1. This appeal under Section 100 of the Code of Civil Procedure is filed by the original plaintiff who filed Regular Civil Suit No. 223/2003 seeking direction against the respondents to give compassionate appointment to her with all consequential benefits.
1.1 The case of the plaintiff in the suit is that her husband Nanjibhai Mangabhai was appointed as daily wager since 1988 with the respondent No.1 University. He expired on 4th October 2000. It is further averred in the plaint that her husband put in more than 10 years of service and was entitled to the benefits as permanent employee. The plaintiff made an application dated 23rd October 2000 to give her compassionate appointment as sweeper but no decision was taken on her application and therefore as per the Government Resolution/circulars dated 26th February 1997, 10th March 2000 and 17th December 2003, a request was made to consider the case of the plaintiff for giving appointment on compassionate ground. It is also the case of the plaintiff that the request of the plaintiff was turned down by respondent No. 2 on the ground that circular for giving compassionate appointment was not applicable to the case of the plaintiff. The suit of the plaintiff was resisted by the defendants by filing a written statement at Exh. 9 stating therein that the plaintiff was employed as Rojamdar (daily wager) and he was not conferred benefit of permanent employee and when he died he was just a daily wager. The dependent of the daily wager was not entitled to compassionate appointment, and therefore, the application of the plaintiff was rejected. The plaintiff is therefore, not entitled to any relief in the suit.
1.2 Learned Trial judge found that as per the resolution dated 10th March 2000, persons working on daily wages, Casual workers, Apprentice and as adhoc contract are not entitled to the benefit of compassionate appointment. Learned trial judge also considered the scheme introduced by the respondents dated 2nd March 2001 which was framed after the order passed by Hon’ble Supreme Court and found that the said scheme was for the purpose of giving permanent benefits to daily wagers who have completed 10 years or more of continous service with a minimum of 240 days when the vacancies or posts in permanent set up are available and such benefits shall be given in a phase manner. From the said scheme the trial judge found that the scheme was only for the purpose of giving benefit as regular employee to the daily wagers and would never come to the help of the plaintiff. The learned judge also recorded that before the said scheme came into operation the husband of the plaintiff had already passed away and hence, there is no question of conferring any benefit of regular service to the husband of the plaintiff. On such conclusion the trial judge dismissed the suit by judgment and decree dated 4th March 2010.
2. The appellant carried the matter before the First Appellate Court by filing Regular Civil Appeal No. 19 of 2010. Learned Appellate Judge also found that the notification of Government of Gujarat dated 10th March 2000 for the purpose of giving compassionate appointment was not applicable to the dependent of the daily wager and the scheme framed dated 2nd March 2001 by the respondents was for the purpose of conferring permanent benefit to the Rojamdar and the same would not be applicable for the purpose of giving compassionate appointment. Learned Appellate Judge also observed that the said scheme came into force after the husband of the plaintiff had already passed away and on the relevant date as per the resolution of the Government of Gujarat dated 10th March 2000 the plaintiff was not entitled to compassionate appointment. Learned Appellate Judge thus concurred with the finding and conclusion recorded by the learned trial judge, and dismissed the appeal by judgment and decree dated 8th January 2011. It is this judgment and decree passed by the Learned Appellate Judge which is under challenge before this Court.
3. I have heard learned advocates for the parties.
4. Learned advocate Mr. Hardik Shah for the appellant submitted that though the husband of the plaintiff was a daily rated sweeper but by virtue of order passed by this Court in Special Civil Application No. 727/1997, the husband of the plaintiff was getting minimum time scale and because of such minimum time scale the husband of the plaintiff had already acquired status as permanent employee. Mr Shah learned advocate further pointed out that the husband of the plaintiff already completed 10 years of service as daily wager and as per the direction issued by the Supreme Court in Civil Appeal No. 691/2001 to 693/2001, when the respondents have already framed scheme and as per the scheme the husband of the plaintiff was entitled to be absorbed as regular employee but unfortunately before the scheme could be introduced, he expired in the year 2000. If the husband of the plaintiff was otherwise entitled to the benefit of the direction given by Hon’ble Supreme Court, and consequently as per the scheme framed by the respondent, simply because the scheme came to be framed after the death of the husband, would not be a ground to deny the benefits of regular employment to the husband of the plaintiff as he had worked with the respondents like regular employee for all purposes and the husband having worked with the respondent for long period of time, the plaintiff could not be denied the benefit of compassionate appointment. He therefore submitted that the judgment and decree passed by the both the Courts below are wrong construction of Government Resolution dated 10th March 2000 and on wrong interpretation of the direction issued by the Hon’ble Supreme Court as also of the scheme framed after the Hon’ble Supreme Court’s order.
4.1 As against the above arguments, learned advocate Mr. Chauhan appearing for the respondents submitted that till the husband of the plaintiff died he was a daily wager. The compassionate appointment is given to the dependent on the basis of prevailing scheme. The scheme prevailing at the relevant time was not to give compassionate appointment to daily wager , casual workers, apprentice and adhoc contract. Mr Chauhan learned advocate further submitted that the government scheme for compassionate appointment is not applicable to the dependent of a daily wager. The plaintiff as a matter of right cannot claim such compassionate appointment. Mr. Chauhan pointed out that the direction issued by the Hon’ble Supreme Court and the scheme framed by the respondent was purely for the purpose of conferring the benefit of regular employee to the daily wager in a phased manner on the availability of sanctioned vacant post. He submitted that even under the said scheme there was no absolute right of any daily wager to get benefit of regular employee. He submitted that the scheme was to be implemented as per the various provisions provided under the scheme and at the best the husband of the plaintiff would have been conferred benefit of regular employee had he been alive but the fact remains that before the scheme came to be introduced, the husband of the plaintiff had already passed away and therefore the plaintiff can be said to be dependent of daily wager and not of regular employee. He thus submitted that both the Courts below have correctly construed the resolution of the Government dated 10th March 2000 for the purpose of compassionate appointment as also the direction issued by the Hon’ble Supreme Court and the scheme introduced by the respondent. The Courts below have not committed any error in construction of the above said documents and since, the courts below have recorded the finding of fact to the effect that the husband of the plaintiff was a daily wager, the plaintiff was not entitled to compassionate appointment.
6. Having heard learned advocate for the parties and having perused the judgment of the Courts below and having also perused the direction issued by the Hon’ble Supreme Court in the above recorded appeals with the notification of the scheme dated 2nd March 2001, it appears that the husband of the plaintiff was appointed as daily wager and worked as a sweeper from the year 1988 to 4th October 2000. Unfortunately he died on 4th October 2000 and when he died he was a daily wager serving with the respondent and the scheme for conferring benefit as regular employee was not introduced. It is required to be noted that as per the Government resolution dated 10th March 2000 the dependents of the daily wager are not entitled to compassionate appointment. On the day, the husband of the plaintiff died, the said resolution of the Government was in force and therefore to decide the right of the plaintiff to get compassionate appointment only said resolution was required to be considered. As per the said resolution the plaintiff was not entitled to compassionate appointment as she was dependent of the daily wager. I have gone through the direction of the Hon’ble Supreme Court especially the last two paragraphs of the direction issued in the above said appeals filed before Hon’ble Supreme Court. The issue was about conferment of benefit of regular service to the daily wagers. It appears that the scheme for the purpose of conferring benefit as regular employee was placed before Hon’ble Supreme Court and Hon’ble Supreme Court with some modification had approved the said scheme and directed that the judgment of the High Court shall stand modified in terms of the modified scheme. However, the fact remains that the scheme was for the conferment of the permanent benefits to the daily wager. The permanent benefits is to be conferred as per the scheme on fulfillment of requirements by the daily wager provided in the scheme. One of the conditions of the scheme is that the daily wager shall be regularised in a phased manner to the extent of available regular sanctioned posts/vacancies on the date of regularisation and on the basis of seniority cum suitability including physical fitness. Therefore it is not certain whether the husband of the plaintiff in all circumstances would have been entitled to get benefit of the said scheme had he been alive. Apart from this, the scheme was purely for the purpose of conferment of benefit of regular employee. When the husband of the plaintiff had passed away before the introduction of such scheme, the plaintiff cannot claim that her husband has served as regular employee. As stated above, unless the daily wager was conferred benefit of regular employee as per the scheme such daily wager would continue to be daily wager and the entitlement of the compassionate appointment to the dependent of the daily wager is to be worked out on the basis of the status on the date of death of such person. There is no dispute that when the husband of the plaintiff died he was a daily wager and he was yet to be conferred the benefit of the scheme. In view of the above facts and circumstances especially when both the courts below have on proved facts found that the plaintiff was not entitled to benefit of compassionate appointment on the basis of the Government resolution dated 10th March 2000, I am of the view that courts below have not committed any error in holding that the plaintiff was not entitled to compassionate appointment. In my view no substantial question of law has arisen for consideration of this Court and therefore this appeal is required to be dismissed and accordingly the same is dismissed.
7. As Second Appeal stands dismissed no order is required to be passed in Civil Application. Civil Application stands disposed of accordingly.
(C.L.SONI, J.) mary