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IN THE HIGH COURT OF GUJARAT
J.B. Pardiwala, J.
Chimanbhai I. Jadhav - Appellant
Vs.
Office Of The Principal Controller Of Defence Accounts - Respondent
Special Civil Application No.980 of 2005
Decided On : 12-09-2016
For the Appellant : Mr. Pradeep Patel, Adv.
For the Respondent: Mr. Nirzar S. Desai, Adv.
Headnote:
Constitution of India, 1950 –Articles 14, 16 and 226 – Constitution of Central Administrative Tribunal –Administrative Tribunal Act, 1985 – Sections 18 & 28 – Clai of compassionate appointment – Deceased father of the writ-applicant, was serving as a Record Clerk –. The writ-applicant, as a son and one of dependents, preferred application seeking compassionate appointment –Writ-applicant was called for written test which, he could not clear – Later he was offered temporary appointment –However later, he was informed there was no vacancy –Letter was addressed by writ-applicant to reconsider his case –Request to reconsider was turned down –Another application was filed by writ-applicant as there was likelihood of vacancies –Request of the writ-applicant was rejected –Held, Appointment on compassionate ground may not be claimed as a matter of right nor an applicant becomes entitled automatically for appointment –Application has to be considered in accordance with scheme –In case Scheme does not create any legal right, a candidate cannot claim his case to be considered as per Scheme existing on date cause of action had arisen –Based on State Bank of India & Anr case under new Scheme to be considered –Writ-application fails and is hereby rejected –Petition Dismissed
Facts of the case:
Deceased father of the writ-applicant, was serving as a Record Clerk –. The writ-applicant, as a son and one of dependents, preferred application seeking compassionate appointment –Writ-applicant was called for written test which, he could not clear – Later he was offered temporary appointment –However later, he was informed there was no vacancy –Letter was addressed by writ-applicant to reconsider his case –Request to reconsider was turned down –Another application was filed by writ-applicant as there was likelihood of vacancies –Request of the writ-applicant was rejected.
Findings of the Court:
Appointment on compassionate ground may not be claimed as a matter of right nor an applicant becomes entitled automatically for appointment –Application has to be considered in accordance with scheme –In case Scheme does not create any legal right, a candidate cannot claim his case to be considered as per Scheme existing on date cause of action had arisen –Based on State Bank of India & Anr case under new Scheme to be considered –Writ-application fails and is hereby rejected
Result: Petition Dismissed
J.B. Pardiwala, J.
By this writ-application under Article 226 of the Constitution of India, the writ-applicant has prayed for the following reliefs :
"(A) Be pleased to admit this petition;
(B) Be pleased to issue appropriate writ, order or direction in the nature of mandamus under Article 226 of the Constitution directing the respondent to consider the case of the petitioner for appointment on the compassionate ground on either in Group C. or Group D post in place of his father I.H. Jadhav who died in harness in the respondent department on 29.5.1998 after declaring that, the action of the respondent in not offering appointment on compassionate ground is arbitrary, illegal, discriminatory, and violative of Article 14 and 16 of the Constitution as also against the settled legal position according to the law laid down by this Honble Court and the Honble Supreme Court of India.
(C) Pending admission, hearing and final disposal of this petition, Your Lordships may be pleased to pass appropriate orders, directing the respondent to provide work to the petitioner on temporary basis as was done in the year 1999 and thereafter, direct the respondent to consider the case of the petitioner for regular appointment on compassionate grounds in case of vacancy in Group C. or Group D in future in the respondent department;
(D) Be pleased to pass any other and further order as may be deemed fit and proper in the interest of justice;"
2. It appears from the materials on record that the father of the writ-applicant, viz. I.H. Vaghela, was serving as a Record Clerk, Area Accounts Office, Controller of Defense, Southern Command, Ahmedabad. The father of the writ-applicant passed away on 29th May 1998 while in service. The writ-applicant, as a son and one of the dependents, preferred an application dated 10th May 1999, seeking compassionate appointment in Group-C. The writ-applicant was called for the written test on 12th August 1999 which, unfortunately, he could not clear so far as the vacancies in Group-C is concerned. Later on, it appears that he was offered temporary appointment vide order dated 22nd September 1999. However, vide communication dated 4th May 2000, he was informed that there was no vacancy in Group-D. On 15th February 2001, the writ-applicant was informed that all the vacancies in Group-C and Group-D were filled up. On 12th June 2001, a letter was addressed by the writ-applicant to reconsider his case. By communication dated 21st June 2001, the request to reconsider was turned down. On 22nd April 2002, another application was filed by the writ-applicant as there was a likelihood of vacancies occurring in Group-D. Vide communication dated 8th September 2003, the request of the writ-applicant was rejected.
3. Being dissatisfied, the writ-applicant has come up with this writ-application.
4. On behalf of the respondent, an affidavit-in-reply has been filed, inter alia, stating as under :
"2. At the outset I say and submit the contents of the speaking order dated 25.8.2003 issued to the petitioner, interalia, informing him the true and correct facts of giving appointments on compassionate grounds. It is respectfully stated and submitted that 5% of Direct Recruitment quota is earmarked for the appointment on compassionate grounds in Group 'D and this 5% posts have already been filled up by Head Quarters Office from time to time and as such there is no vacancy available within the ceiling of 5% of DR quota meant for compassionate appointments. It is also brought to the notice of the petitioners the several pronouncements of the Hon'ble Supreme Court wherein the Apex Court has time and again cautioned that the appointment on compassionate grounds can be made only if a vacancy is available for that purpose. It is further most humbly and respectfully stated and submitted that in the present case, there is no vacancy available so as
