IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL NO. 1515 of 2012 In SPECIAL CIVIL APPLICATION NO. 14960 of 2010 With CIVIL APPLICATION NO. 12944 of 2012 In LETTERS PATENT APPEAL NO. 1515 of 2012 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE VIJAY MANOHAR SAHAI and HONOURABLE MR.JUSTICE S.G.SHAH ================================================================
1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
================================================================ STATE OF GUJARAT & 1 Appellant(s) Versus NIRUPABEN PIYUSHBHAI SACHANIYA Respondent(s) ================================================================ Appearance:
MR RAKESH R PATEL, A.G.P. for the Appellants No. 1 - 2 MR YATIN SONI, ADVOCATE for the Respondent(s) No. 1 ================================================================ CORAM: HONOURABLE MR.JUSTICE VIJAY MANOHAR SAHAI and
HONOURABLE MR.JUSTICE S.G.SHAH
Date : 20/12/2012 ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE S.G.SHAH)
1. The appellant – State has filed this appeal against the judgment and order dated 22.12.2010 in Special Civil Application No.1 4960 of 2012 whereby the learned single Judge has directed the appellant herein to reconsider the case of the respondent in it right perspective keeping in view the observations made in order dated 15.10.2010 passed in Special Civil Application No.8553 of 2010.
2. The factual details are such that the husband of the original petitioner - respondent herein was serving as unarmed Police Constable and met with a fatal accident while riding motorcycle on 20.12.2006. The petitioner made an application on 8.1.2007 for compassionate appointment. After scrutiny of the application and documents supplied by the original petitioner, the appellant No.2 herein being District Superintendent of Police, Junagadh had rejected the application on 30.8.2010. Such order was challenged by the original petitioner in the above-referred Special Civil Application, judgment of which is under challenge before us.
3. If we peruse the communication dated 30.8.2010, it transpires that the appellants herein has rejected the application for compassionate appointment of the original petitioner on two simple counts.
(1) Original petitioner has not given declaration that she has remarried;
(2) She does not possess educational qualification since she has not cleared the S.S.C. Examination.
Such decision was taken by the D.S.P., Junagadh in pursuance of directions issued by him vide letter dated 20.2.2010.
4. The fact remains that on the date of application, the original petitioner does not have the requisite educational qualification. However, she got cleared the examination and, therefore, relying upon the previous decision in Special Civil Application No.8553 of 2010 dated 15.10.2010, the original petitioner has claimed for compassionate appointment. The learned Single Judge has considered that the case of the original petitioner requires reconsideration at the hands of the appellant since it squarely falls within the ambit of such judgment dated 15.10.2010.
5. Heard learned A.G.P. Mr.Rakesh R.Patel for the appellants and learned advocate Mr.Yatin Soni for the respondent.
6. Learned advocate Mr.Yatin Soni has submitted that the order of the Single Judge is proper and correct inasmuch it does not direct the respondents to confirm compassionate appointment to the petitioner, but to re-consider the case of the petitioner, since there is an error in considering the factual details of the petitioner and, therefore, there is no illegality and irregularity and, hence, such order cannot be disturbed and thereby Appeal deserves to be dismissed.
7. Learned A.G.P. Mr.Patel has relied upon the several decisions of the Hon’ble Apex Court, which confirms that compassionate appointment is not a right of the successor of a deceased employee and, therefore, it cannot be awarded, as claimed for, more particularly, now when there is no such scheme in existence.
8. Learned A.G.P. Mr.Patel has relied upon following decisions;
(1) 2012(5) SCALE 740 : (AIR 2012 SC 2294) -
Union of India v. Shashank Goswami;
(2) (2012)7 SCC 248 – Shreejit L. Vs.Deputy Director (Education), Kerala and
(3) (2007)9 SCC 571 – State Bank of India & Ors. Vs.Jaspal Kaur.
We do not propose to burden this judgment with reference to a long line of decisions of this Court on the point. However, in order to recapitulate the factors to be taken into consideration while examining the claim for appointment on compassionate ground, we may refer to a few decisions touching the point.
9. If we peruse the case of Shashank Goswami (supra), though the head-note and outcome suggest that they cannot be given appointment on compassionate basis when retiral/terminal benefits have been received by the family of the deceased employee, the fact remains that even in latest judgments, the Apex Court has relied upon, its several previous decisions including decision in Punjab National Bank and Ors. v. Ashwini Kumar Taneja, (2004) 7 SCC 265 : (AIR 2004 SC 4155) wherein also the reliance was placed on an earlier judgment in General Manager (D and PB) and Ors. v. Kunti Tiwari and Anr., (2004) 7 SCC 271, and held that compassionate appointment has to be made in accordance with the Rules, Regulations or administrative instructions taking into consideration the financial condition of the family of the deceased.
10. In an appropriate case, all such judgments may be scrutinized. Court has to take decision regarding entitlement of the employee for compassionate appointment because some of the judgments of the Supreme Court were either distinguished or overruled in some other judgments and, therefore, relying upon one or two particular judgments, fresh decision regarding entitlement of benefit of compassionate appointment cannot be taken, more particularly, in an appellate jurisdiction, for example judgment in case of Govind Prakash Verma v. Life Insurance Corporation of India and Ors. reported in (2005) 10 SCC 289 had been decided without considering earlier judgment, as observed by the Apex Court in Mumtaz Yunus Mulani (Smt.) v. State of Maharashtra and Ors., (2008) 11 SCC 384 : (AIR 2008 SC (Supp) 305). It is observed in Steel Authority of India Limited v. Madhusudan Das and Ors. in the case (2008) 15 SCC 560 (AIR 2009 SC
1153) that the Apex Court has in large number of
decisions held that the appellant on compassionate ground cannot claimed as a matter of right, but it must provided for in the rules and, therefore, it would be appropriate to examine the rules pertaining to particular appointment in a given department.
11. Therefore, it would be appropriate to follow the factors to be borne in mind while considering claim for employment on compassionate ground as laid down in the case of V.Sivamurthy v. State of Andhra Pradesh and Ors. reported in (2008)8 SCC 475 (2008 AIR SCW 5833), which are as under:
(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 the sudden crisis occurring in the family on account of the death or medical invalidation of the bread winner 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.
11. In view of above discussions, when the learned single Judge has directed the department to consider the application for compassionate appointment afresh, we do not find any irregularity in the impugned judgment. It is certain that the learned single Judge has directed the present appellant to decide the representation of the respondent i.e. present respondent for compassionate appointment without entering into merits of the case. This is an innocuous order and we are not inclined to interfere with the same in this appeal.
12. This Letters Patent Appeal, therefore, fails and is accordingly dismissed.
13. Accordingly, the Civil Application also stands disposed of.
(V.M.SAHAI, J.) (S.G.SHAH, J.) (binoy)