment was offered to her with the change of policy. Things would have been different if despite the recommendation and appointment order is issued, petitioner had not reported for the duty and when she reported for duty, there is a change of policy of the State Government offering fixed pay for a particular period, possibly, she could not have complained about it. Lethargy to consider the application for appointment on compassionate ground, tossing aspirants who are otherwise found to be suitable for the purpose of appointments, from one department to other department for the purpose of appointment by the respondents cannot be asked to suffer for inaction and non coordination between the departments to the serious financial and other disadvantage to the petitioner. 24. Ms.Megha Chitaliya, learned Assistant Government Pleader submitted that the petition suffers from delay and latches. To make good her submission, it is submitted that despite she joined service on a fixed pay for a period of 5 years on 12.8.2004, she has not complained for the same and she has filed petition only on 26th April, 2007 and therefore, this petition may not be entertained. 25. Normally, petitions asking for retirement benefits, benefit relating to service should not be thrown away on the ground of delay and latches, that too, after petitions are admitted and taken up for final hearing years thereof. At the same time, it appears that petitioner was agitating issue with the highest authority of the State which is evident from Annexure-C, page No.9 dated 30.6.2005. It is a communication addressed to the then Chief Minister of Gujarat State to redress her grievance about such injustice caused to her because of lethargy and non coordination between the departments of the State Government. It is a communication addressed to the then Chief Minister of Gujarat State to redress her grievance about such injustice caused to her because of lethargy and non coordination between the departments of the State Government. In absence of any explanation thereof by the respondents, it is clear that there is no reply to the said communication which was sent through RPAD, not disputed by the State having been received, petition filed, that too, in the year 2007 cannot be said to be barred by delay and latches and that too, at the final hearing stage after about 13 years of its filing. I am conscious of the fact that appointment on compassionate ground is not the regular source of recruitment, however, when the petitioner is found to be qualified and suitable for the purpose of appointment, on compassionate ground fulfilling all the requirements of scheme promulgated by the State, she was recommended for the purpose of appointment. Despite the recommendation by the recommending authority under the scheme if she was not offered appointment at least within a reasonable time later on she cannot be told to serve on a fixed salary because she was appointed subsequent to the change of policy. It is not the case of the respondents that despite the recommendation made to Commissioner, Gujarat Vigilance Commission, she did not report for duty. Therefore, she cannot be deprived of her legitimate right to have, according to even policy framed by the State Government, pay scale and pay and other terms and conditions of service before change of it with effect from 15.6.2004. The decision in the case of Mukesh and Another (Supra) relied on by the learned advocate for the petitioner is the direct answer to the issue raised in this petition. Therefore, there is no option but to allow this petition. 26. Hence, this petition is allowed. Respondents are directed to pay her wages calculated on the basis of payscale available to her to the regularly appointed employee as on that date instead of the fixed salary at Rs.1500/- which is offered to the petitioner from 12.8.2004. The difference of the amount be calculated and paid to the petitioner within three months of the receipt of copy of this judgment. The petitioner has claimed arrears with 12% interest in this petition. The difference of the amount be calculated and paid to the petitioner within three months of the receipt of copy of this judgment. The petitioner has claimed arrears with 12% interest in this petition. However, I deem it fit to grant interest from the date of filing of the petition till its realization @ 6% per annum on it. Rule made absolute to the aforesaid extent. 27. On conclusion of this judgment, Mr.Anand Sharma, learned advocate for the petitioner submitted that during the pendency of this petition, the petitioner has already retired on reaching the age of superannuation on 30.6.2019. With a view to avoid multiplicity of proceedings at her behest, State may be directed to provide her all consequential benefits arising there from. 28. I hope and trust that the respondents would decide in its true earnest such representation being made by the petitioner so as to avoid possible filing of multiple proceedings.