Judgment:
1. The petitioner an unfortunate widow of a deceased employee has been rendered absolutely helpless and destitute on untimely and prematured death of her husband Usmankhan Ashrukhan, who expired as back as 9th of August, 1982 while he was on duty as Helper in Gujarat Electricity Board. She was then mother of three children, the youngest being two months old when her husband expired. To feed four months without any source of income was practically impossible for petitioner who comes from the community where ordinarily she has to live the life of Pardanashin women. The only bread - earner of the family being the husband died prematurely rendering entire family in a sheer helpless state of starvation. She applied to the respondent to appoint her on any suitable post either as peon or water women or to offer her any other work so as to entitle her to some amount from which she could maintain herself and the three children. Four years after the death of her husband, the respondent-Board called upon the petitioner to supply various documents such as certificate of date of birth and certificate of her educational qualification. She furnished the necessary details but respondent did not take any action. She ultimately approached Member of the Legislative Assembly of the very area, who also tried to help her and addressed letter in the year 1989 to the respondent. But that also brought no succour to the petitioner. Since petitioner did not received any financial aid and/or employment, she ultimately filed this petition in the year 1990 for compassionate appointment based on the principles enunciated by the Supreme Court of India in the case of Smt. Sushma Gosain v. Union of India 1989 II CLR 607.
(i) The deceased husband of the petitioner was employed and was serving and Helper in Anand Circle of the Board and that he expired while he was on duty.
(ii) As per the practice prevailing with the Board as also under various General Standing Orders and even on humanitarian ground, the family member of the deceased employee can be accommodated by the Board by offering suitable job, provided that certain conditions stipulated under the Rules and Regulations and/or Resolutions of the Board are complied with.
(iii) In order that the dependent of the decease employee can be provided employment on compassionate ground, such dependent must possess the requisite qualification for a suitable post. In the present case, petitioner Sabrabibi has passed Gujarati Std. 5th and, therefore, she can get the post only of a part-time employee.
(iv) The Gujarat Electricity Board has already made offer to the petitioner to provide her a job and to give her appointment as a part-time Kamdar at Dohad in Panchmahals District as there was vacancy available only at Dohad though it was known that petitioner being a lady and having young kids would not be in a position to go to and attend the duty at Dohad a place which is far away from Kheda District.
(v) At present there is no vacancy available in any part-time post and as and when vacancy of part-time Kamdar would be available, the Board would certainly give priority to offer job to the petitioner in Kheda District or at Mehmadabad, Vaso-Limbashi.
(vi) According to the provision of General Standing Order, the family members of the deceased employee, if the employee has met with an unnatural death, are entitled to get a cash amount of Rs. 500/- per month by way of maintenance allowance. It is stated that if the petitioner so desires to get such relief from the Board, she can approach the Executive Engineer (O&M;), Anand, Lamval Road, Anand, from where she would be provided with necessary form to be filled in by her had she would be given guidance and on her tendering the complete form, the Board will consider her request and she will be paid Rs. 500/- by way of maintenance allowance if the Committee so takes the decision.
3. On the aforesaid admissions made by the Gujarat Electricity Board in the first affidavit-in-reply which is filed the question which arises for the consideration of this Court is as to whether the petitioner is required to be granted any immediate relief as period of more than 11 years in absolutely helpless and destitute condition with three young kids to be fed, stares at the Court as such a long period must have rendered the petitioner to mere state of object poverty and penury.
4. This Court, therefore, by order passed on Civil Application No. 992 of 1992 directed the responsible officer to come with full details as regards availability of any Class IV post or part-time post. In response to the said order passed on 18th of January, 1994, further affidavit-in-reply is filed by G. B. Pate, Superintending Engineer, wherein following facts are stated :
(i) The petitioner is not entitled to get the benefit of Rs. 500/- as monthly allowance because as per Section 2-P settlement the benefit of monthly allowance of Rs. 500/- to the heirs of the deceased employee is available to only those, in whose case the death of the employee has taken place on or after 24.7.1988 while the husband of petitioner expired on 9th of August, 1982, i.e., much prior to the date of settlement and, therefore, G. E. B. is unable to extend the benefit of monthly allowance of Rs. 500/-. This stand of the respondent-Board though legalistic is quite inconsistent with the earlier stand taken by the Board in its affidavit-in-reply. Even prior to 2-P settlement, it appears that under various orders, resolutions and standing orders such benefits were extended to the heirs of deceased employee and now to deny such benefit to the entire family which is rendered destitute and helpless is in the opinion of this Court rather taking an inhumane approach to the problem.
(ii) The Gujarat Electricity Board is absolutely unable to appoint or accommodate the petitioner as there is no vacancy at all as there are other persons waiting in the waiting list for appointment either on part-time employment or on compassionate ground. At this stage reference is required to be made to the chart which is produced along with further affidavit-in-reply. As per the said chart, around 8 dependents of deceased employees are not provided any benefit of payment of Rs. 500/- per month as per G. S. O. Nos. 312 or 295 nor is any employment offered to any one. It may be mentioned that the cases of five employees out of eight employees are subsequent to the year 1982 whereas two cases are of the year 1982 and one case is of the year 1978. Another chart which is produced along with the affidavit-in-reply shows names of four employees whose dependents are to be employed and such employees have expired in the years 1989, 1992 and 1993, i.e., subsequent to the date of death of husband of the present petitioner. Yet another chart which is produced goes to show that part-time work is provided and 17 employees are working as part-time workers in various field offices of Anand Circle. It is pertinent to note that at least eight of such employees are employed after 1982 and they are employed part-time varying from three hours to five hours and are being paid their salary accordingly. One fails to understand as to why in this category, no work is provided to the petitioner on part-time basis. The only difficulty which is pointed out to this Court by Mr. K. S. Nanavati, learned Counsel appearing for the Board is that even in the category of part-time worker no vacancy exists as on date.
5. The question which is now required to be considered is as to whether the Court should wait till the vacancy is made available for offering part-time employment to the widow of the deceased who has expired as back as 1982. Period of more than 11 years has expired and she has suffered untold miseries inasmuch in such state she has lived the life of starvation, abject poverty and penury. The stand of the Board is that is absence of any vacancy, no part-time job could be provided and even if petitioner deserves compassionate appointment, Court as well a G. E. B. must accept the helpless condition. This Court cannot accept such a contention and in the opinion of this Court the observations made by the Supreme Court in the case of Smt. Sushma Gosain v. Union of India reported in 1989 II CLR 607, are very apposite and shall have to be squarely applied in the facts and circumstances of the present case. Before the Supreme Court, the workman expired in October 1982 and his widow Smt. Sushma Gosain with two minor children sought compassionate appointment. After complying with certain formalities such as receiving application from her calling for educational qualifications and certificates etc., no appointment was given to her and, therefore, she approached the High Court and High Court dismissed the petition. When the matter was carried further to the Supreme Court, following pertinent observations were made by the Supreme Court.
'9. We consider that it must be stated unequivocally that in all claims for appointment on compassionate grounds, there should not be any delay in appointment. The purpose of providing appointment on compassionate ground is to mitigate the hardship due to death of the bread-earner in the family. Such appointment should, therefore, be provided immediately to redeem the family in distress. It is improper to keep such case pending for years. If there is no suitable post for appointment supernumerary post should be created to accommodate the applicant.'
6. From the aforesaid observations it becomes clear that the purpose of providing appointment on compassionate ground is to mitigate the hardship due to death of the bread-earner in the family. Such appointment should, therefore, be provided immediately to redeem the family in distress. To keep such a case pending over years in substance would amount rendering the family of the deceased employee destitute and helpless. The very purpose of compassionate appointment would be frustrated if the dependents of the family are called upon to wait for indefinitely long period. It is also required to be noted that in the present case period of more than 11 years has expired and this widow is called upon not only to maintain herself but three young children without any source of livelihood as such. In the peculiar facts and circumstances of the case, I am of the opinion that some directions shall have to be issued so that though late, some relief is rendered to this destitute family.
7. At this stage reference is also required to be made to the recent decision of the Supreme Court in the case of Auditor General of India v. G. Ananta Rajeswara Rao, reported in 1994 (1) SCC 192. The Supreme Court held that appointment on compassionate ground to son, daughter or widow to assist the family so as to relieve economic distress, caused by sudden demise in harness of Government employee is valid. However, if appointment is to be made solely on the ground of descent, the Supreme Court did not approve of Office Memorandum issued by Andhra Pradesh Government. In fact, the Supreme Court accepted the decision of the Andhra Pradesh High Court and held that compassionate appointment solely on the ground of descent cannot be encouraged as it would be breeding ground for misuse of appointments. Ground of descent for appointment is held to be violative of Art. 16(2) of the Constitution. The Supreme Court held that it the appointments are confined to the Son/daughter or widow of the deceased government employee who died in harness and who needs immediate appointment on grounds of immediate need of assistance in the event of there being no other earning member in the family to supplement the loss of income from the bread-winter to relieve the economic distress of the members of the family, it is permissible. But, in other cases, there cannot be a rule to appoint the persons to Government service on the ground of compassion. Such appointment cannot be on the ground of descent simpliciter. In other words, recruitment to public post ordinarily shall have to be consistent with Art. 16 of the Constitution of India and compassionate appointment should not become a regular source of recruitment so as to deny even opportunity of consideration to other eligible persons. In the present cases, however, since widow of the deceased employee is seeking appointment and since there is no other earning member in the family, in my opinion, the aforesaid decision of the Supreme Court can be consistently applied to the fact situation of the case.
8. The Supreme Court has in the aforequoted observations also issued direction to the respondent to create supernumerary post to provide work to the widow of the deceased. Though as matter of rule,. such directions are rarely issued, looking to the facts and circumstances of the case, more particularly in view of the fact that the widow has suffered too much over a period of 11 years with three children, with a view to seeing that she is not made to suffer this untold misery any longer, directions shall have to be issued to the respondent-Board to create supernumerary part-time post in Kheda Circle itself and to provide petitioner appointment on such post within two weeks from today preferably by 1st of March, 1994. If the usual procedure in creating a supernumerary post and appointing the petitioner on such post is likely to take some further time, respondents are directed to pay monthly allowance to the petitioner at the rate of Rs. 500/- per month beginning from 1st of March, 1994 till such supernumerary post is created and petitioner No. 1 appointed on such post. This direction squarely falls under S. 2P Settlement and even in absence of applicability of such Settlement in past such monthly allowance was granted to the dependents of deceased employee.
9. In view of the aforesaid directions the petition succeeds. Rule is made absolute. There shall be no order as to costs.