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2024 DIGILAW 1177 (GUJ)

Hiral Janakrav Vyas v. State Of Gujarat

2024-05-09

PRANAV TRIVEDI

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JUDGMENT : 1. Heard Ms. Prachi Upadhyay, learned advocate for Mr. Vaibhav A. Vyas, learned advocate appearing for the petitioner and Mr. Sanjay Udhwani, learned Assistant Government Pleader appearing for the respondent – State. 2. The petition is preferred by praying the following reliefs: “7(A) Direct the respondent authorities to appoint the petitioner on compassionate ground as per her ettitlement, or in the alternative, (B) Direct the respondent authorities to make payment of lump-sum compensation to the petitioner in lieu of compassionate appointment, as per the policy and entitlement of the petitioner, and (C) Pending admission and final disposal of this petition, the Honourable Court may be pleased to direct the respondent authorities to consider the case of the petitioner for appointment on compassionate ground, and/ or (D) Pending admission and final disposal of this petition, the Hounourable Court may be pleased to direct the respondent authorities to decide the representation of the petitioner dated 05.01.2015 for appointment of the petitioner on compassionate ground, and (E) Pending admission and final disposal of this petition, the Honourable Court may be pleased to direct the respondent authorities to make payment of lump-sum compensation to the petitioner in lieu of compassionate ground, and” 3. The brief facts are as follows: 3.1 The father of the petitioner had joined the service of the respondent authorities as a Junior Clerk in the year, 1976, under the administrative control of the Director of NCC, Gujarat State, Ahmedabad. As per the terms of appointment, an employee was required to pass pre-service training examination and in the event of failure of pre-service training examination, the service of the employee was liable to be terminated. An employee is eligible to appear in pre-service training examination on conclusion of pre-service training course, which is conducted by the Institution of the Government of Gujarat called the Sardar Patel Institute of Public Administration (SPIPA), Ahmedabad, where the candidates are sent for training course by their respective departmental authority. For administrative reasons, the father of the petitioner could not be sent for pre-service training examination for a long time and therefore he continued to work on the post without attaining pre-service training for a period of more than two decades. 3.2 It is the case of the petitioner that the father of petitioner and other similarly situated employees came to be terminated simpliciter vide order dated 30.12.2003 for not completing pre-service training examination. 3.2 It is the case of the petitioner that the father of petitioner and other similarly situated employees came to be terminated simpliciter vide order dated 30.12.2003 for not completing pre-service training examination. Against such termination, all the employees preferred writ petition before this Court. Writ petition preferred by father of the petitioner came to be numbered as Special Civil Application No.371 of 2004. In the writ petition, this Court by way of an interim protection directed the father of the petitioner to continue in service. On 01.12.2009, due to ailment of blood cancer, father of the petitioner had passed away while in service. After the death of father of the petitioner, family pension came to be granted to mother of the petitioner. 3.3 It is the case of the petitioner that after the death of her father, he had left behind his widow (that is mother of the petitioner) and two unmarried daughters, including the present petitioner. Therefore, it was the case of the petitioner that she was entitled for appointment on compassionate ground as per the policy of the Government. An application for appointment on compassionate ground in the prescribed form along with necessary documents was made by the petitioner. Petitioner was having an educational qualification of Master’s Degree in Arts and therefore, was entitled for Class-III post. On 19.01.2010, application of the petitioner for appointment on compassionate ground, came to be returned back as “unsanctioned” as the case regarding regularization of service of father of the petitioner was pending before this Court. Therefore, appointment of petitioner on compassionate ground remained pending on account of pendency of the petition preferred by father of the petitioner before this Court. 3.4 In the meantime, writ petition preferred by father of the petitioner being Special Civil Application No.371 of 2004 came to be allowed by this Court vide judgment and order dated 05.11.2015, whereby the order of termination of service of the father of the petitioner was quashed and set aside. The State authorities preferred Letters Patent Appeal (Stamp Number) No.291 of 2016 against the order passed in the writ petition. However, such Letters Patent Appeal also came to be dismissed as having become infructuous. The State authorities preferred Letters Patent Appeal (Stamp Number) No.291 of 2016 against the order passed in the writ petition. However, such Letters Patent Appeal also came to be dismissed as having become infructuous. Pursuant to the petition of father of the petitioner, which came to be allowed by this Court, petitioner preferred another application for appointment on compassionate ground on 07.12.2015 and subsequently, a reminder was also sent in May, 2017. There was no decision by the concerned authority on the applications which led to culmination of filing of present writ petition before this Court. 4. Ms. Prachi Upadhyay, learned advocate for Mr. Vaibhav A. Vyas, learned advocate appearing for the petitioner has submitted that petitioner was eligible and entitled for appointment on compassionate ground as per the relevant policy in the year 2010 itself. However, her application was not considered pursuant to pendency of the writ petition before this Court. However, once again after the writ petition was allowed, another application was also preferred by the petitioner immediately. Therefore, the petitioner was entitled for compassionate appointment. 4.1 It was further submitted that father of the petitioner had rendered sincere, honest and dedicated services for a period of more than 33 years, till he passed away. Her father being a Class-III employee, had left behind him his widow and two unmarried daughters, who did not have any source of income. In such situation, the petitioner was entitled to compassionate appointment and even if the compassionate appointment is not to be in present situation, then the family of deceased employee was at least entitled for lump-sum compensation in view of the pendency of the writ petition before this Court as well as pendency of application made by the petitioner since 2010. Ms. Upadhyay, learned advocate has therefore, urged to allow the writ petition and grant the prayers as prayed in the writ petition. 5. Per contra, Mr. Sanjay Udhwani, learned Assistant Government Pleader for the respondents has vehemently argued that petition suffers from delay and latches. It was submitted that the application in the year 2010 was rejected by NCC Directorate, Gujarat on 19.01.2010. Further even after the writ petition being allowed, pensionary benefits to the family of the deceased employee as per Gujarat Civil Services (General Conditions Of Services) Rules, 2002 have been paid. It was submitted that the application in the year 2010 was rejected by NCC Directorate, Gujarat on 19.01.2010. Further even after the writ petition being allowed, pensionary benefits to the family of the deceased employee as per Gujarat Civil Services (General Conditions Of Services) Rules, 2002 have been paid. Therefore, the family having survived for more than 14 years, the appointment of the petitioner would frustrate the very base of appointment on compassionate ground. Mr. Udhwani, learned Assistant Government Pleader placed reliance on decision of the Hon’ble Apex Court in the case of State of West Bangal versus Debabrata Tiwari reported in AIR 2023 SC 1467 . Placing reliance on paragraph 7.5 of the said decision, it was urged that the application for compassionate appointment should not be considered after delay of several years. Due to prolonged delay, either on the part of the applicant in claiming compassionate appointment or the authorities in deciding such claim, the sense of immediacy is diluted and lost. Therefore, it was urged by Mr. Sanjay Udhwani, learned Assistant Government Pleader to dismiss the present petition. 6. After hearing both the learned advocates appearing for the respective parties and perusing the material on record, it is true that the application of the petitioner was not considered in the year 2010 and returned as unactioned due to pendency of a case before this Court. It is also true that again on 21.05.2010, the mother of the petitioner was communicated that the application of the petitioner was returned as unactioned due to pendency of the court case in this Court. Additionally, it is also true that application of the petitioner was not technically rejected but was returned as unactioned due to pendency of the case. However, even after the application being unactioned, there has to be a compelling need to act with sense of immediacy. In the matter concerning compassionate appointment, the family of a deceased employee would be in complete financial disarray and would be in such situation where they would be unable to make two ends meet. 7. Compassionate appointment should be provided immediately to redeem the family in distress. It is improper to keep such cases pending for years. In the present case, the application was returned as “unsanctioned” due to pending litigation. 7. Compassionate appointment should be provided immediately to redeem the family in distress. It is improper to keep such cases pending for years. In the present case, the application was returned as “unsanctioned” due to pending litigation. It was the argument of learned Assistant Government Pleader that once the application was unsanctioned, the petitioner had shown laxity in taking further the cause for compassionate appointment. This Court does not agree with such contention. However, it is a fact that the application for compassionate appointment has remained pending for almost 14 years now. The object underlying the provision for grant of compassionate employment is to enable the family of a deceased employee to tide over the sudden crisis due to the death of the bread-earner which has left the family in penury. Therefore, on pure humanitarian consideration, a provision is made for giving gainful employment to one of the dependents of the deceased who may be eligible for such appointment. It is not the object of compassionate appointment to grant such appointment to the dependent of the deceased employee, after the crisis which arose on account of death of breadwinner, has been overcome. In the instant case, even assuming that the application was unsanctioned only on the ground of pending litigation, then also almost 14 years have been passed by, even though such period cannot be attributed to the petitioner. However, it would be against the object of compassionate appointment to grant the petitioner the appointment almost after a period of one and half decades. Therefore, the prayer of granting of compassionate appointment cannot be considered at this stage. 8. Another aspect as prayed by the petitioner is lump-sum compensation. If the policy of lump-sum compensation as on 05.07.2011 is to be perused, the main object was to give lump- sum compensation to the dependents of the deceased employee in lieu of compassionate appointment, particularly when there is a difficulty being experienced by implementing the provisions in wake of court cases filed for compassionate appointment. In the present case, it is evident that the issue of termination of father of the petitioner was pending for adjudication. The petitioner was diligently at every stage praying for compassionate appointment that is made in years 2009 – 2010 or 2015 -2016. In the present case, it is evident that the issue of termination of father of the petitioner was pending for adjudication. The petitioner was diligently at every stage praying for compassionate appointment that is made in years 2009 – 2010 or 2015 -2016. Once the application was unsanctioned due to pendency of a case and thereafter from the year 2015 – 2016 onwards, the petitioner’s application was not considered at all and now it has been urged that since almost one and half decades have passed, the appointment should not be given, in the opinion of this Court, there was no fault of the petitioner in non decision of her application. There is no laxity on the part of the petitioner at any point of time to assert her rights. Now, her application faces a challenge due to efflux of time. Further, this Court has held that the father of the petitioner was rightful in asking his rights and his termination was bad in law. Therefore, the efflux of time is the only criteria which has eventually taken the rightful aspect of prayer of the petitioner. Therefore, the family of the deceased employee i.e. the father of the petitioner would definitely deserve to be granted benefit of the scheme of lump- sum compensation, which came to be introduced on 05.07.2011. As the prayer for lump-sum compensation is made from 2015-2016, the compensation should be computed as per the scheme of Government Resolution dated 05.07.2011 and be granted to the petitioner or the family members of the deceased i.e. the mother of the petitioner which may be applicable as per the Government Resolution dated 05.07.2011. 9. In view of above observations, the petition is partly allowed. The benefit of lump-sum compensation, as per the Government Resolution dated 05.07.2011, shall be calculated and disbursed to the petitioner within a period of three months from the date of passing of this order. Rule is made absolute accordingly. No order as to costs.