PARA- WISE REMARKS

ON BEHALF OF RESPONDENT NO 01 in
SCA 13422 of 2023

SHRIMALI VIJAYKUMAR DAHYABHAI and others 43.

V/S
STATE OF GUJARAT AND OTHERS...
SR
.No
Remarks

1 No remarks

2 As per the same remarks on para 03.

3 FACTS  3.1
No remarks
 3.2
in the said para , petitioner appointment information are given ,
No remarks
 3.3
In the said para, policy dated 10/03/2000 and 07/09/2002 is
reproduced for the convenience of the court, hence, No remarks.
 3.4 to 3.6
The Government Resolution No. BHARAT102004-385-K
dated 15.06.2004 passed by the General Administration
Department, government of Gujarat regarding grant of
compassionate appointment to the dependent of the family of
government employees who dies in harnessed ad hoc
appointment whereby in Para No. 1 it is clearly stated that "the
candidates who are found to be eligible for appointment on
compassionate basis shall be given ad hoc appointment on fixed
salary at initial stage of five years on vacant posts." And as per
para no 5 after five year of satisfactory service, they are
regularised as per available places. And further in Para No. 11
clearly states that "these instruction would be applicable in all
those cases which are pending regarding compassionate
appointment and the appointments are yet to be given"

 As per the Para No. 11 clearly states that "these instruction

would be applicable in all those cases which are pending
 regarding compassionate appointment and the appointments are
yet to be given".

 3.7
The Petitioners have heavily relied on the cases of two persons,
Nilesh Patel and Manahar Naik, while claiming parity and
contending non-applicability of the GR dated 15.06.2004,
whereby, the compassionate appointees were placed on a fixed
pay scale for five years, before regularising their services. The
case of the Petitioners is that as they had made applications prior
to the issuance of the GR dated 15.06.2004 and concerned
relative had passed away before the issuance of the said GR,
same could not have been made applicable in their case.
 3.8
same remarks as per the remarks given in para 3.10 and para 04
 3.9
No remarks
 3.10
The Petitioners have heavily relied on the cases of two persons,
Nilesh Patel and Manahar Naik, while claiming parity and
contending non-applicability of the GR dated 15.06.2004,
whereby, the compassionate appointees were placed on a fixed
pay scale for five years, before regularising their services. The
case of the Petitioners is that as they had made applications prior
to the issuance of the GR dated 15.06.2004 and concerned
relative had passed away before the issuance of the said GR,
same could not have been made applicable in their case.

 The parity sought to be drawn with the two persons cannot be

permitted, as the facts in the case of the said two persons as
compared to the present Petitioners are on different footing. In
order to make a comparative between factual difference
between the two persons and Petitioners, following factual
details regarding the two persons would be relevant to refer

Case Details Nilesh Muljibhai Patel Manahar R. Naik

Date of Death 13.11.1999 19.06.1999
Date of Application 09.12.1999 24.06.1999
Received by the department
on 20/07/2000
Application - 08.08.2000 – 26.02.2001 – Application was
compassionate Application was rejected
appointment rejected.
Challenge SCA No. 7056 of 2001 SCA No. 1579 of 2002
dated 10.10.2002 dated 07.10.2002
Communications 11.06.2003 – accepting 07.04.2003 – accepting his
his application with a application with a promise to
promise to grant him grant him appointment in
appointment in future. future.
02.05.2003, 08.07.2003
Date of Appointment 22.06.2004 23.07.2004
Challenge qua SCA No. 23384 of 2006 SCA No. 22169 of 2017 –
applicability of dated 05.04.2007 – dated 04.07.2019 - Being
15.6.2004 consider the case with similarly situated person as
three months Nilesh Patel – vide order
12.06.2019 similar benefit was
granted.
SCA No. 30154 of 2007
dated 06.09.2013

 From the above factual details, it can be inferred that in case of

both the persons, their cases were initially rejected by the
concerned Department, thereafter, they approached this
Hon’ble Court, pursuant to which, a communication was issued
by the department, whereby, their compassionate appointment
was confirmed and they were informed . Subsequently, they
were given appointment pursuant to the issuance of policy dated
15.06.2004 and both were placed under fixed pay for the initial
five years. Being aggrieved, Nilesh Muljibhai Patel approached
this Hon’ble court challenging the applicability of the said GR.
This Hon’ble Court vide order and judgment dated 06.09.2013
was pleased to allow the petition observing that despite the State
accepting his case for compassionate appointment had not
issued appointment order until after the introduction of the fixed
pay policy, hence, the same would not be applicable. Further, it
would not be out of place to mention that even otherwise, the
GR dated 15.06.2004 was made applicable to only those
applications which were pending and had not been decided by
the Respondent, either positively or negatively. In the case of
the above two persons, the Department had initially decided
negatively and then reconsidered positively, whereas, in the
case of present Petitioners, the applications were pending
consideration and the appointments were issued which
contained the applicability of the said GR, which was accepted
by the Petitioners.
 Further, the Petitioners contend that the aspect of delay would
not be applicable as the department, in the case of Mr. Manahar
 Naik, has conceded to extend benefit of compassionate
appointment without applying GR dated 15.06.2004, however,
same is misplaced and misconceived and not admitted. It is
pertinent to note the reasons behind such stand of the State. In
the case of Manahar Naik, the State had accepted to extend him
the benefit of appointment without applying the GR dated
15.06.2004 as the said benefit was extended in favour of
similarly situated person, being Mr. Nilesh Patel. Whereas the
case of the Petitioners is not factually similar to the said persons
and therefore, they cannot contend that delay and laches would
not be applicable in their case. It is imperative that to seek
parity, the Petitioners will have to demonstrate that they are
factually similarly placed with the persons with whose case they
seek parity and this case is not a case of parity.
3.11 & 3.12

 No remarks

4 GROUNDS  A &B

Action of the respondent authorities is legal, justify and

accordance with the state policy.

 C

 The government servant would die, while serving with the

government department authorities and if the scheme has been
floated for giving appointment on compassionate ground, then,
in such circumstances, the rules, regulation and policy, which
had remained in force at the time old the sad demise of the
concerned employees, such policy would be made applicable
for the compassionate appointments.

 However , respondent herein seeks to place reliance of the

following judgments passed by the hon’ble apex court, wherein,
it was held that the policy at the time of consideration of
application would be applicable, in the case of MGB gramin
bank v/s chakrawarti singh,(2014) 13scc 583, the hon’ble
supreme court observed and held as under
 “14. A scheme containing an in pari materia clause, as is involved in this case
was considered by this Court in State Bank of India & Anr. vs. Raj
Kumar (2010) 11 SCC 661. Clause 14 of the said Scheme is verbatim to
clause 14 of the scheme involved herein, which reads as under:
“14. Date of effect of the scheme and disposal of pending applications:

The Scheme will come into force with effect from the date it is approved by the
Board of Directors. Applications pending under the Compasionate
Appointment Scheme as on the date on which this new Scheme is approved by
the Board will be dealt with in accordance with Scheme for payment of ex-
gratia lump sum amount provided they fulfill all the terms and conditions of
this scheme.”

13. The Court considered various aspects of service jurisprudence and came to
the conclusion that as the appointment on compassionate ground may not be
claimed as a matter of right nor an applicant becomes entitled automatically
for appointment, rather it depends on various other circumstances i.e. eligibility
and financial conditions of the family, etc., the application has to be considered
in accordance with the scheme. In case the Scheme does not create any legal
right, a candidate cannot claim that his case is to be considered as per the
Scheme existing on the date the cause of action had arisen i.e. death of the
incumbent on the post. In State Bank of India & Anr. (supra), this Court
held that in such a situation, the case under the new Scheme has to be
considered.”

 Similarly, in the present case, during pendency of the

application for compassionate appointment, the State authorities
had introduced GR dated 15.06.2004, which was specifically for
compassionate appointments and Clause 11 of the said GR
specifically mentioned that any applications pending
consideration shall be implemented in consonance with the said
GR.
 Further, in another judgment passed by the Hon’ble Apex Court
in the case of N.C. Santosh v. State of Karnataka, (2020) 7
SCC 617, the three-judge bench, while reconciling the two
contrary views taken in the case of Canara Bank v. Mahesh
Kumar, reported in (2015) 7 SCC 412 and two other judgments
including MGB Gramin Bank (supra) and after due
consideration, the bench observed and held as under:

“19. In the most recent judgment in State of Himachal Pradesh & Anr. vs.
Shashi Kumar, the earlier decisions governing the principles of compassionate
appointment were discussed and analysed. Speaking for the bench, Dr. Justice
D.Y. Chandrachud reiterated that appointment to any public post in the
service of the State has to be made on the basis of principles in accord with
Articles 14 and 16 of the Constitution and compassionate appointment is an
exception to the general rule. The Dependent of a deceased government employee
are made eligible by virtue of the policy on compassionate appointment and they
must fulfill the norms laid down by the State’s policy.

20. Applying the law governing compassionate appointment culled out from
the above cited judgments, our opinion on the point at issue is that the norms,
prevailing on the date of consideration of the application, should be the basis
for consideration of claim for compassionate appointment. A dependent of a
government employee, in the absence of any vested right accruing on the death
of the government employee, can only demand consideration of his/her
application. He is however disentitled to seek consideration in accordance with
the norms as applicable, on the day of death of the government employee.”

In the case of Director of Treasuries in Karnataka & Anr. v. V.

Somyashree, (2021) 12 SCC 20, while relying on the observations
and ratio laid down in N.C. Santosh (supra), has summarised and
observed as under:
“9. While considering the submissions made on behalf of the rival parties a
recent decision of this Court in the case of N.C. Santhosh (Supra) on the
appointment on compassionate ground is required to be referred to. After
considering catena of decisions of this Court on appointment on compassionate
grounds it is observed and held that appointment to any public post in the
service of the State has to be made on the basis of principles in accordance with
Articles 14 and 16 of the Constitution of India and the compassionate
appointment is an exception to the general rule. It is further observed that the
dependent of the deceased Government employee are made eligible by virtue of
the policy on compassionate appointment and they must fulfill the norms laid
down by the State’s policy. It is further observed and held that the norms
prevailing on the date of the consideration of the application should be the basis
for consideration of claim of compassionate appointment. A dependent of a
government employee, in the absence of any vested right accruing on the death
of the government employee, can only demand consideration of his/her
application. It is further observed he/she is, however, entitled to seek
consideration in accordance with the norms as applicable on the day of death
of the Government employee.

10. The law laid down by this Court in the aforesaid decision on grant of
appointment on compassionate ground can be summarized as under:

10.1 that the compassionate appointment is an exception to the general rule;

10.2 that no aspirant has a right to compassionate appointment.

10.3 the appointment to any public post in the service of the State has to be
made on the basis of the principle in accordance with Articles 14 and 16 of
the Constitution of India;
 10.4 appointment on compassionate ground can be made only on fulfilling the
norms laid down by the State’s policy and/or satisfaction of the eligibility
criteria as per the policy;

10.5 the norms prevailing on the date of the consideration of

the application should be the basis for consideration of claim
for compassionate appointment.”
 The above referred judgments clearly show the intention and
ratio laid down by the three-judge bench of the Hon’ble
Supreme Court, which while dealing with the issue regarding
compassionate appointment and principles governing such
appointments, has held that the norm prevailing on the date of
the consideration of the application should be the basis for
consideration of claim.

 D to K

 The main object of the compassionate appointment scheme is

to give relief in financial stringency and to assist the family to
cope with unexpected critical situation giving compassionate
appointment to the member of the dependent family of the
employee, who died during service leaving the family in
helpless condition without any means of livelihood

 The scheme of giving compassionate appointments under this

resolution has no constitutional backing that means no right is
established for compassionate appointment under this scheme.
Such appointments shall be subject to the compliance of all
terms and conditions for appointment like other cases along
with availability of vacancies as prescribed under this scheme.

 if we considered the main object of the scheme the main object

is to give relief in financial stringency and to assist the family
to cope with unexpected critical situation giving compassionate
appointment to the member of the dependent family of the
employee, who died during service leaving the family in
helpless condition without any means of livelihood. Hence, no
violation is made.
  L
In the said para petitioner is mention the SCA 17150 of 2019 ,
in this SCA 17150 of 2019,LPA is pending in filing stage and
SCA 14642 of 2019, in this case of SLP (Civil) Diary No 15096
of 2023 pending in supreme court of India (till date).

5  Same remarks as per para 03 and 04.

6  No remarks

7  No remarks

8  No remarks

9  The prayer of the petitioner is not sustainable as per the above

remarks.