Jiteshbhai Bharatbhai Waghela vs State of Gujarat and Others

Jayant Patel, J.—The present petition is preferred by the petitioner for issuing appropriate directions to quash and set aside the decision of the respondent authorities whereby the compassionate appointment is denied to the petitioner.

Heard Mr. Gade, learned Counsel for the petitioner and Mr. Dhabi, learned AGP for the respondent authorities.

It appears that the present case is covered by the decision of this Court in SCA No. 29814 of 2007 dated 19.12.2007. In the said case, it was, inter alia, observed by this Court as under:

It appears that it is an admitted position that the petitioner is not holding the qualification of SSC, but the contention on behalf of the petitioner is that the appointment by direct selection or by transfer or on deputation as per the rules of recruitment vide notification dated 16.03.2005 is a different aspect whereas, the compassionate appointment are regulated by the Resolution of the Government.

Whereas Mr. Pandya, learned AGP for the State Authorities relied upon the decision of this Court in Special Civil Application No. 22363 of 2005 dated 21.11.2005 and its confirmation thereof by the Division Bench of this Court in Letters Patent Appeal No. 83 of 2006 vide order dated 20.01.2006. The learned AGP also relied upon the another decision of this Court dated 23.11.2005 in Special Civil Application No. 1316/05. However, he stated that Letters Patent Appeal is preferred against the order passed in Special Civil Application No. 9316 of 2005 and the same is admitted, but no interim orders are passed by the Division Bench.

It appears that the entry in the Government service would be regulated by the statutory rules and in the present case, recruitment rules for Class-IV post shall be made applicable. Rule shall prevail over any policy of the Government framed by resolution. Further, if the recruitment rules did not provide for any entry by way of compassionate appointment, the logical end would be that the compassionate appointment may not be permissible at all. But, such argument cannot be accepted for the simple reason that the compassionate appointment can be treated as for one of the mode to be considered under the head of direct selection. Therefore, the candidate, who enters the service by way compassionate appointment must meet with the eligibility criteria for the post in question. The requirement of qualification may even apply for compassionate appointment and the said aspect is also clarified by the State Government vide order dated 29.03.2007.

This Court had an occasion to consider the matter on the aspects of providing of the eligibility criteria even in the matter of compassionate appointment in the case of Dineshsingh Rajusingh Chauhan v. State of Gujarat in Special Civil Application No. 22363 of 2005 on 21.11.2005 and it was observed by this Court at paras 3 & 4 as under:

Having considered the above, it appears that as such the father of the petitioner had expired in the year 1992 and the reasons recorded in the impugned order dated 26.8.2005 show that for a period of about 9 years nobody applied for compassionate appointment. Further, as the petitioner is not holding the necessary qualification the application is rejected as per the policy of the Government. No such vested right can be read as sought to be canvassed on behalf of the petitioner that had the application of the petitioner been decided immediately, the petitioner was meeting with the qualification. At the time when the appointment is to be given to the petitioner, the petitioner must fulfill the necessary qualification. If the application is rejected on such ground that the petitioner is not holding the necessary qualification, such a decision on the part of the authority cannot be said to be unreasonable or arbitrary. The reference may be made to the recent decision of the Supreme Court in the case of " Commissioner of Public Instructions and Others Vs. K.R. Vishwanath, and more particularly the observations made at para 10 of the said decision relevant portion of the same reads as under:

As was observed in State of Haryana and Ors. v. Rani Devi and Anr. AIR 1966 SC 2445 it need not be pointed out that the claim of person concerned for appointment on compassionate ground is based on the premises that he was dependent on the deceased employee. Strictly this claim can not be upheld on the touchstone of Article 14 or 16 of the Constitution of India. However, such claim is considered as reasonable and permissible on the basis of sudden crisis occurring in the family of such employee who has served the State and dies while in service. That is why it is necessary for the authorities to frame rules, regulations or to issue such administrative orders which can stand the test of Article 14 and 16. Appointment on compassionate ground can not be claimed as a matter of right.

It was further observed in the very para that:

the appointment on compassionate ground is not another source of recruitment but merely an exception to the aforesaid recruitment taking into consideration the fact of the death of employee while in service leaving his family without any means of livelihood. In such cases, the object is to enable the family to get over sudden financial crisis. But, such appointments on compassionate ground have to be made in accordance with the rules, regulations or administrative instructions taking into consideration the financial condition of the family of the deceased.

Therefore, the appointment on compassionate ground must be strictly meeting with the policy of the Government no departure should be read since such appointments are normally cannot be sustained to meet with the test of Articles 14 and 16 of the Constitution of India.

It may be observed that thereafter, the similar question came to be considered in the case of Renukaben Vinbhai Lakdhir v. State of Gujarat and Ors. in Special Civil Application No. 9316 of 2005 decided on 23.11.2005 and it was observed by the Court at para 5 to 10 as under:

Considering the above, it appears that as such, the issue is covered by the decision of this Court dated 21.11.2005 in Special Civil Application No. 22363 of 2005, which has been taken after taking into consideration the recent decision of the Apex Court in the case of Commissioner of Public Instructions and Others Vs. K.R. Vishwanath, It may be recorded that in the said decision dated 21.11.2005, at para 3 & 4, it was observed by this Court as under:

Having considered the above, it appears that as such the father of the petitioner had expired in the year 1992 and the reasons recorded in the impugned order dated 26.08.2005 show that for a period of 9 years nobody applied for compassionate appointment. Further, as the petitioner is not holding the necessary qualification the application is rejected as per the policy of the Government. No such vested right can be read as sought to be canvassed on behalf of the petitioner had the application of the petitioner been decided immediately, the petitioner was meeting with the qualification. At the time when the appointment is to be given to the petitioner, the petitioner must fulfill the necessary qualification. If the application is rejected on such ground that the petitioner is not holding the necessary qualification, such a decision on the part of the authority cannot be said to be unreasonable or arbitrary. The reference may be made to the recent decision of the Supreme Court in the case of Commissioner of Public Instructions and Others Vs. K.R. Vishwanath, and more particularly the observations made at para 10 of the said decision relevant portion of the same reads as under:

As was observed in State of Haryana and Others Vs. Rani Devi and Another, it need not be pointed out that the claim of the person concerned for appointment on compassionate ground is based on the premises that he was dependent on the deceased employee. Strictly this claim cannot be upheld on the touchstone of Article 14 or 16 of the Constitution of India. However, such claim is considered as reasonable and permissible on the basis of sudden crises occurring in the family of such employee who has served the State and dies while in service. That is why it is necessary for the authorities to frame rules, regulations or to issue such administrative orders which can stand the test of Article 14 and 16. Appointment on compassionate ground can not be claimed as a matter of right.

It was further observed in the very para that:

the appointment on compassionate ground is not anther source of recruitment but merely an exception to the aforesaid recruitment taking into consideration the fact of the death of employee while in service leaving his family without any means of livelihood. In such cases, the object is to enable the family to get over sudden financial crises. But, such appointments on compassionate ground have to be made in accordance with the rules, regulations or administrative instructions taking into consideration the financial conditions of the family of the deceased.

Therefore, the appointment on compassionate ground must be strictly meeting with the policy of the Government not departure should be read since such appointments are normally cannot be sustained to meet with the test of Articles 14 and 16 of the Constitution of India.

On the same line, as such, the contentions raised by the learned advocate for the petitioner cannot be sustained.

Mr. Trivedi, learned Counsel for the petitioner relied upon the decision of the Allahabad High Court in the case of Ajay Kumar Shukla v. State of U.P and Ors. reported in 2005(1) CLR 1105 for contending that if the rule did not specifically provide for compassionate appointment, the dependent members of the family can be said as deemed to be covered and therefore, the petitioner would be entitled for compassionate appointment. As such, in the said decision before Allahabad High Court, since the father of the petitioner was missing, after stipulated period, he applied for compassionate appointment and the Court considered that such cases can be treated for including the claim of compassionate appointment.

Such issue does not arise for consideration of this Court in the present case and therefore, the said decision is of no help to the petitioner. Mr. Trivedi, learned Counsel for the petitioner also relied upon the another judgment of the Apex Court in the case of Punjab National Bank and Others Vs. Ashwini Kumar Taneja, and contended that if there is no financial means for survival of the family, the compassionate appointment should be given.

In my view, the said decision of the apex court is of no support to the petitioner for contending that whether the rules for educational qualification should be made applicable at the time when the compassionate appointment is to be given by the authority or not. On the contrary, the observations made by the Apex Court in the said decision at para 5 are inter alia as under:

The appointment on compassionate ground cannot be claimed as a matter of right.

If by introduction of the scheme for compassionate appointment, no vested right is created in favour of the petitioner upon the death of the deceased employee at the most, all the necessary qualifications, prevailing at the time when the appointment is to be given cannot be ignored by the authority while giving compassionate appointment. If the authority has declined the appointment on the ground that the petitioner is not meeting with the educational qualification, such decision on the part of the authority cannot be said to be unreasonable or arbitrary, which may call for interference of this Court in exercise of powers under Article 226 of the Constitution of India.

Mr. Trivedi, learned Counsel for the petitioner also submitted that as such, rules are not applicable because they pertain to direct selection or promotion and the petitioner is claiming only compassionate appointment and therefore rules have no applicability.

The policy of compassionate appointment as observed by the Apex Court has to meet with the test of Articles 14 & 16 of the Constitution of India. No appointment even on compassionate ground can be permitted, which consequently results into deteriorating the efficiency in the administration. If at the time when the compassionate appointment is to be given, the educational qualification is ignored or even substantially relaxed by the authority, it may adversely affect the efficiency of the administration and consequently would not meet with the test of Articles 14 of the Constitution of India. Therefore, if the authority has considered the educational qualification prevailing while considering the case for compassionate appointment, such an aspect cannot be said to be wholly irrational or irrelevant and therefore even if the rules are not applicable, the grounds considered by the authority cannot be said to be non-germane or irrational and on the contrary, it appears to be reasonable to consider the prevailing educational qualification for the post for which, appointment is to be given or to be considered for compassionate appointment. Hence also, the contention of Mr. Trivedi, learned Counsel for the petitioner cannot be accepted.

It may also be recorded that the decision of this Court in the case Special Civil Application No. 22363 of 2005, which has been referred to herein above, was also carried in Letters Patent Appeal No. 83/06 and the Division Bench of this Court in its order date 20.01.2006, observed as under:

Shri Saiyed submitted that when the appellant lost his father in 1992 he was minor. After becoming major he submitted an Application in 2001 for appointing him on compassionate ground. At that time the qualification was 7th standard and not S.S.C. He, therefore, submitted that for no fault of the appellant - petitioner he was denied appointment on compassionate ground because of the subsequent change in the Rules regarding qualification under which S.S.C. is the minimum qualification. Compassionate appointment is not a matter of right. Compassionate appointment is to be given to a person who is in dire need of job and not after such a long time. When the petitioner was lacking qualification and on that ground if the Authority has rejected his Application then, in our considered opinion, the learned Judge was absolutely right in dismissing the petition considering the Judgment of the Honourable Supreme Court reported in Commissioner of Public Instructions and Others Vs. K.R. Vishwanath,

Ultimately, the Letters Patent Appeal was dismissed. It is true that against the subsequent decision of this Court in Special Civil Application No. 9316 of 2005, Letters Patent Appeal No. 695/06 is preferred and is admitted. However, no interim order is passed by the Division Bench staying the operation of the order. Therefore, it cannot be said that the matter is required to be considered dehors the view taken by this Court in the above referred decisions, which in any case is binding to the coordinate bench of this Court.

As the petitioner is not fulfilling the eligibility criteria in view of the same reasoning referred to hereinabove in the other decision of this Court, the decision of the respondent authority of denying the compassionate appointment cannot be said as arbitrary or unreasonable.

Same is the situation in the present case inasmuch as it is an admitted position that the petitioner is not holding the qualification for the post in question and, therefore, the decision of the authority for denying compassionate appointment cannot be said as arbitrary or unreasonable.

Hence, no case is made out for interference. Therefore, rejected.