LPA/731/2008 1/16 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 731 of 2008 In SPECIAL CIVIL APPLICATION No. 27367 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE RAVI R.TRIPATHI HONOURABLE MR.JUSTICE K.M.THAKER ========================================================= 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 civil judge ? ========================================================= DHARMENDRASINH VANRAJSINH JADEJA - Appellant(s) Versus STATE OF GUJARAT & 2 - Respondent(s) ========================================================= Appearance : MR HASIT H JOSHI for Appellant(s) : 1, MS TANUJA KACHHI, ASST. GOVERNMENT PLEADER for Respondent(s) : 1 - 3. ========================================================= CORAM : HONOURABLE MR.JUSTICE RAVI R.TRIPATHI and HONOURABLE MR.JUSTICE K.M.THAKER Date : 08/09/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE RAVI R.TRIPATHI) 1. Present Letters Patent Appeal is filed against LPA/731/2008 2/16 JUDGMENT an order dated 30th April, 2008 passed by the learned Single Judge. The order reads as under:- “The petitioner's mother was offered appointment on compassionate ground which she did not accept. The son – petitioner was minor at the relevant time. In view of the fact that offered appointment was denied, no relief can be granted to the petitioner. Hence this petition is dismissed.” 2. The matter of compassionate appointment has always remained a matter of controversy. There are equally convincing rival contentions on the issue. The Government by issuing guidelines from time to time governed the matter of grant of compassionate appointment. Even in the present case, along with an affidavit in reply filed by one Shri Piyush Patel, who has not set out his designation either in the opening paragraph or in the concluding paragraph, it is only from a rubber stamp affixed at the bottom of the affidavit that it could be learnt that he is a LPA/731/2008 3/16 JUDGMENT District Superintendent of Police of Jamnagar District, two Government policies are annexed. The first one is a Confidential Circular bearing No.BHARAT(Recruitment)–1087–BHAG(Part)–S–7-K and the other one is a Government Resolution dated 10th March, 2000 bearing No.BHARAT(Recruitment)-2197-K. 3. The object of the scheme of providing appointment to a dependent of a deceased government employee who dies in harness can be reasonably inferred to the effect that, the Government with a view to provide help to the family who has lost its bread earner offers an appointment to one of the member of the family on compassionate ground. This necessarily means that members of the family of the deceased government employee gets a right, arising from the aforesaid object. 4. In the present case, the father of the applicant died on 4th May, 1991 therefore, the policy enunciated by the aforesaid confidential circular dated 16th December, 1991 was applicable. LPA/731/2008 4/16 JUDGMENT Clause 3 of the said policy provides that for getting an appointment on the compassionate ground, any one from amongst the dependents of the deceased employee will have to apply within two years, after the sad demise. It is specifically mentioned in that clause that the present policy of '5 years' is brought to an end. It is then reiterated that any time limit prescribed in excess to 'two years' comes to an end. What follows is important and it is provided in Clause 3 that, 'it will be open for the Government to consider the case beyond the prescribed time of two years for granting necessary concession, more particularly, when the widow is an illiterate and the children are minor and it is not possible to give compassionate appointment to any member of the family of deceased. It is, also, provided that grant of such concession should be considered only with the approval of the General Administration Department. It is provided that an application by a dependent has to be made within 6 months from the date of attaining the age of majority. In the present case, after the father of the LPA/731/2008 5/16 JUDGMENT appellant – original petitioner expired on 4th May, 1991, the widow had applied for the compassionate appointment in the year 1992. The appellant has not annexed a copy of the said application but then that fact is borne out from the communication dated 30th July, 1992 at Annexure'C' which was sent by the Office of the District Superintendent of Police to the widow of the deceased - the mother of the appellant who was asked to furnish necessary details set out in the said communication. This communication dated 30th July, 1992, was replied by the mother of the appellant by letter dated 16th October, 1995 i.e. after lapse of more than 3 years. The learned advocate for the appellant contended that the department did not respond to the said letter dated 16th October, 1995. The appellant has produced a copy of communication dated 11th February, 1999 at Annexure'E'. This is from the Office of the District Superintendent of Police addressed to the mother of the appellant – original petitioner. There it is stated that in response to your application dated 28th January, 1999, it is to be LPA/731/2008 6/16 JUDGMENT informed that the date of birth of your son is 20th October, 1985 and therefore, he will complete 18 years of age on 20th October, 2003, that an application is to be given on completion of 18 years of age. 5. During the course of arguments, learned advocate for the appellant was asked as to whether he has a copy of application dated 28.1.99 which is referred to in the said communication. The learned advocate for the appellant did make available a copy of the same which is 'dated Nil'-1-1999. On perusing the contents of the said application, it can be inferred that the applicant was not interested in placing that application on the record of this court as the contents were not favourable to the applicant. It is stated in the application that, 'my husband had died while in service and thereafter, I had applied for getting compassionate appointment as peon but due to my family circumstances, I was not able to accept the same. I had made an application for giving compassionate appointment to my elder son – Shri Dharmendrasinh Jadeja (present appellant – original LPA/731/2008 7/16 JUDGMENT petitioner) on his attaining the age of majority.' It is also stated in the application that, 'I had given an application, which is 'filed,' that my son – Shri Dharmendrasinh Jadeja is not informed that on attaining the age of majority, he shall make an application; that taking into consideration my earlier application, my elder son – Shri Dharmendrasinh Jadeja be offered compassionate appointment according to his eligibility on his attaining the age of majority. The date of birth of my son is 20th October, 1985 and he is studying in 9th standard.' It is also requested in the said application that, 'taking into consideration the application, further proceedings be undertaken.' (emphasis supplied). 6. Along with affidavit in reply filed by Shri Piyush Patel – District Superintendent of Police, another Government policy regulating the appointment on compassionate ground is annexed. It is dated 10th March, 2000. The same is not required to be gone into as the facts of the present case are governed by the earlier one. LPA/731/2008 8/16 JUDGMENT 7. From the contents of letter dated 29th August, 2007, Annexure – F, it is clear that there is no coordination in the office of the District Superintendent of Police. Had there been necessary coordination, the present petition would not have been required to be filed. In communication dated 29th August, 2007, while rejecting the request of the appellant – original petitioner, it is stated that, 'the government employee expired on 4th May, 1991 and within 5 years of that date the widow of the deceased did not make any application. If she had made an application, her case could have been considered for appointment as Class IV either as Water Server – Hamal or Safaikamdar or 'Mess Servant.' This reason, set out in communication dated 29th August, 2007 is contrary to the record, because an application was made by the widow of the deceased employee – the mother of the appellant in 1992 and as that application was found to be lacking certain information, the mother of the appellant – original petitioner was asked to furnish the details by communication dated 30th July, 1992. This shows the LPA/731/2008 9/16 JUDGMENT application of mind of the authority to the application. This request of furnishing necessary details was not replied for more than three years. Later on the mother of the appellant – original petitioner was offered an appointment which was not accepted by her. This is borne out from a communication dated 2nd July, 1998, which is made available for perusal by the learned AGP, Ms. Kachhi. Letter dated 2nd July, 1998 is written by the mother of the appellant to the District Superintendent of Police wherein, it is stated that, 'on 17th June, 1997, the mother of the appellant – original petitioner had made an application for giving appointment as peon.' It is further stated in the said communication that, 'due to three daughters and two sons in my family, who are studying and whose entire responsibility I have to bear I am not able to accept the appointment as peon.' It is also stated that my family has no other income than the pension of my husband that instead of me, my elder son Dharmendrasinh Vanrajsinh (the appellant – original petitioner) be given appointment whose date of birth is 20.10.85 on his completing 17 years of age as per LPA/731/2008 10/16 JUDGMENT his eligibility, on any post. 8. The learned AGP has also made available a copy of communication dated 16th July, 1998 which is from the Office of the District Superintendent of Police to the Special Police Officer, Rajkot Division, a copy of which is endorsed to the mother of the appellant - original petitioner, stating that as by letter dated 2nd July, 1998, the mother of the appellant - original petitioner has shown her inability to accept the offer of appointment as peon, the chapter of compassionate appointment is closed. 9. Coming back to communication dated 29th August, 2007, Annexure – F, therein as ground No.2 it is stated that, 'the first child of the deceased is 'Harshaba' and her date of birth is 21st March, 1980, on 21st March, 1998 she was unmarried and studied upto 7th standard, no application was made within two years to get an appointment on compassionate ground. This ground when read with the first one shows – total non application of mind. In the first ground LPA/731/2008 11/16 JUDGMENT time limit mentioned is five years while in this it is mentioned to be two years. 10. In ground No.3 it is stated that, 'the dependent applicant – Dharmendrasinh Jadeja whose date of birth is 20th October, 1985 has applied after attaining the age of majority on 20th October, 2003. The said application is after 12 years of the death of the deceased and therefore, the object of the compassionate appointment to assist the family in difficult times is not fulfilled. This ground also reflect the non-coordination in the Office of the District Superintendent of Police. If the signatory – Shri Piyush Patel, Superintendent of Police, Jamnagar had taken little care to call for the entire file, he could have known that there was an offer made to the mother of the original petitioner for appointment on compassionate ground as peon, which was refused by her by letter dated 2nd July, 1998 and by letter dated 16th July, 1998, she was informed that the chapter is closed. Both these letters are taken on record. 11. Learned advocate Mr. Joshi relied upon a LPA/731/2008 12/16 JUDGMENT decision of Division Bench of this Court in the matter of GUJARAT MARITIME BOARD V/s. KANJI NATHA KARMATA reported in 2004(5) GHJ 441. The learned advocate empathetically relied upon paragraph 4 of the judgment, which reads as under :- “4. The contention that the family survived for all these years cannot be accepted. The survival of the family of a person whose eldest child was two months old at the time of death can be imagined in the context of death of sole bread earner of the family. It is not simple survival. It has to be the survival in its real sense. Passing of daysr or months and years is not survival as such. What else family could do when the eldest child in the family was only two months old. As soon as it attained the age of 18 yearsr or mother took initiative to seek appointment on compassionate ground. Therefore, it cannot be said that as the family survived during all these yearsr therefore, did not require appointment on compassionate ground. (BALBIR KAUR AND ANR. VERSUS SAIL & ORS., 2000 (4) SCALE 670). Therefore, such contention is rejected.” Learned advocate Mr. Joshi for the appellant LPA/731/2008 13/16 JUDGMENT submitted that in view of this judgment, ground No.3 set out in communication dated 29th August, 2007 requires to be quashed and set aside and the petitioner is required to be offered an appointment on compassionate ground. 12. Prima facie, the submission made by Mr. Joshi appears to be acceptable but the same cannot be accepted in view of the facts of this case. In the present case, the mother of the petitioner had made an application for compassionate appointment as early as in the year 1992, after the death of her husband in the year 1991. The department asked for the lacking information from the applicant – the mother of the petitioner, which were not supplied for long 3 years for which no reason is shown. Even then later on she was offered appointment for the post of peon which she declined. In such circumstances mother of the petitioner can be said to have lost her right to get an appointment on compassionate ground. The fact that the department offered an appointment to the mother of the petitioner on the LPA/731/2008 14/16 JUDGMENT post of peon in the year 1998, which was declined by the mother of the petitioner by letter dated 2nd July, 1998 and on that refusal, the department closed the chapter of compassionate appointment is clear from communication dated 16th July, 1998 from the Office of the District Superintendent of Police to the Special Police Officer, Rajkot Division. Hence, the ratio of the aforesaid decision will not be applicable to the facts of the present case. 13. Learned AGP vehemently submitted that in the present case, the petitioner has no right to pray for an appointment on compassionate ground. She submitted that the Hon'ble Apex Court while considering almost similar facts in the matter of JAGDISH PRASAD v/s. STATE OF BIHAR AND ANOTHER reported in (1996) 1 SCC 301 has held that, “It is contended for the appellant that when his father died in harness, the appellant was minor; the compassionate circumstances continue to subsist even till date and that, therefore, the court is required to examine whether the appointment should be made on compassionate grounds. We are afraid, we cannot accede to the contention. The very LPA/731/2008 15/16 JUDGMENT object of appointment of a dependent of the deceased employees who die in harness is to relieve unexpected immediate hardship and distress caused to the family by sudden demise of the earning member of the family. Since the death occurred way back in 1971, in which year the appellant was four years old, it cannot be said that he is entitled to be appointed after he attained majority long thereafter. In other words, if that contention is accepted, it amounts to another mode of recruitment of the dependent of a deceased government serving which cannot be encouraged, de hors the recruitment rules.” 14. In the result, the appeal fails. The same is dismissed. 15. A copy of this judgment and order be sent to the Director General of Police for issuing necessary instructions to all the District Superintendent of Police to have required coordination between different Branches of their office, before any application seeking compassionate appointment is replied. This direction is required to be issued LPA/731/2008 16/16 JUDGMENT because from communication dated 29th August, 2007 (Annexure – F) it is apparent that the communication was issued without any coordination in the Office of the District Superintendent of Police – Jamnagar. (RAVI R. TRIPATHI, J.) (K.M.THAKER, J.) kdc