Piyush Maganbhai Patel vs State of Gujarat Thro Secretary

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C.L. Soni, J.—This appeal under Clause 15 of the Letters Patent is at the instance of the original petitioner who filed the petition under Article 226 of the Constitution of India to declare the action of the respondents in refusing to give compassionate appointment to the petitioner as illegal and unconstitutional and to direct the respondents to consider his case for compassionate appointment on the basis of the rules prevailing at the time of his application dated 13.2.2004.

Learned Single Judge rejected the petition mainly on the ground of delay by observing that the decision of the Division Bench of this Court in the case of State of Gujarat and Others Vs. Budhabhai A. Chavda, could not be applied in the prevailing circumstances.

We have heard the learned advocates for the parties. Learned Advocate Mr. Baxi appearing for the appellant submitted that after the father of the appellant expired on 4.9.2003, the appellant moved application for compassionate appointment on 13.2.2004 which was within the time limit and the case of the appellant was also recommended. Mr. Baxi submitted that it was only on account of lapse on the part of the concerned department in not sending the application of the appellant to the head office for long time of about five years, his application remained unattended and subsequently to cover up such lapse, the appellant was asked to submit another application. However, instead of considering such application and giving compassionate appointment to the appellant, only recommendation is made to the Government to consider the case of the appellant as per the new policy dated 5.7.2011 for ex-gratia compensation. Mr. Baxi submitted that it was for no fault on the part of the appellant, the appellant was deprived of his legitimate right to get compassionate appointment. Mr. Baxi submitted that the lapse and inaction on the part of the officers of the concerned department had in fact frustrated the very purpose and object of the policy for giving compassionate appointment to the heirs of deceased employee to get over the financial crisis faced by the family of the deceased employee. Mr. Baxi submitted that as per the view taken by the Division Bench in the case of Budhabhai A. Chavda (supra), the appellant was very much entitled for compassionate appointment and, therefore, at this stage, the appellant cannot be refused the compassionate appointment on the ground that now the circumstances have been changed.

Learned A.G.P. Mr. Oza appearing for the respondents State Authorities submitted that the application made by the appellant for compassionate appointment remained pending for long time and when it came to be considered, period of more than seven years had already passed. Mr. Oza submitted that since the application of the appellant was not available, the appellant was asked to make another application which the appellant made on 12.1.2009. However, on account of introduction of new policy for compassionate appointment under Government Resolution dated 5.7.2011, since it was not possible to consider the case of the appellant for compassionate appointment, respondent no. 2 made recommendation for considering application of the appellant under the new policy. Mr. Oza submitted that for such action taken by respondent no. 2, it cannot be said that there was any illegality.

Having heard the learned advocates for the parties, it appears that there is no dispute about the fact that after the father of the appellant expired on 4.9.2003, the appellant made application on 13.2.2004. However, no action was taken by the concerned officers on such application of the appellant for compassionate appointment. In the proposal dated 16.11.2011 at Annexure H, which is the recommendation made by respondent No. 2 to respondent no. 1 for considering the case of the appellant under the new policy dated 5.7.2011 for ex-gratia compensation, it is stated that the application of the appellant dated 13.2.2004 was sent to the office of the Executive Engineer, Ahmedabad for further action, however, since the proposal from the Divisional Office could not be sent to the head office at the relevant time, new application - proposal was called for and the same was sent vide letter dated 5.7.2011 with a recommendation for taking necessary action. It is further stated that now, in view of the policy dated 5.7.2011, since it is not possible to give compassionate appointment to the appellant, the explanation from the concerned divisional office for belated proposal in the case of the appellant was called for and the explanation given is that since at the relevant time, proposal prepared was misplaced, delay had occurred. The explanation of three different officers looking after such work was sent. It is further stated that since the delay occurred on account of mistake committed by the employees of the Divisional Office, responsibility of such officers could be decided under Rule 3(1) of the Gujarat State Service (Conduct) Rules, 1971. With such facts, the ultimate recommendation made in the said communication/proposal dated 16.11.2011 is to pass necessary orders under the new policy for ex-gratia payment arrived at Rs. 4,00,000.00.

From the facts narrated in the proposal dated 16.11.2011, one thing is very clear that it was on account of the concerned officers, the application of the appellant for compassionate appointment though made within the time limit could not be considered at the relevant time. Since there is change in the policy for giving ex-gratia compensation in lieu of compassionate appointment under the Government Resolution dated 5.7.2011, for which the respondent No. 2 - Superintending Engineer, has recommended the case of the appellant, the application of the appellant could have been considered for ex-gratia payment under the policy dated 5.7.2011.

Mr. Baxi, however, relied on the decision of the Division Bench of this Court in the case of Budhabhai (supra) so as to submit that the case of the appellant would stand governed by the earlier policy and, therefore, the appellant shall be entitled to compassionate appointment on the basis of the earlier policy. We find that the decision in Budhabhai (supra) was before the new policy came into force and on the basis of earlier decision of Division Bench of this Court which was not followed by us in other similar cases on account of change in policy.

We have considered above such contention while deciding group of appeals being Letters Patent Appeal No. 2385 of 2009 and allied matters and rejected the similar contention raised therein. In the judgment delivered by us in the said group of appeals, we have held and observed in para 15 to 20 as under:

However, there is further development in the law. In the case of State of Gujarat and Others Vs. Arvindkumar T. Tiwari and Another, , the Hon''ble Supreme Court examined the issue of eligibility criteria while considering the applications for appointment on compassionate ground. The Hon''ble Supreme Court held and observed in para 8 to 10 and 12 as under:-

It is a settled legal proposition that compassionate appointment cannot be claimed as a matter of right. It is not simply another method of recruitment. A claim to be appointed on such a ground, has to be considered in accordance with the rules, regulations or administrative instructions governing the subject, taking into consideration the financial condition of the family of the deceased. Such a category of employment itself, is an exception to the constitutional provisions contained in Articles 14 and 16, which provide that there can be no discrimination in public employment. The object of compassionate employment is to enable the family of the deceased to overcome the sudden financial crisis it finds itself facing, and not to confer any status upon it.

The eligibility for the post may at times be misunderstood to mean qualification. In fact, eligibility connotes the minimum criteria for selection, that may be laid down by the executive authority/legislature by way of any statute or rules, while the term qualification, may connote any additional norms laid down by the authorities. However, before a candidate is considered for a post or even for admission to the institution, he must fulfill the eligibility criteria.

The appointing authority is competent to fix a higher score for selection, than the one required to be attained for mere eligibility, but by way of its natural corollary, it cannot be taken to mean that eligibility/norms fixed by the statute or rules can be relaxed for this purpose to the extent that, the same may be lower than the ones fixed by the statute. In a particular case, where it is so required, relaxation of even educational qualification(s) may be permissible, provided that the rules empower the authority to relax such eligibility in general, or with regard to an individual case or class of cases of undue hardship. However, the said power should be exercised for justifiable reasons and it must not be exercised arbitrarily, only to favour an individual. The power to relax the recruitment rules or any other rule made by the State Government/Authority is conferred upon the Government/Authority to meet any emergent situation where injustice might have been caused or, is likely to be caused to any person or class of persons or, where the working of the said rules might have become impossible.

Fixing eligibility for a particular post or even for admission to a course falls within the exclusive domain of the legislature/executive and cannot be the subject-matter of judicial review, unless found to be arbitrary, unreasonable or has been fixed without keeping in mind the nature of service, for which appointments are to be made, or has no rational nexus with the object(s) sought to be achieved by the statute. Such eligibility can be changed even for the purpose of promotion, unilaterally and the person seeking such promotion cannot raise the grievance that he should be governed only by the rules existing, when he joined service. In the matter of appointments, the authority concerned has unfettered powers so far as the procedural aspects are concerned, but it must meet the requirement of eligibility etc. The court should therefore, refrain from interfering, unless the appointments so made, or the rejection of a candidature is found to have been done at the cost of ''fair play'', ''good conscious'' and ''equity''.

(Emphasis Supplied)

However, since in the facts of the case, Hon''ble Supreme Court found that as on the date of the applications for compassionate appointment, the eligibility criteria was 10th Std. and the applicant was unable to pass 8th Std., he was certainly not eligible to apply for the post and it was not desirable nor even permissible to issue direction to relax the said eligibility criteria and to appoint him on merely humanitarian ground. In such facts of the case, the Hon''ble Supreme Court further observed that the question framed as to whether application for compassionate appointment was to be considered as per the existing rules or under the rules as existing on the date of death of the employee was not required to be considered.

Hon''ble Supreme Court has further considered the issue about the applicability of the Scheme for compassionate appointment in the recent decision in the case of MGB Gramin Bank (supra). In this judgment, Hon''ble Supreme Court has considered its earlier judgment in the case of State Bank of India (supra) and has held and observed in para 8 to 15 as under:-

The Courts and the Tribunals cannot confer benediction impelled by sympathetic considerations to make appointments on compassionate grounds when the regulation framed in respect thereof did not cover and contemplate such appointments.

In A. Umarani Vs. Registrar, Cooperative Societies and Others, , while dealing with the issue, this Court held that even the Supreme Court should not exercise the extraordinary jurisdiction under Article 142 issuing a direction to give compassionate appointment in contravention of the provisions of the Scheme/Rules etc., as the provisions have to be complied with mandatorily and any appointment given or ordered to be given in violation of the scheme would be illegal.

The word ''vested'' is defined in Black''s Law Dictionary (6th Edition) at page 1563, as ''vested'', Fixed; accrued; settled; absolute; complete. Having the character or given in the rights of absolute ownership; not contingent; not subject to be defeated by a condition precedent. Rights are ''vested'' when right to enjoyment, present or prospective, has become property of some particular person or persons as present interest; mere expectancy of future benefits, or contingent interest in property founded on anticipated continuance of existing laws, does not constitute vested rights.

In Webster''s Comprehensive Dictionary (International Edition) at page 1397, ''vested'' is defined as Law held by a tenure subject to no contingency; complete; established by law as a permanent right; vested interest. (Vide: Masammat Bibi Sayeeda and Others etc. Vs. State of Bihar and Others, ; and J.S. Yadav Vs. State of U.P. and Another, .

Thus, vested right is a right independent of any contingency and it cannot be taken away without consent of the person concerned. Vested right can arise from contract, statute or by operation of law. Unless an accrued or vested right has been derived by a party, the policy decision/scheme could be changed. (Vide: Kuldeep Singh Vs. Govt. of NCT of Delhi, .

A scheme containing an in pari materia clause, as is involved in this case was considered by this Court in State Bank of India and Another Vs. Raj Kumar, . Clause 14 of the said Scheme is verbatim to clause 14 of the scheme involved herein, which reads as under:

"14. Date of effect of the scheme and disposal of pending applications:

The Scheme will come into force with effect from the date it is approved by the Board of Directors. Applications pending under the Compassionate Appointment Scheme as on the date on which this new Scheme is approved by the Board will be dealt with in accordance with Scheme for payment of ex-gratia lump sum amount provided they fulfill all the terms and conditions of this scheme."

The Court considered various aspects of service jurisprudence and came to the conclusion that as the appointment on compassionate ground may not be claimed as a matter of right nor an applicant becomes entitled automatically for appointment, rather it depends on various other circumstances i.e. eligibility and financial conditions of the family, etc., the application has to be considered in accordance with the scheme. In case the Scheme does not create any legal right, a candidate cannot claim that his case is to be considered as per the Scheme existing on the date the cause of action had arisen i.e. death of the incumbent on the post. In State Bank of India & Anr. (supra), this Court held that in such a situation, the case under the new Scheme has to be considered.

In view of the above position, the reasoning given by the learned Single Judge as well as by the Division Bench is not sustainable in the eyes of law. The appeal is allowed and the impugned judgments of the High Court are set aside.

The respondent may apply for consideration of his case under the new Scheme and the appellant shall consider his case strictly in accordance with clause 14 of the said new Scheme within a period of three months from the date of receiving of application.

With these observations, appeal stands disposed of.

The Government has now introduced the policy dated 5.7.2011 which provides for payment of ex-gratia amount of compensation in lieu of compassionate appointment. We had an occasion to go through the said policy, copy of which was produced in another appeal which was also heard on the same day when these appeals were heard by us.

Thus, considering the observations made in para 8 to 10 and 12 by the Hon''ble Supreme Court in the case of Arvindkumar T. Tiwari (supra) and in light of recent decision of Hon''ble Supreme Court in the case of MGB Gramin Bank (supra) and also on account of change in the policy for compassionate appointment, the view expressed by the Hon''ble Division Bench in the above group of appeals cannot be now followed.

In light of such development and as held by the Hon''ble Supreme Court in the case of Raj Kumar (supra) and MGB Gramin Bank (supra), the compassionate appointment cannot be claimed as a matter of right but it should be strictly in accordance with the rules, regulations and administrative instructions governing the subject.

In view of above, even while considering that delay in deciding the application would defeat the purpose of compassionate appointment, as observed by the Division Bench of this Court in the above-referred group of Letters Patent Appeals, the impugned orders cannot be now allowed to be operated. If it is permissible to the original petitioners, they may apply under the new scheme and the appellants may take decision thereon in accordance with law.

We find that in the facts of the case, instead of dismissing the petition, learned Single Judge could have directed the respondent No. 1 - concerned authority of the State Government to consider the application of the appellant under the new policy for payment of ex-gratia compensation in lieu of compassionate appointment under the resolution dated 5.7.2011. We, therefore, set aside the impugned judgment of the learned single Judge and direct respondent No. 1 - the concerned authority of the State Government to consider the application of the appellant under the new policy dated 5.7.2011 and take decision thereon within a period of three months from the date of receipt of this order. Appeal is allowed to the aforesaid extent.