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2022 DIGILAW 1596 (GUJ)

HARSH KAUSHIKKUMAR BAROT v. STATE OF GUJARAT

2022-11-16

A.S.SUPEHIA

body2022
ORDER : 1. The present petition has been filed for the following prayers: “(B) To issue a writ of mandamus or any other appropriate writ, direction or order in the nature of writ, directing the respondent no. 2 to issue necessary order giving the present petitioner compassionate service in lieu of his father in the Police Department. (C) To issue a writ of mandamus or any other appropriate writ, o direction or order in the nature of writ, directing the respondent no. 2 to pay monetary benefits to the dependents of the deceased as per the Government Resolution dated 05.07.2011.” 2. The first prayer would indicate that the petitioner is seeking a direction for compassionate appointment, whereas the another prayer pertains to grant of monetary benefits, as per the Government Resolution dated 05.07.2011. 3. The father of the petitioner-Kaushikkumar Dasrathbhai Barot was working as a Police Constable in the Home Department of the Government of Gujarat. He died on 16.11.2004 due to heart-attack. Accordingly, the mother of the present petitioner-Jignaben, since she was not 10th Standard passed, which is minimum requirement as per the Government Resolution for qualifying for compassionate appointment, was denied appointment on the compassionate ground by the respondent vide communication dated 24.01.2006. Thereafter, she again applied for compassionate appointment on 12.06.2006, which was also denied by the communication dated 08.01.2008 by the respondent No. 2. Thereafter, on introduction of the lump sum monetary assistance scheme vide Government Resolution dated 05.07.2011, the mother of the petitioner again applied for the same. The same was refused by the communication dated 13.12.2011 by assigning the reason that since she is not qualified for compassionate appointment, no monetary assistance can be given as per the Government Resolution dated 05.07.2011. It is the case of the petitioner that he was only 4 years of age, when his father passed away. Now since he has matured and passed higher secondary examination in the year 2017, he would be entitled for compassionate appointment. 4. Learned advocate Mr. Bhrahmbhatt, appearing for the petitioner has submitted that the petitioner is also entitled for both compassionate appointment as well as monetary benefits and the State may be directed to either grant compassionate appointment and if the same is denied, the petitioner may be granted the monetary benefits in view of the Government Resolution dated 05.07.2011. 4. Learned advocate Mr. Bhrahmbhatt, appearing for the petitioner has submitted that the petitioner is also entitled for both compassionate appointment as well as monetary benefits and the State may be directed to either grant compassionate appointment and if the same is denied, the petitioner may be granted the monetary benefits in view of the Government Resolution dated 05.07.2011. In support of his submissions, he has placed reliance on the judgment of the Division Bench of this Court in the case of Sureshbhai Sumabhai Nayani vs. State of Gujarat, 2022 (1) GLR 84 . 4.1 Per contra, learned Assistant Government Pleader has submitted that the compassionate appointment cannot be granted after a period of so many years and once the compassionate appointment has been refused to the mother of the petitioner, the petitioner is neither entitled to compassionate appointment nor the monetary assistance in view of the policy dated 05.07.2011. She has further submitted that even the petitioner has applied in the year 2017 and there has been delay of 13 years, hence, neither the compassionate appointment nor the financial assistance can be granted to the petitioner. 5. I have heard the learned advocates for the respective parties. I have also perused the relevant documents. 6. The facts, narrated hereinabove, would suggest that the father of the petitioner passed away on 16.11.2004. The mother of the petitioner applied for compassionate appointment on 30.11.2004, which was rejected on 24.01.2006. The said rejection has become final, which was not challenged before any legal forum. Again the mother of the petitioner requested, which was also denied in the year 2008. After the State Government rescinded the Scheme of compassionate appointment, vide Resolution dated 05.07.2011 by which, the scheme of grant of lump sum compensation was introduced, the mother of the petitioner applied for such monetary assistance, which was also refused by the communication dated 13.12.2011. The same was also not challenged before any legal forum. 7. The petitioner was 4 years of age, when his father passed away and it appears that after becoming major, he is seeking the compassionate appointment. Thus, from the death of his father in the year 2004, the present writ petition is filed in the year 2019, claiming compassionate appointment as well as the financial assistance. 7. The petitioner was 4 years of age, when his father passed away and it appears that after becoming major, he is seeking the compassionate appointment. Thus, from the death of his father in the year 2004, the present writ petition is filed in the year 2019, claiming compassionate appointment as well as the financial assistance. No provisions of law, in form of any resolution or scheme, is produced on record, which would entitle the petitioner for compassionate appointment after so many years. The fact remains that the rejection of the application filed by the mother of the petitioner in the year 2006, has remained unchallenged and has become final, hence, the petitioner would not be entitled for compassionate appointment after so many years, in wake of the fact that the order / communication dated 24.01.2006 has become final and has remained unchallenged. 8. Similarly, the case of the financial assistance was rejected by the State Government by the communication dated 13.12.2011, which was also not challenged. The petitioner for the first time, after a period of 13 years, has filed this writ petition claiming both. No provisions from the Scheme dated 05.07.2011 is pointed out before this Court, which enables the heirs or family members of the deceased employee to claim the lump sum compensation, in view of the Scheme dated 05.07.2011, after the case of the compassionate appointment is rejected. The Scheme nowhere provides that even after the case for compassionate appointment is rejected, the family members of such employees would be entitled to the lump sum compensation. 9. At this stage, it would apposite to refer to the observations made by the Supreme Court in the case of State of Maharashtra vs. Madhuri Maruti Vodhate, 2022 SCC Online SC 1327, in which, the Supreme Court has held thus: “5. While considering the issue involved in the present appeal, the law laid down by this Court on compassionate ground on the death of the deceased employee are required to be referred to and considered. In the recent decision, this Court in the case of Director of Treasuries in Karnataka vs. V. Somyashree, 2021 SCC Online SC 704, had occasion to consider the principle governing the grant of appointment on compassionate ground. In the recent decision, this Court in the case of Director of Treasuries in Karnataka vs. V. Somyashree, 2021 SCC Online SC 704, had occasion to consider the principle governing the grant of appointment on compassionate ground. After referring to the decision of this Court in N.C. Santhosh vs. State of Karnataka, (2020) 7 SCC 617 , this Court has summarised the principle governing the grant of appointment on compassionate ground as under: (i) that the compassionate appointment is an exception to the general rule. (ii) that no aspirant has a right to compassionate appointment. (iii) the appointment to any public post in the service of the State has to be made on the basis of the principle in accordance with Articles 14 and 16 of the Constitution of India. (iv) appointment on compassionate ground can be made only on fulfilling the norms laid down by the State’s policy and/or satisfaction of the eligibility criteria as per the policy. (v) the norms prevailing on the date of the consideration of the application should be the basis for consideration of claim for compassionate appointment. 6. As per the law laid down by this Court in catena of decisions on the appointment on compassionate ground, for all the government vacancies equal opportunity should be provided to all aspirants as mandated under Articles 14 and 16 of the Constitution. However, appointment on compassionate ground offered to a dependent of a deceased employee is an exception to the said norms. The compassionate ground is a concession and not a right. 6.1 In the case of State of Himachal Pradesh and Another vs. Shashi Kumar, (2019) 3 SCC 653 , this Court had an occasion to consider the object and purpose of appointment on compassionate ground and considered the decision of this Court in the case of Govind Prakash Verma vs. LIC, (2005) 10 SCC 289 , in Paras 21 and 26, it is observed and held as under: “21. The decision in Govind Prakash Verma vs. LIC, (2005) 10 SCC 289 , has been considered subsequently in several decisions. But, before we advert to those decisions, it is necessary to note that the nature of compassionate appointment had been considered by this Court in Umesh Kumar Nagpal vs. State of Haryana, (1994) 4 SCC 138 . The decision in Govind Prakash Verma vs. LIC, (2005) 10 SCC 289 , has been considered subsequently in several decisions. But, before we advert to those decisions, it is necessary to note that the nature of compassionate appointment had been considered by this Court in Umesh Kumar Nagpal vs. State of Haryana, (1994) 4 SCC 138 . The principles which have been laid down in Umesh Kumar Nagpal vs. State of Haryana, (1994) 4 SCC 138 , have been subsequently followed in a consistent line of precedents in this Court. These principles are encapsulated in the following extract: [Umesh Kumar Nagpal vs. State of Haryana, (1994) 4 SCC 138 , SCC pp. 139-140, Para 2] “2........As a rule, appointments in the public services should be made strictly on the basis of open invitation of applications and merit. No other mode of appointment nor any other consideration is permissible. Neither the Governments nor the public authorities are at liberty to follow any other procedure or relax the qualifications laid down by the rules for the post. However, to this general rule which is to be followed strictly in every case, there are some exceptions carved out in the interests of justice and to meet certain contingencies. One such exception is in favour of the dependants of an employee dying in harness and leaving his family in penury and without any means of livelihood. In such cases, out of pure humanitarian consideration taking into consideration the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made in the rules to provide gainful employment to one of the dependents of the deceased who may be eligible for such employment. 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 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 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.” 26. The judgment of a Bench of two Judges in Mumtaz Yunus Mulani vs. State of Maharashtra, (2008) 11 SCC 384 has adopted the principle that appointment on compassionate grounds is not a source of recruitment, but a means to enable the family of the deceased to get over a sudden financial crisis. The financial position of the family would need to be evaluated on the basis of the provisions contained in the scheme. The financial position of the family would need to be evaluated on the basis of the provisions contained in the scheme. The decision in Govind Prakash Verma vs. LIC, (2005) 10 SCC 289 : 2005 SCC (L&S) 590 has been duly considered, but the Court observed that it did not appear that the earlier binding precedents of this Court have been taken note of in that case.” 7. Thus, as per the law laid down by this Court in the aforesaid decisions, compassionate appointment is an exception to the general rule of appointment in the public services and is in favour of the dependents of a deceased dying in harness and leaving his family in penury and without any means of livelihood, and in such cases, out of pure humanitarian consideration taking into consideration the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made in the rules to provide gainful employment to one of the dependants of the deceased who may be eligible for such employment. 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 such family a post much less a post held by the deceased. 7.1 Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand, to appoint the respondent now on compassionate ground shall be contrary to the object and purpose of appointment on compassionate ground. The respondent cannot be said to be dependent on the deceased employee, i.e. her mother. Even otherwise, she shall not be entitled to appointment on compassionate ground after a number of years from the death of the deceased employee.” 10. The Supreme Court has held that the compassionate appointment cannot be granted after number of years from the death of the deceased employee and no aspirant has right to claim for compassionate appointment. It is further directed by the Apex Court that the appointment on compassionate ground can be made only on fulfilling the norms laid down by the State policy and on satisfaction of the eligibility criteria, as per the policy. 11. It is further directed by the Apex Court that the appointment on compassionate ground can be made only on fulfilling the norms laid down by the State policy and on satisfaction of the eligibility criteria, as per the policy. 11. In the present case, as noticed hereinabove, neither the mother of the petitioner nor the petitioner have challenged the rejection of the case of compassionate appointment or financial assistance within a reasonable time and hence, the writ petition claiming such benefits cannot be entertained after so many years. There is no provision in the policy dated 05.07.2011, which enables grant of financial assistance after rejection of aplcation made for compassionate appointment. 12. Reliance placed on the Division Bench in the case of Sureshbhai Somabhai Nayani (supra), will not rescue the present petitioner and will not apply to the facts of this case. Hence, the writ petition fails and the same is rejected summarily. Notice is discharged.