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SCA/544319/1994 2/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 5443 of 1994
For
Approval and Signature:
HONOURABLE
MR.JUSTICE M.R. SHAH
=========================================================
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 ?
=========================================================
RAMJIBHAI
S PARMAR - Petitioner(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=========================================================
Appearance
:
MR
RC KAKKAD for
Petitioner(s) : 1,
MR SHIVANG SHUKLA ASST.GOVERNMENT PLEADER for
Respondent(s) : 1 -
2.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 23/07/2009
ORAL
JUDGMENT
By
way of this petition under Article 226 of the Constitution of India
the petitioner has prayed for an appropriate writ, order or
direction quashing and setting aside the action of the respondents
of denying the petitioner compassionate appointment as Junior Clerk.
At
the outset, it is required to be noted that the father of the
petitioner was serving as a workcharged labourer died in the year
1991 and the question of granting compassionate appointment to the
petitioner as a Junior Clerk is posed for consideration of this
Court in the year 2009 i.e. after a period of 18 years.
Identical
question came to be considered by this Court in Special Civil
Application Nos. 1678/1997 and 1903/2005 and this Court has
relied upon the decisions of the Hon’ble Supreme Court in the case
of STATE OF J& K ORS Vs. SAJAD AHMED MIR reported in
(2006) 5 SCC 766 and in the case of NATIONAL HYDROELICTRIC
POWER CORPORATION AND ANR Vs. NANAK CHAND AND ANR reported in
2004 AIR SCW 6339 rejecting the applications, which were
filed belatedly.
In
the decision of NATIONAL HYDROELICTRIC POWER CORPORATION (Supra)
the Hon’ble Supreme Court has observed that …… it is to be seen
that the appointment on compassionate ground is not a source of
recruitment, but merely an exception to the requirement regarding
appointments being made on open invitation of application on merits.
Basic intention is that on the death of the employee concerned,
his family is not deprived of means of livelihood. The object is to
enable the family to get over sudden financial crises .
In
the decision of SAJAD AHMED MIR (Supra) it is observed that
the compassionate appointment is exception to the general rule and
normally, an employment in the Government or other public sectors
should be open to all eligible candidates who can come forward to
apply and compete with each other. It is in consonance with Article
14 of the Constitution. On the basis of competitive merits, an
appointment should be made to public office. It is also further
observed by the Hon’ble Supreme Court that this general rule should
not be departed from except where compelling circumstances demand,
such as, death of the sole breadwinner and livelihood of the family
suffering because of the setback. It is also further observed by the
Hon’ble Supreme Court that once it is proved that inspite of the
death of the breadwinner, the family survived and substantial period
is over, there is no necessity to say goodbye to the normal
rule of appointment and to show favour to one at the cost of the
interests of several others ignoring the mandate of Article 14. In
the case before the Hon’ble Supreme Court, the learned Single Judge
dismissed the petition on the ground of delay and laches. The
Division Bench set aside the said order and passed an order of
appointment on compassionate ground. The Hon’ble Supreme Court set
aside the order passed by the Division Bench and has observed as
above.
Considering
the decision of the Hon’ble Supreme Court in case of SAJAD AHMED
MIR (Supra) and the facts of the present case that more than 12
years have been passed after the death of the deceased employee and
the family is surviving for all these 18 years, as observed by the
Hon’ble Supreme Court, there is no necessity to say goodbye to
the normal rule of appointment and to show favour to petitioner at
the cost of the interests of several others ignoring the mandate of
Article 14. Even to direct the respondents to appoint the petitioner
on compassionate ground today i.e. after a period of 18 years on the
death of the employee would be against the object and purpose of
compassionate appointment. Under the circumstances, no direction
can be issued directing the respondents to appoint the petitioner on
compassionate ground after 18 years of the death of the deceased
employee.
Even
otherwise, considering the fact that the father of the petitioner
was serving as a workcharged labourer, the scheme for compassionate
appointment will not be applicable to the employees who was serving
as workcharged employee.
The
contention on behalf of the petitioner that other employees who were
sering as workcharged, on their death compassionate appointment are
given, is concerned admittedly the scheme for compassionate
appointment would not be applicable to the workcharged employee.
Merely because some other persons have been granted benefits
illegally and/or wrongly, the petitioner cannot claim similar
benefit which is not in accordance with law, there cannot be any
negative discrimination.
In
view of the above, the present Special Civil Application deserves to
be dismissed and is dismissed accordingly. Rule is discharged.
Interim relief granted earlier, if any stands vacated forthwith.
[M.R.SHAH,
J.]
Rafii
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