IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL NO. 97 OF 2002 IN SPECIAL CIVIL APPLICATIONNo 4983 OF 2001 WITH CIVIL APLICATION NO. 1034 OF 2002 IN LETTERS PATENT APPEAL NO. 97 OF 2002 WITH LETTERS PATENT APPEAL NO. 204 OF 2002 IN SPECIAL CIVIL APPLICAITON NO. 799 OF 2001 WITH CIVIL APPLICATION NO. 2864 OF 2002 IN LETTERS PATENT APPEAL NO. 204 OF 2002 WITH LETTERS PATENT APPEAL NO. 344 OF 2002 IN SPECIAL CIVIL APPLICAITON NO. 11416 OF 2000 WITH CIVIL APPLICATION NO. 3531 OF 2002 IN LETTERS PATENT APPEAL NO. 344 OF 2002 WITH LETTERS PATENT APPEAL NO.433 OF 2002 IN SPECIAL CIVIL APPLICATION NO. 5418 OF 2001 WITH CIVIL APPLICATION NO. 3179 OF 2002 IN LETTERS PATENT APPEAL NO. 433 OF 2002 WITH LETTERS PATENT APPEAL NO.438 OF 2002 IN SPECIAL CIVIL APPLICATION NO. 5086 OF 2001 WITH CIVIL APPLICATION NO. 3157 OF 2002 IN LETTERS PATENT APPEALNO. 438 OF 2002 WITH LETTERS PATENT APPEAL NO.451 OF 2002 IN SPECIAL CIVIL APPLICATION NO. 9521 OF 2001 WITH CIVIL APPLICATION NO. 3165 OF 2002 IN LETTERS PATENT APPEAL NO. 451 OF 2002 WITH LETTERS PATENT APPEAL NO.455 OF 2002 IN SPECIAL CIVIL APPLICATION NO. 5049 OF 2001 WITH CIVIL APPLICATION NO. 3146 OF 2002 IN LETTERS PATENT APPEAL NO. 455 OF 2002 WITH LETTERS PATENT APPEAL NO.458 OF 2002 IN SPECIAL CIVIL APPLICATION NO. 8935 OF 2001 WITH CIVIL APPLICATION NO. 3077 OF 2002 IN LETTERS PATENT APPEAL NO. 458 OF 2002 WITH LETTERS PATENT APPEAL NO. 671 OF 2002 IN SPECIAL CIVIL APPLICATION NO. 8837 OF 2001 WITH CIVIL APPLICATION NO. 3167 OF 2002 IN LETTERS PATENT APPEAL NO. 671 OF 2002 WITH LETTERS PATENT APPEAL NO. 672 OF 2002 IN SPECIAL CIVIL APPLICATION NO. 11615 OF 2000 WITH CIVIL APPLICATION NO. 3083 OF 2002 IN LETTERS PATENT APPEAL NO. 672 OF 2002 WITH LETTERS PATENT APPEAL NO.680 OF 2002 IN SPECIAL CIVIL APPLICATION NO. 2725 OF 2000 WITH CIVIL APLICATION NO. 4000 OF 2002 IN LETTERS PATENT APPEAL NO. 680 OF 2002 WITH SPECIAL CIVIL APPLICATION NO. 1468 OF 2000 WITH SPECIAL CIVIL APPLICATION NO. 8984 OF 2001 For Approval and Signature: Hon'ble Acting Chief Justice MR.JUSTICE J.N.BHATT and Hon'ble MR.JUSTICE KUNDAN SINGH ============================================================ 1. Whether Reporters of Local Papers may be allowed : NO to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : YES of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- STATE OF GUJARAT Versus UPENDRA P. BAROT -------------------------------------------------------------- Appearance: IN ABOVE ALL LETTERS PATENT APPEALS MR. KAMAL B TRIVEDI, ADDL.ADVOCAE GENERAL with MR AD OZA, GP and MR LR PUJARI AGP for Appellant/s In L.P.A. No. 97/02 Mr. H.C. Raval with Mr. M.H. Raval for respondent. In L.P.A. No. 204/02 Mr. I.S. Supehia for respondent. In L.P.A. No. 344/02 Mrs. Sangeeta N. Pahwa for respondent In L.P.A. No. 433/02 Mr. Mitul K. Shelat for the respondent In L.P.A. No. 438/02 Mr. Mrs. Suman Khare for the respondent no. 1. In L.P.A. No.451/02 Mr. C.B.Dastoor for respondent no. 1 in L.P.A. No. 455/02 Mr. Hardik C. Raval for respondent In L.P.A. No. 458/02 Ms. Roopal Patel for the respondent In L.P.A. No. 671/02 In L.P.A. No. 672/02 Mr. P.H. Pathak for the respondent no. 1 In L.P.A. No. 680/02 Mr. R.D. Dave for the respondent no. 1. In Spl. C.A No. 1468 of 2000 Mr. Sunil K. Shah with Ms. Sushma S. Shah for the petitioner. Mr. Kamal B. Trivedi, Addl. Advocate General with Mr. LR Pujari, AGP for the respondents. In Spl. C.A. No. 8984 of 2001 Tanna Associates for the petitioner Mr. Kamal B. Trivedi, Addl. Advocate General with Mr. AD OZA, G.P. and MR LR PUJARI, A.G.P. for the respondents. -------------------------------------------------------------- CORAM : Hon'ble Acting Chief Justice MR.JUSTICE J.N.BHATT and MR.JUSTICE KUNDAN SINGH Date of decision:-31/03/2003 C.A.V. COMMON JUDGEMENT (Per : MR.JUSTICE KUNDAN SINGH) 1. In all these appeals as well as above petitions common questions are involved and hence all these matters are being disposed of by this common judgment. In the above two Special Civil Applications the orders of the respondent authorities of the State Government have been challenged whereby the applications of the original petitioners for compassionate appointment have been rejected. 2. All the above noted Letters Patent Appeals have been filed against the judgments and orders of the learned Single Judges whereby the concerned Special Civil Applications have been allowed directing the respondent authorities of the State Government to reconsider the representation of the original petitioners, who are respondents in the present appeals excluding the family pension or pensionary benefits while calculating the income of the family of the original petitioners, within specified period for appointment on suitable post of Class-III or IV as the case may be on the compassionate grounds. 3. In the above two Special Civil Applications the petitioners have sought for quashing and setting aside the decision of the concerned authorities of the State Government whereby the petitioner's applications/representations for appointment on compassionate grounds have been rejected and for further direction to consider the case of the petitioners for appointment on the suitable post on compassionate ground while calculating the income of the family of the petitioner/s, the pension being received by the family of the petitioner/s should not be taken into account. The petitioners of the aforesaid petitions as well as the original petitioners moved their applications before the concerned authority of the State Government for being appointed on the suitable post either in Class-III or Class-IV on compassionate ground as their family members died during the tenure of their service and hence they are entitled to get appointment on suitable post on compassionate ground. 4. Mr. Kamal B. Trivedi, learned Addl. Advocate General appearing on behalf of the respondent State Government contended that this Court from the initial stage relied on the decisions of the Supreme Court in the case of Smt. Phoolwati Vs. Union of India (AIR 1991 SC 479) and in the case of Smt. Sushma Gosain Vs. Union of India (AIR 1989 SC 1976) and misinterpreted the Supreme Court decisions while holding that the family pension or pensionary benefits can not be included in calculating the family income of the person concerned and that income of family pension or pensionary benefits should be excluded from the family income for the consideration of compassionate appointment and in support of his arguments placed the following decisions of this Court wherein the directions have been issued to the concerned authorities of the respondents to consider the case of the original petitioners for appointment on compassionate ground on Class-III or Class-IV as the case may be, on the basis of the income fixed by the Government under the instructions, rules and policy framed by the Government, excluding the family pension being received by the family of the deceased employee : (i) In the case of C.B. Maru Vs. Dhandhuka Nagar Panchayat, reported in 1993 (2) G.L.H. 822, wherein it is held as under : "To start with - to refuse to give employment to the dependent (petitioner of the deceased employee on the ground that the mother was entitled to get family pension of Rs.645/-/along with other benefits like Provident Fund, Gratuity, etc. etc. is absolutely unreasonable. Merely because the widow of deceased employee was entitled to some retrial benefits that by itself can never be made a ground to refuse appointment to the son of deceased employee on compassionate grounds." (ii) In the case of Manubhai G. Desai Vs. State of Gujarat, reported in 1998 (1) G.L.H. (UJ) 23, by the learned Single Judge, wherein it is observed as under : "Moreover, as per the decision of this Court in Chanabhai Babubhai Maru Vs. President/Secretary Dhandhuka Nagar Panchayat, reported in 1993 (2) G.L.H. 822, while computing the income of the family, amount of pension ought not to have been considered" xxx xxx xxx xxx xxx In the facts and circumstances of the case, however, the authorities are directed to decide the matter in accordance with the decision of this Court including the above decisions as also the relevant circulars. Since the matter pertains to compassionate appointment, the authorities are directed to decide the same in accordance with law as expeditiously as possible preferably within four weeks from the date of receipt of the writ." (iii) In the case of Dilipsinh B. Rathod Vs. State of Gujarat - judgment dated 13-8-1999 rendered by the learned Single Judge of this Court in Special Civil Application No. 11020 of 1993, wherein it has been held as under : "In any case, the fact remains that this Court has taken view in the case of C.B. Maru that appointment on compassionate grounds cannot be denied on the ground the receipt of retiral benefits including the amount of family pension. In another case of Manubhai Gothabhai Desai (supra), this Court which placing reliance on C.B. Maru's case (supra) has categorically observed that while computing the income of the family, the amount of pension ought not to have been considered." xxx xxx xxx xxx xxx "In this view of the matter, there remains no scope so sustain the stand taken by the respondents to take the monthly income of the family of the present case to be more than Rs.1000/- merely because the widow, i.e. petitioner's mother is getting Rs.450/- and the total income of the pension is Rs.908/-. If the income of the pension is not to be included as has been held by this Court in the cases as aforesaid, the monthly income of the petitioner's family would certainly come out to be less than Rs.1000/- and therefore, this Court has no hesitation in holding that the stand taken by the respondents and the denial of the consideration of the petitioner's case for appointment on compassionate grounds as has been taken by the respondents and conveyed to the petitioner is not at all tenable in the eye of law. (iv) In the case of State of Gujarat Vs. Dilipsinh B. Rathod, the judgment and order dated 13-8-1999 rendered by the Division Bench of this Court in Letters Patent Appeal No. 739 of 1999 in Special Civil Application No. 11020/93, confirming the judgment and order of the learned Single Judge rendered in Spl. C.A. No. 11020/93, it is laid down as under : "The learned Single Judge, relying upon decisions of this Court in C.B. Maru Vs. Dhandhuka Nagar Panchayat, 1993 (2) GLH 822 and Manubhai Godhabhai Desai Vs. State of Gujarat, 1998 (1) GLH (UJ) 23, held that the contention put forward by the authorities cannot be accepted. In C.B. Maru's case, the court considered a decision of the Supreme Court in Smt. Phoolwati Vs. Union of India, AIR 1991 SC 489. Learned Single Judge accordingly allowed the petition and directed the respondent authorities to decide the case of the petitioner on its own merits considering him to be eligible." (v) In the case of Momad Safiq M Saiyed Vs. State of Gujarat, rendered by the learned Single Judge of this Court in Special Civil Application No. 12168 of 2000 on 5-3-2001, wherein it is held as under : "Learned AGP submits that according to the GAD Circular dated 1/9/97 and the guidelines dated 24-2-99 the income of the family has been computed in case of the petitioner. Be that as it may, the fact remains that this question has been considered by this Court in more than one cases and in Special Civil Application No. 11020/93 it was considered that the income as family pension cannot be included in the income of family for the purpose of computing the limit of Rs.2500/-. xxx xxx xxx xxx xxx "In the facts and circumstances of this case, this petition deserves to be allowed. The impugned order dated 15/9/2000 cannot be sustained in the eye of law the same is hereby set aside and the respondents are directed to consider the petitioner's case for appointment on compassionate ground against a suitable post in accordance with law ignoring the factum of the amount of family pension." (vi) In the case of Upendra B. Barot Vs. Chief District Medical Officer - judgment dated 6-8-2001 rendered in Special Civil Application No. 4983 of 2001 by the learned Single Judge of this Court, wherein the learned Single Judge allowed the petition relying upon the view taken in Special Civil Application No. 11020 of 1993 in the case of Dilipsinh B. Rathod V. State of Gujarat and confirmed by the Division Bench of this Court in Letters Patent Appeal No. 739 of 1999, while considering the total income of the family of the deceased, the income of the pension is not required to be taken into consideration. In para 3 of the said judgment, it is held as under : "Learned counsel for the petitioner has argued that while computing the monthly income for the purpose of examining the eligibility for seeking appointment on compassionate grounds, the family pension cannot be included and the appointment on compassionate grounds cannot be denied on the ground of receipt of family pension. To buttress his argument, the learned counsel for the petitioner has placed reliance on decision of this Court on the case of C.B. Maru V. Dhandhuka Nagar Panchayat, reported in 1993 (2) GLH 822 and yet another decision of this court in the case of Manubhai Gothabhai Desai V. State of Gujarat and ors. reported in 1998 (1) GLH (UJ) 23. In C.B Maru's case (supra) this Court while placing reliance in the case of Smt. Phoolwati Vs. Union of India and ors. reported in AIR 1991 SC 469 has taken the view that merely because the widow of the deceased employee was entitled to some retiral benefits, that by itself can never be made ground to refuse appointment to the son of the deceased employee on compassionate grounds. In that case, the widow of the deceased employee was getting a family pension of Rs.645/-/per month and her husband had died on 15th October, 1990. In the case of C.B. Maru (supra) the other details of income regarding Dearness Allowance, Medical Allowance etc. had not been given, but looking to the amount of family pension of Rs.645/-/- it is obvious that if the Dearness Allowance, and Medical Allowance had been taken into consideration, the income may have exceeded Rs.1000/-. In the present case, the father of the petitioner had died in April 1991 and, in the case of C.B. Maru (supra) the date of the death of deceased in October 1990 and therefore, there is hardly a different of about six months in the date of death. Even if 505 Dearness Allowance is added to Rs.645/-/-, it would come to Rs.645/-/- + Rs.322.50 i.e. Rs.967.50 and to that, even if the Medical Allowance of Rs.75/is added or even Rs.50/- it would exceed Rs.1000/-. In any case, the fact remains that this Court has taken the view in the case of C.B. Maru that appointment on compassionate grounds cannot be denied on the ground of receipt of retiral benefits including the amount of family pension. In another case of Manubahi Gothabhai Desai (supra) has categorical observed that while computing the income of the family, the amount of pension ought not to have been considered. In this view of the matter, there remains no scope to sustain the stand taken by the respondents to take the monthly income the family in present case to be more than Rs.1000/merely because the widow i.e. petitioner's mother is getting Rs.450/- and the total income of the pension is Rs.908/-. If the income of the pension is not to be included as has been held by this Court in the cases aforesaid, the monthly income of the petitioner's family would certain come to be less than Rs.1000/- and therefore, this Court has no hesitation in holding that the stand taken by the respondents and the denial of the consideration of the petitioner's for appointment on compassionate grounds as has been taken by the respondents and conveyed to the petitioner is not at all tenable in the eye of law. On such grounds, the petitioner's application could not be rejected for appointment on compassionate grounds. The communication sent to the petitioner as contained in Annexure 'A' dated 9-6-1992 rejecting his application is, therefore, set aside. The respondents are directed to take a decision on the petitioner's application for appointment on compassionate grounds, at the earliest possible opportunity and issue appropriate orders in accordance with law within a shorted possible period, but in no case, later than a period of one month from the date of copy of this order is served upon the Respondent authority. This Special Civil Application is accordingly allowed and the Rule is made absolute in the terms aforesaid. It would be open for the petitioner to serve the certified copy of this order and for that purpose, direct service is permitted." 5. The aforesaid decisions of this Court are mainly based on the decision of this Court in the case of C.B. Maru (supra) which is based on the decsiion of the Supreme Court in the case of Smt. Phoolwati Vs. Union of India & Ors, reported in AIR 1991 SC 469 which is also based on one earlier judgment of the Supreme Court in the case of Smt. Sushma Gosain and others V. Union of India and others, reported in AIR 1989 SC 1976. 6. It is contended by the learned Addl. Advocate General that the case of Smt. Sushma Gosain Vs. Union of India and others (supra) has been considered later on by the Supreme Court itself and it was held by the Supreme Court in the case of Director of Education (Secondary) and Another Vs. Pushpendra Kumar and others etc. etc. reported in AIR 1998 SC 2230, wherein it is held as under : "In the said case, this Court has considered the earlier judgment in Smt. Sushma Gosain V. Union of India, 1989 (4) SCC 468 : (AIR 1989 SC 1976). It has been observed that the said judgment has been misinterpreted to the point of distortion and that it does not justify compassionate employment as a matter of course." 7. The decision in the case of Smt. Sushma Gosain (supra) has also been considered in the case of Umesh Kumar Nagpal Vs. State of Haryana and Others, reported in 1994 (4) SCC 138, wherein it is laid down as under : "It is for these reasons that we have not been in a position to appreciate judgments of some of the High Courts which have justified and even directed compassionate employment either as a matter of course or in posts above Classes III and IV. We are also dismayed to find that the decision of this Court in Sushma Gosain V. Union of India has been misinterpreted to the point of distortion. The decision does not justify compassionate employment either a a matter of course or in employment in posts above Class III and IV. In the present case, the High Court has rightly pointed out that the State Government's instructions in question did not justify compassionate employment in Class II posts. " 8. On the basis of the aforesaid decisions, learned Addl. Advocate General submitted that the Supreme Court in its subsequent decisions has not approved and confirmed the view taken in the case of Sushma Gosain (supra) and that decision of the Supreme Court is out of the picture to be relied upon by this Court. So far as the decision of the Supreme Court in the case of Smt. Phoolwati (supra) is concerned, the decision in the case of Smt. Sushma Gosain (supra) has been referred in the case of Smt. Phoolwati (supra). In the case of Smt. Phoolwati (supra), Smt. Phoolwati moved an application for interim relief for allowing her, who is none other than the wife of deceased husband Ram Krishan Lal who was employed in the Government of India Printing Press, died in harness to employ her second son in the said Printing Press and to allow her to live in the same quarter where her husband lived as an employee of the printing press. This application was dismissed by the Tribunal on the ground that her husband died about a year ago and she cannot retain the quarter which was allotted to her husband while in service. The Supreme Court issued notice and directed that pending decision of this application she be permitted to continue her stay with her sons in the said quarter. The State filed an affidavit stating that the appellant received an amount of Rs.21,700/- as DCR Gratuity. She also received CGE Insurance amounting to Rs. 10,926/- and GPF amounting to Rs.1717/- of her deceased husband. She is also getting a Family Pension of Rs.390/- per month, and as such, she cannot continue to stay in the quarter. On behalf of the Union of India, it was stated before the Supreme Court that on the basis of the instructions it is not possible to provide her second son with an employment in the said press where her husband was previously employed. In a similar case, Smt. Sushma GosainVs. Union of India (AIR 1989 SC 1976 the Supreme Court has held as under : "It can be stated unequivocally that in all claims for appointment on compassionate grounds, there should not be any delay in appointment. The purpose of providing appointment on compassionate ground is to mitigate the hardship due to death of the bread earner in the family. Such appointment should, therefore, be provided immediately to redeem the family in distress. It is improper to keep such case pending for years. If there is no suitable post for appointment supernumerary post should be created to accommodate the applicant." In short, the Union of India was directed to take immediate steps for employing the second son of the appellant in a suitable post commensurate with his educational qualification within a period of one month from the date of the order and Smt. Phoolwati was permitted to stay in the quarter where she was residing with her members of her family. 9. In the case of Smt. Sushma Gosain (supra) the Supreme Court held that Smt. Sushma Gosain made an application for appointment as Lower Division Clerk as back in November 1982. She had then a right to have her case considered for appointment on compassionate ground under the Government Memorandum No.14034/1/77/Estt.(d) dated 25-11-1978 issued by the Ministry of Home Affairs.. In 1983, she passed the trade test and the interview conducted by the DGBR. There is absolute no reason to make her to wait till 1985 when the ban on appointment of ladies was imposed. While doing so, the Supreme Court had no occasion to examine the prevalent instructions in that behalf nor did the Supreme Court examine the income/retirement benefits being received by Smt. Phoolwati after the death of her husband. The Supreme Court has not struck down the instructions and policy of the Central Government, nor it is ratio that instructions and policy framed by the Central Government regarding the income of the family will not be considered for giving compassionate appointment. The matter before the Supreme Court in the case of Phoolwati (supra) was regarding entertainment of her claim to continue her to stay in the quarter originally allotted to her husband. Non-consideration of family pension in case of Smt. Phoolwati was with reference to her claim for retaining the quarter for residential purpose which was originally allotted to her deceased husband and not with reference to her claim for grant of employment to her son on compassionate ground. Thus, it is not legally permissible to contend that since the orders were