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SA/154/2009 9/ 9 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SECOND
APPEAL No. 154 of 2009
With
CIVIL
APPLICATION No. 5830 of 2009
In
SECOND
APPEAL No. 154 of 2009
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 ?
=========================================
GUJARAT
STATE ROAD TRANSPORT CORPORATION & 1 - Appellant(s)
Versus
HITESHGAR
GULABGAR - Defendant(s)
=========================================
Appearance :
MS
SEJAL K MANDAVIA for
Appellant(s) : 1 - 2.
MR CHINTAN S POPAT for Respondent(s) :
1,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 03/03/2010
ORAL
JUDGMENT
1. With
the consent of the learned advocates appearing on behalf of the
respective parties and in the facts and circumstances of the case,
the present Second Appeal itself is taken up for final hearing today.
2. At
the time of admission, the learned Single Judge framed the following
substantial questions of law to be determined by this Court;
(i) Whether
in the facts and circumstances of the case, the Courts below have
jurisdiction to issue direction to the appellant to create a post and
give appointment to the respondent?
(ii) Whether
in the facts and circumstances of the case, the Courts below can pass
order of compassionate appointment in contravention of the policy
framed by the appellant-Corporation?
3. The
present Second Appeal has been preferred by the appellants-original
defendants-Gujarat State Road Transport Corporation challenging the
impugned judgement and order passed by the learned Principal
District Judge, Porbandar dated 10/02/2009 in Regular Civil Appeal
No. 74/2005 in dismissing the same and confirming the judgement and
decree passed by the learned Additional Senior Civil Judge, Porbandar
dated 06/10/2005 in Regular Civil Suit No. 618/1995 by which both the
Courts below have directed the appellants-original defendants to
appoint the respondent-original plaintiff on compassionate ground,
even by creating a post, on the death of his father, who was serving
with appellant no. 1-Gujarat State Road Transport Corporation as
driver, who died on 16/05/1981 while in service.
4. The
facts leading to the present Second Appeal in nutshell are as under;
4.1. The
father of the respondent-original plaintiff was serving as permanent
driver in Porbandar S.T. Depo, who died while in service on
16/05/1981. At the time when the deceased employee died, the
respondent-original plaintiff was minor i.e. aged five years. The
respondent-original plaintiff instituted Regular Civil Suit No.
618/1995 in the Court of learned Additional Senior Civil Judge,
Porbandar for declaration that, on death of his father, the
respondent-original plaintiff is entitled to appointment on
compassionate ground and for declaration that the action of the
appellants-original defendants in not appointing the
respondent-original plaintiff on compassionate ground, on the death
of his father, is illegal and unjust. The learned trial Court vide
judgement and decree dated 06/10/2005 decreed the said suit and
declared that on death of the father of the respondent-original
plaintiff, respondent-original plaintiff is entitled to appointment
on compassionate ground. Being aggrieved and dissatisfied with the
judgement and decree passed by the learned Additional Senior Civil
Judge, Porbandar dated 06/10/2005 in Regular Civil Suit No. 618/1995,
the appellants-original defendants preferred Regular Civil Appeal No.
74/2005 before the learned Principal District Judge, Porbandar and
the learned appellate Court not only dismissed the said appeal
confirming the judgement and decree passed by the learned trial Court
but also passed further order that if there is no post available, in
that case, supernumerary post be created considering the educational
qualification of the respondent-original plaintiff and to appoint
the respondent-original plaintiff. Being aggrieved and dissatisfied
with the judgement and order passed by the learned Principal District
Judge, Porbandar dated 10/02/2009 in Regular Civil Appeal No.
74/2005, the appellants-original defendants have preferred the
present Second Appeal.
5. Ms
Sejal Mandavia, learned advocate appearing on behalf of the
appellants-original defendants has vehemently submitted that the
judgement and order passed by the both the Courts below directing the
appellants-original defendants to appoint the respondent-original
plaintiff on compassionate ground is absolutely illegal and against
the scheme of the appellant- Gujarat State Road Transport Corporation
as well as against the decisions of the Hon’ble Supreme Court as
well as this Court. It is further submitted that the learned
appellate Court has passed an order to create supernumerary post to
appoint the respondent-original plaintiff on compassionate ground,
which is absolutely without jurisdiction and, therefore, it is
requested to quash and set aside the impugned judgement and orders
and to allow the present Second Appeal. It is submitted that as such
the father of the respondent-original plaintiff died in the year 1981
and the suit came to be filed in the year 1995 i.e. after a period of
14 years from the date of death of the deceased employee and also
after five years of attaining the age of majority by the
respondent-original plaintiff, and, therefore, both the Courts below
have materially erred in directing the appellants-original defendants
to appoint the respondent-original plaintiff on compassionate ground.
6. Ms.
Sejal Mandavia, learned advocate appearing on behalf of the
appellants-original defendants has heavily 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 as
well as in the case of DHARMENDRASINH VANRAJSINH JADEJA Vs. STATE
OF GUJARAT & ORS reported in 2009 (1) GLR 434 and
the decision of this Court dated 29/12/2009 in Special Civil
Application No. 298/2009. By making the above submissions and
relying upon the above decisions, it is requested to allow the
present Second Appeal.
7. The
present Second Appeal is opposed by Shri Popat, learned advocate
appearing on behalf of the respondent-original plaintiff. It is
submitted that at the relevant time when the father of the
respondent-original plaintiff died in the year 1981, the
respondent-original plaintiff was minor, aged 5 years only, and,
therefore, after the respondent-original plaintiff attained the age
of majority he submitted an application for appointment on
compassionate ground, which was wrongly rejected and, therefore, both
the Courts below have rightly passed the order directing the
appellants-original defendants to appoint the respondent-original
plaintiff on compassionate ground even by creating supernumerary
post. No other submissions have been made. By making the above
submissions, it is requested to dismiss the present Second Appeal.
8. Heard
the learned advocates appearing on behalf of the respective parties
at length. It is not in dispute that the father of the
respondent-original plaintiff died in the year 1981 and as per the
policy of the appellant no. 1-Gujarat State Road Transport
Corporation, if at the time of death of an employee, dependent is
minor and/or attains the age of majority within 10 years, then and
then only the application can be considered. It is to be noted that
in the present case the suit came to be instituted by the
respondent-original plaintiff in the year 1995 i.e. after a period of
14 years from the death of the deceased employee. It is also
required to be noted that the respondent-original plaintiff attained
the age of majority in the year 1993-94 and after a period of two
years of attaining the age of majority the suit came to be filed. It
is also required to be noted that when the learned trial Court
decreed the suit, 24 years have passed after the death of the
deceased employee and, therefore, when the order came to be passed by
the learned trial Court to appoint the respondent-original plaintiff
on compassionate ground it was after a period of 24 years from the
death of deceased employee.
9. In
the aforesaid background and in the facts and circumstances of the
case, the present Second Appeal is required to be considered and
appointment of the respondent-original plaintiff on compassionate
ground is not to be considered.
10. As
observed by the Hon’ble Supreme Court in case of Sajjad
Ahmed Mir (supra),
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 in spite 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.
11. Identical
question came to be considered by this Court in Special Civil
Application No.1678 of 1997 and Special Civil Application No.1903 of
2005 and this Court dismissed the said Special Civil Applications
relying upon the decision of the Hon’ble Supreme Court in the case of
State of J&K
and Others vs. Sajjad Ahmed Mir reported in (2006) 5 SCC 766 and
in the case of National
Hydroelectric Power corporation and Another vs. Nanak Chand and
Another reported in 2004 AIR SCW 6339 rejecting
the applications which were filed belatedly.
12. In
the case of National Hydroelectric Power corporation and Another
(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.
13. Considering
the aforesaid decisions of the Hon’ble Supreme Court in the case of
Sajjad Ahmed Mir
(supra) and in the case of
National Hydroelectric Power corporation and Another (supra)
and the facts of the present case that more than 20 years have been
passed after the death of the deceased employee and even at the time
when the learned trial court passed the decree more than twenty seven
years had been passed and the family survived for all these years, as
observed by the Hon’ble Supreme Court, there is no necessity to say
good bye 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. Under the circumstances, the judgment and
decree passed by the learned trial court, confirmed by the appellate
court is just contrary to the aforesaid two decisions of the Hon’ble
Supreme Court as well as the object and purpose of appointment on
compassionate ground which deserves to be quashed and set aside.
14. In
view of the above and for the reasons stated hereinabove, the present
Second Appeal succeeds. The impugned judgement and orders passed by
the learned Additional Senior Civil Judge, Porbandar dated 06/10/2005
in Regular Civil Suit No. 618/1995 and learned Principal District
Judge, Porbandar dated 10/02/2009 in Regular Civil Appeal No. 74/2005
are hereby quashed and set aside. The present Second Appeal is
allowed to the aforesaid extent. No cost.
CIVIL
APPLICATION No. 5830/2009
In
view of the order passed in Second Appeal, no order in the Civil
Application.
(M.R.
SHAH, J.)
siji
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