Rashmiben Valjibhai Garchar & 3 vs State Of Gujarat & 4

1. By this note for speaking to minutes, it has been pointed that inadvertently in the order passed by this Court dated 11.04.2016 in Special Civil Application No.453 of 2016, there is no reference of the Supreme Court judgment which was relied upon in the case of Canara Bank And Another Versus M.Mahesh Kumar, reported in (2015) 7 SCC 412.

2. One paragraph my be added in the judgment as under:-

"The authorities while taking an appropriate decision shall take into

consideration the decision of the Supreme Court in the case of Canara Bank And Another Versus M.Mahesh Kumar, reported in (2015) 7 SCC 412."

3. Let such addition may be effected in the main order and fresh writ of the order is issued.

Accordingly, note for speaking to minutes stands disposed of. Direct service is permitted.

(J.B.PARDIWALA, J.) Girish Page 2 of 2 HC-NIC Page 2 of 11 Created On Fri May 06 02:42:17 IST 2016 2 of 11 C/SCA/453/2016 ORDER

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 453 of 2016 ========================================================== RASHMIBEN VALJIBHAI GARCHAR & 3....Petitioner(s) Versus STATE OF GUJARAT & 4....Respondent(s) ========================================================== Appearance:

MR NK MAJMUDAR, ADVOCATE for the Petitioner(s) No. 1 - 4 MR. GOUTAM, ASST. GOVERNMENT PLEADER for the Respondent(s) No. 1

-5 ========================================================== CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 11/04/2016 ORAL ORDER

1. By this writ application under Article 226 of the Constitution of India, the petitioners, serving with the Ayurvedic College at Bhavnagar, have prayed for the following reliefs;

B) Be pleased to issue appropriate writ, order or direction and be pleased to direct the concerned respondent authorities to consider the request of the petitioners for giving regular appointment in regular pay scale considering the policy which remained in force at the time of sad demise of husband of petitioner no. 1 and further of petitioner nos. 2 to 4 as well as on the date of applications preferred by the petitioners or recommendations made by the respondent authorities and respondent authorities be further directed to pass appropriate orders and consequential benefits may kindly be ordered to be paid to the petitioners with 12% Page 1 of 9 HC-NIC Page 3 of 11 Created On Fri May 06 02:42:17 IST 2016 3 of 11 C/SCA/453/2016 ORDER interest;

C) Be pleased to issue appropriate writ, order or directions and be pleased to hold that in view of Circular dated 22.08.2014, the petitioners would be entitled to seek modification in the appointment orders as the respondent authorities be directed to give regular appointment in regular pay scale to the petitioners right from the date of initial appointments, considering the order dated 26.12.2013 passed in case of Shri Nilesh Muljibhai Patel;

D) Be pleased to issue appropriate writ, order or direction, directing the respondent authorities to consider the representations of the petitioners and/or the petitioners may be permitted to make Additional Representation to the concerned authorities and the authorities be directed to consider the same in accordance with law by directing the respondent authorities to decide the same after giving reasonable opportunity of hearing to the petitioners and reasoned order may be ordered to be passed within stipulated time;

E) Be pleased to grant interim relief and by way of interim order, be pleased to direct the respondent authorities to consider and decide the representations made by the petitioners and/or the petitioners be permitted to make Additional Representation and the authorities be directed to consider the same in accordance with law by giving reasonable opportunity of hearing to the petitioners and reasoned order may be ordered to be passed within stipulated time, pending admission, hearing and final disposal of the present petition (E) Be pleased to pass such orders as thought fit in the interest of justice."

2. The facts in brief are as under;

2.1 All the writ applicants were appointed on the compassionate grounds in the year 2008. At the time of their appointments, the Government Resolution dated 15th June, Page 2 of 9 HC-NIC Page 4 of 11 Created On Fri May 06 02:42:17 IST 2016 4 of 11 C/SCA/453/2016 ORDER 2004 was not in force. The Government Resolution dated 15th June, 2004 lays down a policy that the initial appointment with the State Government would be temporarily for a period of five years on the fixed remuneration. On completion of five years of service, they would be absorbed in the regular service and also be put in the regular pay scale. When the writ applicants applied with the concerned department for being appointed on the compassionate grounds, there was no policy of the State Government to initially appoint a person on the temporary basis for a period of five years on the fixed remuneration. By the time the actual appointment could be offered, the Government Resolution dated 15th June, 2004 came into force and, accordingly, all the writ applicants were appointed initially for a period of five years on the temporary basis. Their claim is that the first five years of service should be counted for the purpose of their seniority notionally.

3. Mr. N.K. Majmudar, the learned counsel appearing for the petitioners, pointed out that a detailed representation has been filed in this regard, but the same has not been considered till this date.

4. This writ application has been opposed by Mr. Goutam, the learned AGP appearing for the State-respondents. He has placed reliance on the following averments made in the affidavit-in-reply.

"7. It is submitted that even while considering the case of petitioners on their face value for the sake of presumption, the petitioners would be late in time to modify their appointment orders which they have never challenged but instead have duly accepted and functioned as on date in accordance of the service conditions laid therein. It is submitted that the Page 3 of 9 HC-NIC Page 5 of 11 Created On Fri May 06 02:42:17 IST 2016 5 of 11 C/SCA/453/2016 ORDER petitioners in the present petition are seeking prayers to modify their service conditions as laid down in their appointment orders dating from 2004-2008 respectively.

The petitioners would be delayed beyond reason to seek such prayers, since the petitioners are seeking to modify the conditions laid down in the appointment orders after a lapse of 8-11 years. Clearly therefore, the petitioners by now have functioned with the answering respondent for over 8-11 years. It is therefore submitted that the present challenge made in the captioned petition would be in that view of the matter, barred by delay and lathes. It is submitted that on such ground also the present petition needs to be dismissed in limine.

8. It is further submitted that the present petitioners have already concluded their probationary period of 5 years as per the conditions of their appointment orders and the same have been respectively regularized on their posts and are given regular pay scale in accordance with the rules and regulation governing their service. It is submitted that by this time the petitioners have been earning their regular pay since over 2-6 years. The petitioner to be now seeking a retrospective modification and availment of such regular pay scale from their initial date of appointment after on lapse of almost a decade would be unworthy and not deserving a writ remedy. It is submitted that this Hon'ble Court being the court of equity and justice may take into consideration the conduct of the petitioners who after having accepted their respective appointments and functioned on their respective post for about 8-11 years are perpetrating a volte face and are in substance challenging the service condition which the same had accepted long ago. This conduct of the petitioner must be held to be detrimental to their interest which they are attempting to avail by the present petition. It is therefore, submitted that the petitioner on account of their conduct as well cannot be considered to be deserving litigant more particularly for availing relief from this Hon'ble Court.

9. It is submitted that so far as the case relied upon the petitioner is concerned it would be evident that the said case has been decided in 2013 the petitioners who are now seeking the benefits of such order have come before this Hon'ble Court to take benefit of an order Page 4 of 9 HC-NIC Page 6 of 11 Created On Fri May 06 02:42:17 IST 2016 6 of 11 C/SCA/453/2016 ORDER passed in 2013 after a lapse of two years. It is submitted that even if it were to be considered that the said judgement of this Hon'ble Court date 06.09.2013 is the law of the land on account of the fact that it has attained finality, then also the effect of the said judgement would be prospective and cannot be retrospective as sought by the petitioners. Clearly the appointments of the petitioners are ranging from 2004 to 2008 and they have worked in accordance with the conditions of their appointment for 8-11 years. The coming in to effect of the said judgement (reliance of which is sought by the petitioners) cannot entitle the same to avail benefit of such judgement retrospective that to in light of the fact of the petitioners having accepted their condition of service and acted in accordance there to since over a decade. Even otherwise it is the settled legal position that merely because in a similar case a judgement is passed, that alone cannot be a factor weighing with a writ court, and that each case may have to be scrutinized on its own merits. A writ court may have to determine the rights sought before it and its entitlement qua the litigant individually and independently. In that light of the facts and circumstances as well it is urged that the case relied upon by the petitioners be disregarded for determining their entitlement to the rights which they presumed have been infracted on account of the alleged acts of the respondent authorities."

5. What is argued before me by the learned counsel appearing for the petitioners is supported by the judgment of this Court in the case of Nilesh Muljibhai Patel vs. State of Gujarat & Ors., Special Civil Application No.30154 of 2007, decided on 6th September, 2013. The learned Single Judge decided an identical issue, and observed in paragraphs- 8, 9, 10, 11 and 12 as under;

"8. Having heard the learned advocates for the parties and having perused the record of the Court, it appears that though the petitioner had made application for compassionate appointment only within one month after his father died on 13.11.1999, respondents did not accept such application vide communication dated Page 5 of 9 HC-NIC Page 7 of 11 Created On Fri May 06 02:42:17 IST 2016 7 of 11 C/SCA/453/2016 ORDER 8.8.2000 on the ground that the application of the petitioner was beyond the prescribed time limit and the family income of the petitioner was exceeding the income limit as fixed by the Government for compassionate appointment. Such action of the State Government was the subject-matter of challenge before this Court in Special Civil application No. 7056 of 2001.

The Court found that the application was within time limit and the family income of the petitioner was also not exceeding the income limit fixed in the policy of Government. The Court, therefore, vide order dated 10.10.2002 quashed the said communication and directed the respondents to reconsider the application of the petitioner for compassionate appointment in accordance with law and in light of the observations made in the order within the period of two months from the receipt of certified copy of the order. It is required to be noted that the respondents did not take action within the time limit stipulated and the petitioner had to move Miscellaneous Civil Application seeking direction against the respondents to comply with the order. It is thereafter the petitioner was sent communication dated 11.6.2003 at Annexure-B informing him that his proposal for compassionate appointment was accepted and appointment shall be given to him.

9. However, for giving appointment to the petitioner, the respondent No.1 took time of one year. Respondent No.1 passed order dated 22nd June, 2004 giving permission to respondent No.3 to give appointment order to the petitioner on vacant post of Junior Clerk (Class-III) on fixed salary and on ad-hoc basis as per the conditions of Resolution dated 15.6.2004. Based on such permission, respondent No.3 issued order dated 24.6.2004 appointing the petitioner on ad-hoc basis on fixed salary of Rs.2500.00 for five years and to give regular pay scale on completion of satisfactory service of five years subject to fulfillment of other requirements. The petitioner was given appointment with above such conditions because of the Resolution of the Government dated 15.6.2004 providing for such conditions for compassionate appointment.

10. It is required to be noted that if the application of Page 6 of 9 HC-NIC Page 8 of 11 Created On Fri May 06 02:42:17 IST 2016 8 of 11 C/SCA/453/2016 ORDER the petitioner was earlier not rejected vide communication dated 8.8.2000 on the grounds not germane to taking of decision for grant of compassionate appointment at the relevant time, the petitioner could have been given appointment before coming into force of the Resolution dated 15.6.2004. It is not the case that the petitioner was responsible for delay in taking decision on his application for compassionate appointment. The petitioner was very much vigilant and was in fact in need of employment and, therefore, did not waste any time in making the application. Unfortunately, though the application of the petitioner was in time and though the family income of the petitioner was not exceeding income limit fixed for the purpose of compassionate appointment, his application was not accepted. Such decision of not accepting the application was though quashed and time limit of two months was given for taking decision afresh, still such decision was taken and communicated to the petitioner only in the month of June 2003. However, once such decision was taken and communicated to the petitioner, it was expected of the respondent No.1 to pass immediate order permitting respondent No.3 to give appointment to the petitioner to sub-serve the object and purpose of the policy for compassionate appointment. However, for more than one year, respondent No.1 did not take further action for giving permission to respondent No.3 to give appointment to the petitioner. Such delay on the part of respondent No.1 has resulted into depriving the petitioner to get appointment as per the policy prevailing prior to Resolution dated 15.6.2004. Once the petitioner was vigilant to make application for compassionate appointment within the time limit on account of death of his father who was bread winner for the family, it was expected of respondent no.1 to act promptly in furtherance of the policy for compassionate appointment. Purpose behind the policy for compassionate appointment is to provide immediate relief to the heirs of employees who died in harness and, therefore, respondent No.1 could not have delayed the appointment to the petitioner especially when the decision to accept proposal for compassionate appointment was taken one year before, and more particularly, when this court directed respondent No.1 to take decision on the application of the petitioner within two months as per order dated 10.10.2002 passed in the petition filed by the Page 7 of 9 HC-NIC Page 9 of 11 Created On Fri May 06 02:42:17 IST 2016 9 of 11 C/SCA/453/2016 ORDER petitioner.

11. In view of the above facts and circumstances of the case, the appointment of the petitioner could not be permitted to be governed by the Resolution dated 15.6.2004. It is, therefore, to be held that the appointment of the petitioner shall be governed as per the policy for compassionate appointment in operation prior to introduction of the Resolution dated 15.6.2004. The respondents are, thus, required to pass fresh order of appointment in favour of the petitioner in consonance with the policy prevailing prior to the resolution dated 15.6.2004.

12. For the reasons stated above, the petition is partly allowed. The petitioner is held entitled to compassionate appointment on the basis of his application dated 9.12.1999 as per the policy for compassionate appointment prevailing prior to introduction of Resolution dated 15.6.2004. It is held and declared that the appointment given to the petitioner following the decision contained in communication dated 11.6.2003 at Annexure-B shall be governed by the policy of the State Government in force prior to resolution dated 15.6.2004. The respondents are directed to issue modified appointment order in favour of the petitioner as per the policy for compassionate appointment in force when the decision was taken to accept the proposal/application of the petitioner for compassionate appointment as found recorded in the communication dated 11th June, 2003 at Annexure-B i.e. as per the policy prevailing prior to introduction of Resolution dated 15.6.2004. The respondents shall issue such modified appointment order to the petitioner within the period of THREE MONTHS from the date of receipt of this order.

Rule is made absolute to the extent stated above. "

6. The respondents are directed to reconsider the claim of the petitioners in the light of the judgment referred to above, and take an appropriate decision in that regard in accordance with law within a period of eight weeks from the date of the receipt of the writ of the order.

Page 8 of 9 HC-NIC Page 10 of 11 Created On Fri May 06 02:42:17 IST 2016 10 of 11 C/SCA/453/2016 ORDER

7. While taking an appropriate decision, the authority shall also consider the decision of the Division Bench of this Court rendered in the Letters Patent Appeal No.906 of 2014 and allied appeals, decided on 18th September, 2004.

8. With the above, this writ application is disposed of.

Direct service is permitted.

(J.B.PARDIWALA, J.) Vahid Page 9 of 9 HC-NIC Page 11 of 11 Created On Fri May 06 02:42:17 IST 2016 11 of 11