1. The present petition is preferred by the petitioner for various reliefs, inter alia, for directing the Municipality to grant compassionate appointment to the petitioner on account of the death of the father of the petitioner on regular basis and it is also prayed that if the post is not available, supernumerary post be created and appointment may be offered to the petitioner.
2. I have heard Mr.Pathak, learned Counsel for the petitioner, Mr.Mishra, learned Counsel for respondent No.1 and Ms.Moxa Thakkar, learned AGP for respondents No.2 and 3.
3. Upon hearing the learned Counsel appearing for both the sides, it appears that it is an undisputed position that though the application of the petitioner for compassionate appointment has not been finalized, the financial support is extended by the Municipality to the family of the deceased employee by offering the appointment to the petitioner as daily-wager and it further appears that the petitioner has continued as daily-wager by the Municipality till today as stated by the learned Counsel for the petitioner and the respondent Municipality. If the financial support has already been given to the family of the deceased employee of the Municipality and the period of about 12 years has passed, it would not be a case for directing the authorities to consider the case of the petitioner for compassionate appointment and take appropriate decision. The essential purpose of offering compassionate appointment is to ensure that there is solace and financial support is available to the family members of the deceased.
4. Even if the matter is examined on the aspects of entitlement of the compassionate appointment, it does appear that the post is not available. Therefore, if the post is not available, the authorities would be justified in not offering compassionate appointment.
5. The attempt was made by Mr.Pathak to contend that after the application was made by the petitioner, the Municipality has appointed certain persons on regular basis and, therefore, if such an action is taken by the Municipality, the right of the petitioner cannot be treated as expired, nor the Municipality can be permitted to take undue benefits of such situation. He wanted to rely upon certain averments and details given in the petition for the employment offered to various persons and, therefore, he submitted that such persons, even if not disturbed, the appointment can be offered by the Municipality by creating a supernumerary post or this Court may direct for creation of supernumerary post for ordering compassionate appointment to be implemented.
6. I am not at all impressed by the said submission of the learned Counsel for the petitioner for the simple reason that those employees, who are stated to have been appointed are not joined as parties to the present proceedings and further no prayer is made by the petitioner to terminate their services or to appoint the petitioner vice the said post. If the post is not available, the authority would be justified in denying the appointment on compassionate basis. If the person, who has applied for compassionate appointment, is asserting that he should be offered compassionate appointment at a place where other persons are already appointed after his application, it is for him to seek appropriate direction for setting aside all the appointments after joining the person as party and thereafter only the matter can be considered for such purpose. There are no pleading whatsoever, nor any prayer for such purpose and, therefore, the matter cannot be considered on that basis.
7. On the aspect of creation of supernumerary post, the contention cannot be accepted for the simple reason that there is no vested right for such purpose already crystallized for the appointment on compassionate basis to the member of the family of the deceased. If the appointment is already offered and thereafter the action is not taken for filling up of the post and Court is of the view that the termination is not called for of the employees who are already appointed, Court may give direction for creation of supernumerary post, but such direction would not be called for in a case where neither any appointment is offered, nor his right for appointment is crystallized.
8. Under these circumstances, when the employment is already offered on daily-wager basis to the petitioner, solace to the family is already available and as stated by the learned Counsel for the petitioner, he has been working for about last 12 years and, therefore, no direction deserves to be issued for taking appropriate decision on the application of the petitioner for compassionate appointment.
9. Further Mr.Pathak, learned Counsel for the petitioner, lastly contended that even if the petitioner is to assert the right as daily-wager for the purpose of regularization in service, it may not happen that until the aspect of regularization in service is considered or decided, the service of the petitioner is terminated and he has rendered jobless.
10. As such whether to regularize a person on permanent post or not is a domain of the employer and the Court would not issue such direction, unless such right is so crystallized by any statute. However, in the present case, as the petitioner has worked as daily-wager and the same can be considered in lieu of the compassionate appointment and the matter may be considered by the Municipality as well as by respondent No.2 for the regularization of service of the petitioner, if the post is available and until the decision is taken, the present status of the petitioner may be continued.
11. Under these circumstances, the present petition is disposed of with the following directions:-
(i) Respondents No.1 and 2 shall consider the case of the petitioner for regularization in service in view of the fact that the employment as daily-wager was offered pending the application for compassionate appointment. Such aspect shall be examined and appropriate decision shall be taken preferably within a period of four months from the date of receipt of the order of this Court. Until the decision is taken and communicated to the petitioner, the present status of the petitioner as daily-wager shall be continued.
12. The petition is disposed of in terms of the aforesaid directions. Rule made absolute accordingly. No order as to costs.
(Jayant Patel, J.) vinod