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LPA/618/2010 5/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 618 of 2010
In
SPECIAL
CIVIL APPLICATION No. 11600 of 2008
For
Approval and Signature:
HONOURABLE
MR.JUSTICE V. M. SAHAI
Sd/-
HONOURABLE
MR.JUSTICE G.B.SHAH
Sd/-
=========================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
NO
2
To
be referred to the Reporter or not ?
NO
3
Whether
their Lordships wish to see the fair copy of the judgment ?
NO
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 ?
NO
5
Whether
it is to be circulated to the civil judge ?
NO
=========================================
CHETANSINH
GHANUBHA JADEJA
Versus
CHAIRMAN
/ MANAGING DIRECTOR, DENA BANK HEAD OFFICE AND OTHERS
=========================================Appearance
:
MR PH
PATHAK for
the Appellant
MR.VARUN K.PATEL for the
Respondents
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE V. M. SAHAI
and
HONOURABLE
MR.JUSTICE G.B.SHAH
Date
: 05/07/2011
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE V. M. SAHAI)
1. We
have heard learned counsel Mr. P.H. Pathak for the appellant and Mr.
Varun Patel for the respondents.
2. Present
Letters Patent Appeal has been filed challenging the order dated
29.1.2009 passed by learned Single Judge in Special Civil Application
No.11600 of 2008, whereby the learned Single Judge has dismissed the
petition filed by the appellant.
3. Father
of the appellant died in harness on 7.9.2002. The appellant made
application for compassionate appointment on 1.10.2002, which was
received by the respondents on 11.3.2003. The application was
forwarded by the local office to the Regional office on 12.3.2003.
4. The
Government of India by its communication dated 14.2.2002 directed the
respondent Bank not to recruit any person in subordinate and clerical
cadre under any circumstance for a period of 5 years. Therefore,
there was a ban imposed by the Government of India on appointment in
the respondent Bank.
5. In
December 2003, the Chairman/Managing Director of the Bank has
approved 57 cases for appointing dependents of deceased employees on
compassionate ground in clerical and subordinate cadre and sought
approval of the Government of India for making these appointments as
a ‘special case’. Permission was granted by the Government of India
and accordingly, the said 57 persons, who were dependents of deceased
employees who died in harness between March 1998 and November 2003,
were appointed.
6. The
grievance of the petitioner is that his father had died in the year
2002, therefore his case was required to be considered for
appointment on compassionate ground. According to the respondents,
the application was not made by the petitioner along with required
full papers.
7. The
learned counsel for the respondents urged that there were various
dependents of deceased employees from March 1998 till 2005, in all
72 cases, who have not yet got appointment on compassionate ground
for the reason that their applications were not made along with
required full papers.
8. In para
4(iii)(c) and (iv) of the Supplementary Affidavit filed on behalf of
the respondents, it had been stated that the deceased employee was an
Ex-Army personnel and family of the deceased employee is receiving
monthly family pension of Rs.5375/- from the Army since February 2011
and the Bank is also paying to the widow of the deceased the family
pension to the tune of Rs.3,000/- per month with effect from
27.11.2009. Therefore, the financial condition of the family of the
appellant is sound.
9. Learned
counsel Mr.Pathak for the appellant has urged that comparative chart
of all 57 persons should be placed before this Court for the purpose
of showing that what family pension their families were receiving
when they were granted compassionate appointment and their financial
condition should be compared with the financial condition of the
appellant. The other argument of the learned counsel for the
appellant is that the ground on which the compassionate appointment
was refused to the appellant was only that his application was time
barred. The next argument is that the case of the appellant is
similar to Smt. Gitaben J. Trivedi. Mr. Pathak further urged that the
details have not been provided by the respondents that when the
application of the appellant was received by the respondents. He
further urged that the appellant had been arbitrarily discriminated
when in the similar set of facts, four persons have been appointed on
compassionate ground. He lastly urged that the family pension and
post death benefits received by family cannot be considered while
considering the claim for compassionate appointment. He has placed
reliance on a decision of the Hon’ble Apex Court in the case of
Balbir Kaur and another Vs. Steel Authority of India Limited
and others, reported in
(2000)6 SCC 493.
10. The
father of the petitioner died in the year 2002 and we are in 2011.
More than 8 years have passed. The family has survived. The financial
condition of the family of the appellant is now good as the family of
the appellant is receiving more than Rs.8000/- per month towards
family pension from Army and the Bank. Apart from family pension, the
family must have received post-death benefits also. Compassionate
appointments are provided to meet with immediate exigency of the
family of the deceased. It is not a source of recruitment. The
Hon’ble Apex Court has laid down a law in number of cases,
particularly in the case of State Bank of India and others Vs.
Jaspal Kaur, (2007) 9 SCC 571,
that-
“23. Hence
a major criterion while appointing a person on compassionate grounds
should be the financial condition of the family the deceased person
left behind. Unless the financial condition is entirely penurious,
such appointments cannot be made.”
The Hon’ble
Apex Court in the case of State Bank of India and Another Vs.
Rajkumar, (2010)11 SCC 661, vide para 8 and 9,
held as under:-
“8. It
is now well settled that appointment on compassionate grounds is not
a source of recruitment. On the other hand it is an exception to the
general rule that recruitment to public services should be on the
basis of merit, by an open invitation providing equal opportunity to
all eligible persons to participate in the selection process. The
dependents of employees, who die in harness, do not have any special
claim or right to employment, except by way of the concession that
may be extended by the employer under the rules of by a separate
scheme, to enable the family of the deceased to get over the sudden
financial crisis. The claim for compassionate appointment is
therefore traceable only to the scheme framed by the employer for
such employment and there is no right whatsoever outside such scheme.
An appointment under the scheme can be made only if the scheme is in
force and not after it is abolished/withdrawn. It follows therefore
that when a scheme is abolished, any pending application seeking
appointment under the scheme will also cease to exist, unless saved.
The mere fact that an application was made when the scheme was in
force, will not by itself create a right in favour of the applicant.
9. Normally,
the three basic requirements to claim appointment under any scheme
for compassionate appointment are (i) an application by a dependent
family member of the deceased employee; (ii) fulfillment of the
eligibility criteria prescribed under the scheme, for compassionate
appointment; and (iii) availability of posts, for making such
appointment. If a scheme provides for automatic appointment to a
specified family member, on the death of any employee, without any of
the aforesaid requirements, it can be said that the scheme creates a
right in favour of the family member for appointment on the date of
death of the employee. In such an event the Scheme in force at the
time of death would apply.”
11. Since
the financial condition of the family of the appellant is good and we
are of the considered opinion that the appellant is not entitled for
appointment on compassionate ground, we are not required to consider
the other arguments raised by the learned counsel for the appellant.
12. For the
aforesaid reasons, we do not find any illegality in the order dated
29.1.2009 passed by learned Single Judge in Special Civil Application
No.11600 of 2008. The Appeal fails and is dismissed.
Sd/-
(V.M.
SAHAI, J.)
Sd/-
(G.B.
SHAH, J.)
omkar
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