IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 12850 of 2000 For Approval and Signature:
HONOURABLE MR.JUSTICE N.V. ANJARIA =========================================================
========================================================= TANVIRALI MUSTAKALI SAIYED Versus GUJARAT STATE ELECTRICITY CORPORATION LTD. AND ANOTHER ========================================================= Appearance :
MR TR MISHRA for Petitioner(s) : 1, RULE SERVED for Respondent(s) : 1 - 2.
MS RV ACHARYA for Respondent(s) : 1 - 2. MR VT ACHARYA for Respondent(s) : 1 - 2.
========================================================= CORAM : HONOURABLE MR.JUSTICE N.V. ANJARIA Date :30/04/2012 CAV JUDGMENT
1. The present petition under Article 226 is directed against the order dated 17.12.1998 whereby the respondents cancelled the name of the petitioner from the list of dependent candidates considered for employment on compassionate basis under the scheme of respondent for such appointment.
2. Original respondent No.1 Gujarat Electricity Board and respondent No.2 Chief Engineer, Gujarat Electricity Board, Vanakbori Thermal Power Station came to be substituted by impleading Gujarat State Electricity Corporation Limited and Madhya Gujarat Vij Company Limited as respondent Nos.1 and 2 respectively as per order in Civil Application No.2429 of 2008, as the Gujarat Electricity Board came to be converted into different divisions and the petitioner fell under the Madhya Gujarat Vij Company Limited, being newly added respondent No.2.
3. The relevant facts briefly stated are that the petitioner's brother Ishak Ali Mustak Ali who was serving at that time under Respondent No.2 at Wanakbori Thermal Power Station, died in an accident that took place on 12.05.1992 while he was on duty, by succumbing to 95% burnt injuries suffered in that accident. He was at the relevant time on regular establishment of the respondents. The father of the deceased Ishak, who was also serving as Junior Draftsman at Wanakbori under the Electricity Board, requested the authorities of the Board to give appointment to his another sonthe petitioner, by showing compassion and on sympathetic ground upon his attaining 18 years of age. It appears that the authority of the erstwhile Gujarat Electricity Board by letter dated 05.09.1991 recommended the case of the petitioner for appointment on humanitarian ground to a suitable post as per qualification. The petitioner was accordingly appointed as Junior Assistant (Typist) by order dated 12.10.1995.
3.1 The appointment give to the petitioner was temporary for a period not exceeding three months and was liable to be terminated without assigning any reason. The petitioner was removed from service by Office Order dated 12.01.1996. It appears from record that he was asked by respondents vide Communication dated 22.05.1998 as to whether he was willing to be considered for appointment under the General Standing Order 295 (for the sake of brevity, 'GSO295'), dated 19.12.1981 for appointment on compassionate basis.
3.2 GSO295 in its Para 9 dealing with 'Employment of dependents' outlined the scheme for compassionate appointment framed and adopted by erstwhile Gujarat Electricity Board. It provided inter alia for employment of dependents of employees who die during service upon fulfillment of the conditions mentioned in GSO295 by the aspirants. It appears that name of the petitioner was included in the list of candidates desirous to get compassionate appointment. However, the petitioner's name came to be removed under the impugned order from the seniority list prepared for the purpose.
4. Learned advocate for the petitioner submitted that cancellation of name of the petitioner from the seniority list of the probables for giving appointment on compassionate basis was unjust and arbitrary. It was submitted that the Assistant Secretary of the erstwhile Gujarat Electricity Board had specifically recommended the case of the petitioner for appointment to the suitable post as per his qualification on the humanitarian ground on his becoming major. It was submitted that subsequent cancellation of the appointment once given upon recommendation was arbitrary and unreasonable. Learned advocate for the petitioner also submitted that the petitioner's appointment was made in special facts and was in peculiar circumstances as petitioner's younger brother had died in accident while in service. He submitted that it was not under GSO295 as such and the could not be subjected to the limiting condition in the GSO, and respondents could not have applied the conditions and criteria of GSO295 in respect of the petitioner's case. The impugned order, according to learned advocate for the petitioner, was unjust, arbitrary and violative of Articles 14 and 16 of the Constitution. He lastly submitted that the petitioner deserved sympathy as the treatment meted out to him was harsh and inequitable. It was submitted that on sympathetic consideration the appointment was made and on similar consideration petitioner's case is required to be viewed.
4.1 Learned advocate for the respondent relied on affidavitinreply and contended that the scheme for providing compassionate appointment was incorporated in GSO295. As per the criteria laid down, such appointment could be given to one who is a child or a spouse of deceased employee. It was not available in the cases where a member of the family of the deceased employee was employed either under the respondent board or was employed elsewhere. It was submitted that as the case of the petitioner did not fall within GSO295, the impugned order was justified.
5. It may be noticed at the outset that order dated 12.10.1995 whereby the petitioner was offered appointment, specifically provided that his appointment was purely on temporary basis and it was not to exceed three months period. The appointment order also contained a condition that the appointment would not confer any right of permanent/regular appointment and was liable to be terminated without notice and without assigning any reason. The petitioner came to be relieved by way of reliving order when the specified period of three months was over. Thus, considering the very nature of the appointment of the petitioner, it was clear that it was temporary and conditional order which did not create or confer any right on the petitioner to continue in service. Considered on the basis of the conditions in the appointment order itself, there was no legal right vested with the petitioner to claim a writ of mandamus for reinstatement in service.
6. As regards the appointment on compassionate ground, the Court cannot be oblivious to the principles of law governing the appointments of this nature. It is well settled by catena of decisions that an appointment on the compassionate ground by its very nature, is an exception to a legal mode for making appointments in the field of public employment. In Umeshkumar Nagpal vs. State of Haryana [(1994) SCC 138], it was held that as of rule the appointments in public service should be made strictly on the basis of open invitation and on merits, and no other mode is permissible. In General Manager, State Bank of India and others vs. Anju Jain [(2008) 8 SCC 475], the Supreme Court observed that the appointment on compassionate basis is a concession and not a right. A person seeking compassionate appointment will not be entitled to it after unreasonable passage of time, because the purpose of such appointment is to help him in negotiating crisis after death of a bread earner family member, as is held in State of Jammu Kashmir and others vs. Saja Ahmed Mir [(2006) 5 SCC 766].
6.1 In State of Haryana and others vs. Rani Devi and another [(1996) 5 SCC 308 : AIR 1996 SC 2445], the Supreme Court observed that claim for compassionate appointment based on the premise that applicant was dependent on the deceased employee can not be held on the touchstone of Article 14 or 16 of the Constitution. However, such claim may be considered reasonably to meet with sudden crisis. It was observed that therefore it was necessary for the authorities to frame rules or administrative instructions governing the appointment on compassionate ground.
6.2 The right to be appointed on compassionate basis not being a vested right or a right in abstract, it can be claimed only within the four corners and parameters of the scheme or the policy providing for benefit of appointment of such nature. This principle is settled in State Bank of India vs. Somvir Singh [AIR 2007 SC (Supp) 505] in which the Apex Court has observed as under.
“10. There is no dispute whatsoever that the appellant Bank is required to consider the request for compassionate appointment only in accordance with the scheme framed by it and no discretion as such left with any of the authorities to make compassionate appointment dehors the scheme. In our considered opinion the claim for compassionate appointment and the right, if any, is traceable only to the scheme, executive instructions, rules etc. framed by the employer in the matter of providing employment on compassionate grounds. There is no right of whatsoever nature to claim compassionate appointment on any ground other than the one, if any, conferred by the employer by way of scheme or instructions as the case may be.”
6.3 This Court has also in State of Gujarat and others vs. Kiritkumar Bhikhabhai Vala [2008 (2) GLR 1138] has taken similar view that compassionate appointment can be claimed only under policy or guidelines enacted for that purpose.
7. Given the above set of principles relating to the claim for compassionate appointment, it is only trite that any claim for compassionate appointment has to flow from rules or the scheme or the policy framed for that purpose. A claim for appointment of such kind in order to be a valid, therefore, has to be necessarily backed by the rules or scheme framed for that purpose. De horse or outside the scheme/rules, no such claim could be recognized. A compassionate appointment can not be on the abstract consideration of a humanitarian ground or on a spacious ground of sympathy.
8. The contention by learned advocate that as the appointment of the petitioner was given as a special case, sympathy may be shown and the relief may be granted on that basis, is stated to be rejected. It is well settled proposition that sympathy is not a factor permissible to grant relief. Where no legal right was established, sympathy cannot be invoked.
9. In view of the above, in order to claim a compassionate appointment it was indispensable to fall within a clause of GSO295 as it contained the scheme and policy for offering appointment on compassionate basis. Indisputably, the petitioner was not covered under the criteria laid down in that scheme and policy. He was not eligible for compassionate appointment, as he was neither a child nor spouse of the deceased employee. His father was already in employment of the Board. Those were the criteria in the scheme. Therefore, cancellation of his name from the seniority list of the dependents candidates for employment on compassionate basis was in accordance with the policy and the scheme only, and, could not be faulted in law.
10. In view of the above discussion, there is no merit in case of the petitioner. Petition is, therefore, dismissed. Rule is discharged. No order as to costs.
Amit [N. V. ANJARIA, J.]