SA/118/2005 1/17 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SECOND APPEAL No. 118 of 2005 For Approval and Signature: HONOURABLE MR.JUSTICE R.H.SHUKLA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= STATE OF GUJARAT & 2 - Appellant(s) Versus KIRITKUMAR BHIKHABHAI VALA - Defendant(s) ========================================================= Appearance : MR SS SHAH, GP, with MR NIRAJ SONI, AGP, for Appellant(s) : 1 - 3. MR KISHOR M PAUL for Defendant(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE R.H.SHUKLA Date : 29/02/2008 ORAL JUDGMENT The present Second Appeal has been filed by the appellant-State challenging the judgment and order dated 26.8.2004 in Regular Civil Appeal No. 53/2003 passed by the learned Jt. District Judge and 3rd Fast SA/118/2005 2/17 JUDGMENT Track Court, Junagadh, confirming the judgment and oder passed by the trial court in Regular Civil Suit No. 111/2001 by judgment and order dated 29.4.2003 raising substantial question of law as framed by the Court while admitting the appeal and also the substantial questions of law that have been posed in the Memo of Appeal. While admitting the appeal, the Court has posed the following substantial question of law: “Whether the Civil Court could have condoned the delay caused in applying for compassionate appointment by the respondent-original plaintiff by going beyond the resolution of the Government?” The learned Government Pleader submitted the substantial questions of law at the time of hearing as follows, which were required to be considered in light of the observation of the Hon'ble Apex Court in the case of Hero Vinoth (minor) v. Seshammal reported in AIR 2006 SC 2234: 1. Whether the Appellate Court is right in holding that case of the plaintiff falls under the Resolution of 12.5.1977 and/or the Resolution of 16.12.1991? 2. Whether the Appellate Court is right in holding that the case of compassionate appointment can be considered even after delay of years when law and judgments of the High Court and Supreme Court are of contrary? SA/118/2005 3/17 JUDGMENT 2. The short facts of the case, briefly summarized, are that a suit was filed by the respondent-original plaintiff for compassionate appointment on death of his father on 30.6.1985. The deceased father of the plaintiff was serving as Police Constable at Bantwa Police Station and on occurrence of death of the deceased father, Bhikhabhai, on 30.6.1985, the suit came to be filed by the plaintiff being Regular Civil Suit No. 111/01 for compassionate appointment as per the policy of the Government prevailing then vide policy/guidelines dated 12.5.1977. It has been contended that at time of death of the father, the respondent-plaintiff was a minor aged about 8 years and when he attained majority he made an application for compassionate appointment as per the aforesaid policy/guideline dated 12.5.1977. However, the said application of the respondent-plaintiff was rejected on the ground that the application was required to be made within the stipulated period after attaining majority and as the respondent-plaintiff had not made such an application within the prescribed time after attaining majority, the application for compassionate appointment was turned down and, therefor, Regular Civil Suit No. 111/01 came to be filed. The learned trial judge, after the evidence was led, decreed the suit by his judgment and order date 29.4.2003 declaring that the plaintiff was entitled to appointment on compassionate ground and the action of the respondents of rejecting the application of the plaintiff was illegal. It was further directed that, on the basis of the application, or a fresh SA/118/2005 4/17 JUDGMENT application that may be submitted within 30 days, appointment may be given to the plaintiff. 3. The respondent-State, therefore, filed Regular Civil Appeal No. 53/2003 contending, inter alia, that the plaintiff attained majority on 21.5.1995 and he has not applied within 2 years thereafter, i.e., till 20.5.1997 as provided in the said policy/guidelines and he had made an application on 24.9.1997, which was beyond the time-limit prescribed. It has also been contended that the said policy/guidelines dated 12.5.1997 was produced at Exh. 34, and relying upon the said policy/guidelines, it has also been contended that the object of giving appointment on compassionate ground is to mitigate the hardship caused on death of the sole bread-winner in the family. Such appointment should, therefore, be provided immediately to the family in distress. It has also been contended that the learned trial Judge has given findings contrary to the policy/guidelines. The first Appellate Court, after hearing the parties and appreciating the evidence, dismissed the appeal by its judgment and order dated 26.8.2004 and confirmed the judgment and decree passed in Regular Civil Suit No. 111/01 by the trial court. Therefore, the present second appeal has been filed by the State raising substantial question of law stated hereinabove. 4. Learned Government Pleader Mr. Sunit Shah for the appellant-State submitted that both the courts below have misconstrued and misinterpreted the policy/guidelines framed by the Government dated SA/118/2005 5/17 JUDGMENT 12.5.1977 at Exh. 34. It was submitted by him that compassionate appointment cannot be claimed as a matter of right which is well-settled. Learned GP Mr. Shah submitted that such guidelines are issued as a policy or social measure to provide relief to the family of the deceased government employee. However, compassionate appointment can be claimed only if the criteria or the conditions laid down in such guidelines is fulfilled including qualification as well as the manner and the time-limit prescribed for claiming such compassionate appointment or giving such appointment on compassionate ground. 5. Learned Government Pleader Mr. Shah referred to the judgments of both the courts below and in particular of the lower Appellate Court and submitted that the courts below have failed to appreciate the policy/guidelines dated 12.5.1977, Exh. 34, and the reasoning and findings given are contrary to the guidelines. Learned GP Mr. Shah submitted that the death of the deceased father of the plaintiff occurred on 30.6.1985 and at that time the plaintiff was a minor aged about 8 years and he attained majority on 21.5.1995. The learned Government Pleader submitted that clause (9) of the said policy/guidelines clearly provided that there should not be any unduly long time between the death of the government servant and the compassionate appointment. Further, it has been provided that such compassionate appointment will be permissible within a period of five years after the occurrence of the death of the government servant. Only in exceptional cases the period of 5 years can be SA/118/2005 6/17 JUDGMENT relaxed with the prior concurrence of the General Administration Department. Mr. Shah, therefore, submitted that in the facts of the present case the plaintiff attained majority after 10 years. Therefore, this case would not be covered by these guidelines. Learned GP Mr. Shah referred to clause (5), which provides that the family should be in really indigent circumstances and the monthly income from all sources should not be more than Rs. 400 and for considering this income it has been specifically provided that the income from sub-clause (a) to (e) would be considered. Learned Govt. Pleader Mr. Shah submitted that the family pension would have been made available and all these aspects have not been considered by the lower courts. However, referring to another guideline which has been issued dated 16.12.1991, which has been referred to and relied upon by the courts below, and there it has been provided that for the purpose of making a claim for compassionate appointment on occurrence of death of the employee with a rider that such an application should be made within a period of 2 years, and if the claimant son or daughter is minor, then if the application is made within 6 months on attaining majority, such an application may be considered with concurrence of the General Administration Department. He also further emphasized that the period of 5 years which was there in the earlier guideline of 12.5.1977 has been reduced in subsequent guideline dated 16.12.1991 to a period of 2 years, which has not been appreciated. Mr. Shah, therefore, submitted that the courts below have erroneously proceeded on the footing SA/118/2005 7/17 JUDGMENT that there was merely a delay in making an application for compassionate appointment on attaining majority by the plaintiff and proceeded on that basis and misconstrued the policy/guidelines. Mr. Shah also submitted that such appointment on compassionate ground has not been approved by the courts and it is well-settled that the Hon'ble Apex Court has also disapproved such appointments made even if there is some policy made by the government or the public body. 6. In support of his contention learned Government Pleader Mr. Shah referred to and relied upon the judgments of the Hon'ble Apex Court in the case of State if J&K and ors. v. Sajad Ahmed Mir reported in (2006) 5 SCC 766. He has also relied upon the judgment in the case of Haryana State Electricity Board v. Naresh Tanwar and anr., reported in (1996) 8 SCC 23. It was strenuously submitted by him that the Hon'ble Apex Court in these judgments has considered and deprecated such appointments on compassionate ground when the dependents, on attaining majority after 12 or 13 years, have lodged claim and the appointment has been made. Mr. Shah has also submitted that in the facts of the case before the Hon'ble Apex Court, there was no time-limit prescribed for making such claim for compassionate appointment and yet the Hon'ble Apex Court has disapproved the appointment made pursuant to the order passed by the High Court at the belated stage. Mr. Shah submitted that in the present case the policy/guidelines have been framed by the Government and, therefore, if at all any claim for compassionate appointment can be made, it can be SA/118/2005 8/17 JUDGMENT subject to the fulfillment of the conditions prescribed therein and as the respondent-original plaintiff was not covered by them after the period of 5 years, and in fact it was about 10 years after occurrence of death of the deceased employee, and also the fact that the application was not made as prescribed within the stipulated period, the courts below ought to have considered this aspect and instead misinterpreted the guidelines and, therefore, in light of the judgments of the ratio of the Hon'ble Apex Court, the appeal may be allowed. 7. Learned advocate Mr. Paul for the respondent- original plaintiff submitted that the appellant- original defendant has not led any evidence. He referred to the judgment of the trial court and pointedly referred to the observations in para 8 of the judgment of the trial court. Further, it was submitted that once the defendant State has not challenged the version of the plaintiff, the trial court had no alternative but to accept the claim and allow the suit. It was submitted that the evidence of the plaintiff before both the trial court and the lower Appellate Court has remained unchallenged and, therefore, has rightly observed that the claim for compassionate appointment was rejected only on the ground that the plaintiff had not made an application within the prescribed time and it was delayed. Learned advocate Mr. Paul submitted that the plaintiff attained the age of majority on 21.5.1995 and he ought to have made an application within 6 months after attaining majority, but he made the application SA/118/2005 9/17 JUDGMENT late and that was the only ground for which the application was rejected. Learned advocate Mr. Paul, therefore, submitted that if the government has framed guidelines as a policy or social measure, then the claim should not have been rejected only on such a ground. Learned advocate Mr. Paul submitted that in such benevolent policy a liberal view is required to be taken as directed by the Hon'ble Apex Court in its judgment reported in the case of Collector, Land Acquisition, Anantnag and anr. v. Mst. Katiji and ors., reported in 1987 SC 1353 and submitted that delay cannot defeat the cause of justice. 8. In light of these rival submissions, it is required to be appreciated whether the present appeal for consideration of the question of law posed deserves to be allowed. The undisputed facts are that the deceased father of the respondent-plaintiff died on 30.6.1985 and the respondent-plaintiff was aged about 8 years at that time. Therefore, he attained the age of majority on 21.5.1995, that is, after 10 years. Further, the claim for the compassionate appointment has been made pursuant to the policy/guidelines of the government dated 12.5.1977 and 16.12.1991. Therefore, if the claim is made pursuant to such guidelines or the policy, as rightly contended by the learned Government Pleader, it has to fulfill the required criteria or parameters. Though the courts below have focused only on the aspect of delay, it has not considered the most relevant criteria provided in para 9 of the guidelines dated 12.5.1977, which provide as under: SA/118/2005 10/17 JUDGMENT “(9) There should not be an unduly long time between the death of the Government servant and the compassionate appointment. Such compassionate appointment will be permissible within a period of five years after the occurrence of the death of the Government servant. However, in exceptional cases e.g. Government servant dying leaving behind illiterate widow and minor children none of whom can be offered employment, the period of five years can be relaxed with General Administration Department's prior concurrence.” 9. Therefore, it is very evident that it has been made clear that there should not be any unduly long period between death of the government servant and the compassionate appointment. Such compassionate appointment will be permissible within the period of 5 years after occurrence of the death of the government servant. Further, a rider has been provided that if the children are minor then period of 5 years can be relaxed with the concurrence of the General Administration Department. Therefore, again, it is an exception to the general policy or guidelines which may be considered in a given case. This period of 5 years has been further reduced in subsequent guidelines issued dated 16.12.1991. Therefore, in the facts of the present case, the claim made after almost 10 years would not be sustainable in light of this policy/guideline dated 12.5.1977 or 16.12.1991. Further, there is a criteria with regard to the income which has been provided in condition/clause (5) of the guideline dated 12.5.1977 providing that the family should be in indigent circumstances and for SA/118/2005 11/17 JUDGMENT ascertaining such circumstances the amount of monthly income of the family from all sources should not be more than Rs. 400. Further, it has also been provided in clause (a) to (e) as to how the income should be considered. The deceased father of the plaintiff, who had expired, would have been entitled to family pension also, which aspect has not been considered by the lower courts. Moreover, admittedly, even the application has been made by the respondent-original plaintiff after the period prescribed even as per these guidelines dated 12.5.1977 & 16.12.1991. In the guidelines dated 16.12.1991 it has also been specifically stated that if the children are minor, then if the dependent makes an application within a period of 6 months on attaining majority, it may be considered with concurrence of General Administration Dept. Therefore, this further relaxation is by way of an exception to the discretion of the Government and it does not confer any right. Therefore, the courts below have failed to appreciate the guidelines and misconstrued the guidelines focusing only on the aspect of delay in making an application for compassionate appointment. 10. Moreover, another aspect which requires to be focused is that such guidelines/policies are framed by the government or public bodies as and by way of social measure to provide immediate relief to the dependents of the distressed family of the deceased government employee. However, to be eligible for claiming appointment on compassionate ground on the basis of such policy or guidelines, the criteria or SA/118/2005 12/17 JUDGMENT parameters fixed in the guidelines or policy also are required to be fulfilled and only if such dependent is covered, then such a claim for compassionate appointment can be considered. There is no quarrel with the aspect that there has to be a human approach to such issues, but at the same time, considering the claim of such dependent on humanitarian ground and the hardship, the government has come out with such a policy/guidelines to provide relief which is again subject to fulfillment of the criteria or conditions. The government or public bodies has framed such guidelines only to extend some relief and if the dependent of the deceased employee is not covered, it cannot be stretched beyond a point as, otherwise, there would be no norms. As a matter of fact, the Hon'ble Apex Court has considered all these aspects and has made the observations and not approved the appointment on compassionate ground. 11. The Hon'ble Apex Court in the case of State of J&K & ors. v. Sajad Ahmed Mir (supra), considering this very aspect of compassionate appointment and delay and laches in applying for such appointment, has made the relevant observations. In this case before the Hon'ble Apex Court, an application for compassionate appointment was made within 4½ years after the death of the father, whereas in the present case, application is made after 10 years. The Hon'ble Apex Court has, in this judgment, deliberated all these aspects considering the claim of the dependent of the family and also the policy as well as the constitutional obligation under Articles 14 & 16, SA/118/2005 13/17 JUDGMENT referring to the earlier judgment in the case of State of Haryana v. Rani Devi (1996) 5 SCC 308 (:AIR 1996 SC 2445), and has observed that, “the claim of the applicant for appointment on compassionate ground is based on the premise 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. However, such claim is considered reasonable as also allowable on the basis of sudden crisis occurring in the family of the employee who had served the State and died while in service. That is why it is necessary for the authorities to frame rules, regulations or to issue such administrative instructions which can stand the test of Articles 14 and 16. Appointment on compassionate ground cannot be claimed as a matter of right.” The Hon'ble Apex Court, referring to the decision in the case of Umesh Kumar Nagpal v. State of Haryana, (1994) 4 SCC 138, further observed that, “public service appointment should be made strictly on the basis of open invitation of applications and on merits. The appointment on compassionate ground cannot be a source of recruitment. It is merely an exception to the requirement of law keeping in view the fact of the death of the 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. Such appointments on compassionate ground, therefore, 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. This favourable treatment to the dependent of the deceased employee must have clear nexus with the object sought to be achieved thereby i.e. relief against SA/118/2005 14/17 JUDGMENT destitution. At the same time, however, it should not be forgotten that as against the destitute family of the deceased, there are millions and millions of other families which are equally, if not more, destitute. The exception to the rule made in favour of the family of the deceased employee is in consideration of the services rendered by him and the legitimate expectation, and the change in the status and affairs of the family engendered by the erstwhile employment, which are suddenly upturned.” 12. Further, as pointed out by learned Government Pleader Mr. Shah, relying upon the judgment of the Hon'ble Apex Court in the case of Haryana State Electricity Board v. Naresh Tanwar & anr. (supra), even though there was no time-limit prescribed for making a claim for compassionate appointment and on attaining majority after 12 or 13 years, when the appointment was claimed and it was given pursuant to the order passed by the High Court, the Hon'ble Apex Court has disapproved the same and referring to the judgment in the case of Umesh Kumar Nagpal (supra), the Hon'ble Apex Court has observed, focusing on this very aspect considering even the difficulties faced by the family of the deceased, “as a rule, appointments in the public services should be made strictly on the basis of open invitation of application and merit. No other mode of appointment nor any other consideration is permissible. Neither the Governments nor the public authorities are at liberty to follow any other procedure or relax the qualifications laid down by the rules for the post. However, to this general rule which is to be followed strictly in every case, there are some exceptions carved out in the interests of justice and to meet certain contingencies. One SA/118/2005 15/17 JUDGMENT such exception is in favour of the dependents of an employee dying in harness and leaving his family in penury and without any means of livelihood. In such cases, out of pure humanitarian consideration taking into consideration the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made in the rules to provide gainful employment to one of the dependents of the deceased who may be eligible for such employment. The whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post much less a post for post held by the deceased. What is further, mere death of an employee in harness does not entitle his family to such source of livelihood. The Government or the public authority concerned has to examine the financial condition of the family of the deceased, and it is only if it is satisfied, that but for the provision of employment, the family will not be able to meet the crisis that a job is to be offered to the eligible member of the family. The posts in Classes III and IV are the lowest posts in non-manual and manual categories and hence they alone can be offered on compassionate grounds, the object being to relieve the family of the financial destitution and to help it get over the emergency.” Further, it has been quoted by the Hon'ble Apex Court, referring to the earlier judgment in the case of Umesh Kumar Nagpal (supra), “For these very reasons, the compassionate employment cannot be granted after a lapse of a reasonable period which must be specified in the rules. The consideration for such employment is not a vested right which can be exercised at any time in future. The object being to enable the family to get over the financial crisis which it faces at the time of the death of the sole breadwinner, the compassionate employment cannot be claimed and offered whatever the lapse of time SA/118/2005 16/17 JUDGMENT and after the crisis is over.” 13. Therefore, in light of these clear observations and also in light of the discussion regarding the criteria of the guidelines having not been fulfilled, in the opinion of this Court, both the courts below have erred in interpreting and construing the guidelines dated 12.5.1977 and 16.12.1991. Therefore, the present appeal deserves to be allowed on the