S.D. Shah, J.
1. Appointment on compassionate ground in a public employment, though now judicially recognised in India by various dictums of the Supreme Court and many High Courts, does require investigation as to whether there is a right in the dependent of the deceased employee to get public employment or as to whether there is any legal obligation on the employer to offer such appointment. While considering such a question which arise for consideration in this group of petitions, this Court is reminded of following famous anecdote:
A hustling society woman called on President Lincoln and told him .'My son must be given a commission. It is right of our family. Sir, since my grandfather fought at Lexington, my uncle was one of the few who stood his ground at Bladen-sburg, my father was in the battle of New Orleans and my husband died in the battle of Monterey.'
'My dear lady' said Abraham Lincoln 'your family has done enough for the nation. It is time to give somebody else a chance'.
2. This small anecdote shows one of the approaches to the problem posed for my consideration. In a nation where freedom-fighters zealously and vigorously fight 'legal battle' for pension and where Honourable Members of Parliament periodically push through demands for pension, most ideal and praise-worthy solution to the problem as shown by President Abraham Lincon may not be palatable and acceptable. I also cannot deviate and set a different note when binding precedents of the Courts compel me to follow the same.
3. These three petitions are filed under Article 226 of the Constitution of India challenging the action of the respondents in denying to the petitioners consideration for appointment on compassionate grounds on the ground that the Government Resolution, dated July 4, 1988 does not apply to dependents of all those employees who have expired prior to July 4, 1988.
4. The petitioner in Special Civil Application No. 5365 of 1992 is the son of deceased Parbatsinh Jhala who was serving as Assistant Teacher in the Prakash Vidyalay - the respondent No. 4 herein, and admittedly Parbatsinh Jhala was in active service till November 26, 1987. He expired on November 27, 1987 while he was in service of the school. He has completed 24 years of service in the respondent No. 4 school. Since said Parbatsinh Jhala expired while in employment of respondent No. 4 school, his son, the petitioner herein has applied for appointment on compassionate grounds in the respondent No. 4 school to any Clause Ill or Clause IV post. It appears that on the said application no action is taken by the respondents so far. But from the affidavit-in-reply which is field in this Court it is clear that the said application is rejected, inter alia, on the ground that the Government Resolution, dated July 4, 1988 would not apply es the father of the petitioner has expired on November 27, 1987, i. e., on the date on which the Government Resolution, dated July 4, 1988 was not in operation.
5. In Spl. C. A. No. 55)5 of 1992 the petitioner is one Nandaben Devsinhbhai Chavda and her husband deceased Devsinhbhai Chavda was serving as peon in Vijaynagar Secondary School - respondent No. 4. He died on September 18, 1986 while he was in active service of respondent No. 4 as peon. The widow of deceased Devsinhbhai Chavda has passed IXth standard examination and is otherwise eligible and qualified to be appointed as peon, which is Class IV post. It may be stated that she belongs to Scheduled Caste and there is one post vacant in the respondent No. 4 school. She has applied for the post of peon under the aforesaid Govt. Resolution, dated July 4, 1988 and the school management is ready and willing to appoint her to the post of peon but the respondents have rejected her application vide order, dated November 27, 1991 on the ground that Commissioner, Higher Education, Gujarat State, Sachivalaya has taken decision that Govt. Resolution, dated July 4, 1988 is not applicable to the dependents of employees who have expired prior to July 4, 1988, and since the husband of the petitioner has expired on September 18, 1986, i.e., the date prior to July 4, 1988 she cannot be offered appointment on compassionate grounds under the aforesaid Govt. Resolution.
6. In Spl. C. A. No. 6975 of 1992 the petitioner is the son of deceased Jaswantsinh Bodana who was serving as Senior Clerk in N. B. Bhavsar Sarvajanik High School - the respondent No. 4 herein and who died while in active service on November 7, 1987. Since his father expired while in service as Senior clerk the petitioner has applied for appointment on compassionate grounds in the respondent No. 4 school for the post of Junior Clerk. On said application order is passed by the respondent authorities. From the stand taken in affidavit-in-reply it becomes clear that the same is likely to be rejected firstly on the ground that the Govt. Resolution, dated July 4, 1988 would not apply to the petitioner because his father has expired prior thereto and secondly on the ground that the post of Junior Clerk is to be filled by way of promotion of the peon who is otherwise eligible for being promoted and therefore there is no vacancy in the cadre of Junior Clerk.
7. From the aforesaid factual matrics it becomes clear that all the three petitioners have applied for appointment on compassionate grounds in the respondents-schools inter alia stating that they are entitled to said appointments on compassionate grounds under the Government policy which is laid down by Govt. Resolution, dated July 4, 1988. On the other hand, the stand of the respondent authorities is that the Govt. Resolution, dated July 4, 1988 is prospective in operation and would apply only to the dependents of employees who have died after July 4, 1988 and therefore the dependents of the employees who have died prior thereto cannot get any benefit under the aforesaid Govt. Resolution.
8. In order to decide the legality and validity of the stand of the respondent authorities and to ascertain the right of the petitioner to appointment on compassionate grounds it will be necessary for this Court to examine in detail various provisions of the Govt. Resolution, dated July 4, 1988. After undertaking that exercise it will also be necessary for this Court to adumbrate upon the right of appointment on compassionate grounds of the dependents of the employees who have died in harness while in service. It will also be necessary for this Court to examine as to whether new source of recruitment should be liberally created when in the job market job is rarely available and when large number of jobless persons are staking their claim for consideration under Article 14 of the Constitution of India.
Govt. Resolution, dated July 4, 1988:
9. It appears that the Education Department, State of Gujarat has issued Resolution bearing No. BMD-1386/2286/88-G, dated July 4 1988. While issuing said resolution the department has also taken into consideration its earlier resolution, dated May 8, 1986. By Resolution of Education Department, dated May 8, 1986 it was resolved that if any employee of non-teaching staff of Grant-in-Aid Govt. secondary school expires while in service his dependent should be given service on compassionate grounds. It was under consideration of the Government to extend benefit of the said resolution to all employees of non-teaching staff of secondary and higher secondary schools. After careful consideration it was decided that as in case of Govt. employees their dependents are given employment in Govt. service the dependents of employees of non-Govt secondary/higher secondary schools should also be given appointment on compassionate grounds if one expires while in service on following terms and conditions:
(i) If any employee of the school expires while in service any one of his dependents shall be given appointment on compassionate ground in any Class III (lower cadre) or Class IV post, if such dependent is otherwise eligible/qualified as per rules for said appointment on compassionate grounds on his/her making application. Despite this while giving such appointment on compassionate ground if promotion is to be given as per rules to any old employee such promotion shall be given and if any post remains to be filled in thereafter it shall be filled in by giving such appointment as per qualification of the candidate. Ordinarily, such appointment on compassionate grounds shall not be given after 5 years from the date of death of concerned employee.
(ii) While giving such appointment on compassionate ground no relaxation shall be given in educational qualifications. However, along with educational qualifications where minimum years of experience is essential, in the years of experience relaxation can be given.
(iii) It shall have to be ascertained that family of the deceased employee is in absolute destitute/helpless condition. In this connection the income of the family of the employee concerned from that source should not exceed Rs. 600/- p. m. or any other limit which can be fixed by the Government in connection with Government employees and in such cases while taking any decision as regards income of the employee information regarding following should be obtained:
(a) The properties, such as, buildings or immoveable properties left behind by the deceased employee and the income arising therefrom.
(b) Share of the deceased employee in those properties.
(c) Any source of income and the amount of said income.
(d) Full details of all dependents, such as, name, age, qualification, occupation/business, their relation with the employee and their monthly income.
(iv) From out of the family of the deceased employee any person who is to be given appointment must either be son, unmarried daughter or wife or husband as the case may be of the deceased employee.
(v) In case of appointment on compassionate ground the dependent of the deceased employee shall have to apply to the Dist. Education Officer, and the Dist. Education Officer shall have to obtain all the details of income and shall have to verify the same and thereafter shall have to recommend as to for which post the applicant is fit and with that he shall have to send his proposal to the Director of Higher Education. The Director of Higher Education shall verify all the information supplied to him and he shall after obtaining approval of the Secretary, Education Department, give appointment to the dependent.
(vi) The appointment shall be given to the dependent in the very approved school in which deceased employee was working.
(vii) While giving appointment to the dependent if such appointment is to be given in Class IV post the incumbent should have completed minimum 15 years of age and in case of appointment to the CL III post he must have completed 17 years of age and in case where dependent is wife or husband and he/she is illiterate and if there are minor children anyone of them can apply when one attains age of 15 or 17 years Before that their applications shall not be considered.
(viii) In case of giving any relaxation to the scheme, appropriate approval of Gen. Admn. Department shall be obtained. Condition No. 1 of the said Govt. Resolution also stipulates that the appointment on compassionate grounds shall be given only if there is vacancy and for the purpose of giving appointment on compassionte grounds no new post shall be created.
10. From the aforesaid text of the Government Resolution the underlying policy of giving appointment on compassionate grounds to the dependent of the deceased employee who is rendered helpless and/or destitute can be easily read. The Government as an ideal employer realised the need of giving appointment on compassionate ground in appropriate cases to the dependents of deceased employees who has died while in service. The terms and conditions subject to which such appointments shall have to be given are also with sufficient specificness delineated by prescribing the conditions in the resolution itself. The condition No. 3 leaves no room for doubt that it is only when the family of the employee is rendered helpless and/ or destiute that the appointment on compassionate ground is to be given and the Government has provided that in case where monthly income of the family is Rs. 600/- p. m. or below, the eligibility to apply for the post is established. The Government has also taken care to see that it is the income of the family of the dependent which is to be ascertained and therefore the income from other sources is also to be taken into consideration. In my opinion, the Government has taken sufficient care to see that absolutely helpless and/or destitute dependent of the deceased employee who has no source to maintain and survive is to be given appointment. The object of the Government Resolution is not to provide alternative source of recruitment so as to deny the right of at least being considered for job in a country of jobless unlimited. If the right to job guaranteed by Article 21 of the Constitution is to reach to those jobless unlimited a new source of recruitment under the banner of 'appointment on compassionate ground' should not be permitted to be created, and in my opinion, appointment on compassionate grounds shall have, to be given only in the circumstances stated hereinabove as stipulated by the Government in its resolution.
11. With the aforesaid objective in mind, this Court shall have now to examine as to whether the Government has while passing the aforesaid resolution, dated 4th July, 1988 stipulated that the dependents of any employee who has expired prior to 4th July, 1988 cannot apply for appointment on compassionate grounds under the said resolution. The stand of the respondent authorities is that since the resolution is issued on 4th July, 1988 it cannot have any retrospective effect, as executive instruction cannot be given retrospective effect. It is their say that the resolution having come into fence on 4th July, 1988 can have effect only after that date and therefore it can apply only to the dependents of those employees who have expired after 4th July, 1988. It is very vehemently submitted before this Court by respondents that permitting dependents of employees who have expired prior to 4th July, 1988 to apply for appointment on compassionate grounds under this resolution would amount to giving retrospective effect to the resolution which the Government never intended to give. It is their further say that the Gen. Admn. Department of the State Government has construed this resolution to mean that the dependents of those employees who have expired after 4th July, 1988 only can apply for appointment on compassionate grounds under this resolution and accordingly they have submitted that none of the petitioners was entitled for being considered for appointment on compassionate grounds. Mr. T. H. Sompura and Mr. L. R. Pujari learned AGPs have also submitted that the last line of the Condition No. 1 shall have to be read with Condition No. 7 and in their submission last line of condition No. 1 only prescribes the period of limitation within which the application for appointment on compassionate grounds can be made. They therefore submitted that the last line of condition No. 1 cannot be read so as to mean that within five years from the date of death of deceased employee an application can be made for appointment on compassionate grounds.
12. In my opinion, the underlying policy of the aforesaid resolution is to extend the benefit of appointment on compossionate ground which was available to dependents of deceased Government employees to employees of teaching and non-teaching staff of non-Govt. secondary/higher secondary schools. The preface of the resolution makes it abundantly clear that the Government has decided to extend the benefit of said Government policy to the dependents of teaching and non-teaching staff of non-Govt. secondary/ higher secondary schools. The primary object behind issuing said Govt. resolution is to see that on the death of employee (teaching & non-teaching staff) his dependents are not rendered helpless and/or destitutes. Son, unmarried daughter and husband or wife, as the case may be, of the deceased employee only fall within the zone of consideration. None else is automatically entitled to apply for appointment on compassionate grounds under Condition No. 3 and such application can only be granted if the family of the deceased employee is rendered absolutely helpless and/or destitute and such condition of the family is to be ascertained by reference to the income of the family and if said income from all sources does not exceed Rs. 600/- p.m. such appointment on compassionate grounds can be given. Having thus duly circumscribed and restricted the operation of the Government Resolution the Government has provided that such dependent who would satisfy the aforesaid requirements would be entitled to appointment on compassionte grounds. If the underlying policy of the resolution is to provide appointment oh compassionate grounds to such dependents who are rendered helpless and/ or destitute the question which is required to be asked is as to whether application of the resolution is required to be confined to the cases of those employees who have expired after July 4, 1988 and not to other employees. By providing time limit for such appointment on compassionate grounds, i.e., such appointment on compassionate grounds was not to be given beyond five years from the date of death of employee, in my opinion, it is provided by the Government that at least within five years from the date of death of employee, there is a right in the dependent of being considered for appointment on compassionate grounds if he/she fulfills other terms and conditions of the resolution. Consistent with the policy underlying the Government Resolution it will be just and proper to read the last line of condition No. 1 of the resolution to mean that the dependents of deceased employee can apply for appointment on compassionate grounds within a period of five years from the death of the employee. The other interpretation suggested by the learned Govt. Pleaders that it simply prescribes the outer limit of period within which the application can be made by the dependent of the deceased employee, though possible should not be accepted as it totally excludes from consideration the dependents of those employees who have expired prior to July 4, 1988. It is also pertinent to note that it is nowhere prescribed in the resolution that it will come into force from July 4, 1988 only or that it will apply only to the dependents of those employees who have expired after July 4, 1988. In the absence of such specific stipulation, and in view of stipulation contained in last line of condition No. 1 of the resolution, in my opinion, it would be just and reasonable to read the resolution in such a manner so as to mean that if application is made within five years from the date of death of the deceased employee it can be considered. In giving such interpretation this Court has kept in mind the underlying policy of the aforesaid resolution.
13. In the case of Divyaben Oza v. Divisional Controller, S.R.T.C. reported in : (1989)2GLR967 the learned single Judge of this Court was called upon to consider the claim for appointment on compassionate grounds as the policy framed by the State Road Transport Corporation was to give relief to the widow and minor dependents of deceased employee within five years of the death of the employee. Prior to prescription of said policy, the policy of the Corporation was to give appointment on compassionate grounds within one year from the date of death of employee. The said policy was, subsequently, changed so as to prescribe period of five years from the date of death of employee within which the dependents can be considered for appointment on compassionate grounds. The claim of the petitioner before the learned single Judge was denied on the ground that when the employee died the old policy was applicable and the appointment on compassionate grounds could be made only within a period of one year. Negativing the aforesaid submission, the learned single Judge of this Court observed as under;
Thus, it is clear that the Corporation is alive of the needs of the family of the deceased employee when it consists of minor dependents and it is with this benevolent purpose that it has extended the period to five years. The elder son attained the majority in 1980 whereas his father had died in 1978. Thus, within about two years and two months of the death of the employee, he has attained the majority and his case is covered by this circular. The argument of the respondent-Corporation is that this circular came into operation only in February, 1980 and before that earlier circular was in existence which gave an opportunity upto one year only and therefore the rights of the petitioner and her elder son were governed by the earlier circular. It is not possible to accept this argument. The policy underlying the circular is to give relief to the widow and minor dependents of the deceased employee within five years of the date of death of the employee and even beyond that period. Having regard to that policy, it is very clear that the case of the petitioners eldest son clearly falls within the standing order No. 683, dated 15-2-1980 and the Corporation was not justified in refusing to give appointment to the eldest son merely on the ground that he attained majority after one year of death to the employee.
14. From the aforesaid observations it becomes clear that the policy underlying the Government Resolution is to be ascertained first, and if the intention of the Govt. was to extend the benefit of appointment on compassionate grounds to the dependents of the deceased member of teaching or non-teaching staff of Secondary or Higher Secondary schools it will not be just and proper to read the Govt. Resolution as one operative from July 4, 1988 and as one applicable to only those employees who have expired subsequent to July 4, 1988. Accepting such an interpretation would, in my opinion, render number of dependents ineligible at least for consideration for appointment on compassionate grounds. All the dependents of those employees who have expired prior to July 4, 1988 will be rendered ineligible despite stipulation in the resolution itself that the dependents of the deceased employees can apply for appointment on compassionate grounds within a period of five years from the date of death of the employees. In substance, the resolution retroacts and there is no need to curtail such retroactive operation as it achieves the wholesome underlying object of the scheme.
15. The right of dependents of deceased employees for appointment on compassionate grounds is now well recognised by the decision of the Supreme Court in the case of Smt. Susma Gosai v. Union of India reported in : (1990)ILLJ169SC In the case before the Supreme Court in fact the claim for appointment on compassionate grounds was not seriously disputed. In fact there was unusual delay in processing the claim, the widow of the deceased employee was the claimant and immediately after the death of her husband she was called for written test and later on for interview. She, in fact, passed the trade test. However, she was not appointed, she was denied the appointment on the ground that the appointment of ladies in the establishment was prohibited and that she even could not be accommodated in other department. The High Court dismissed the writ petition and in appeal before the Supreme Court while granting the appeal Justice K. Jagannatha Shetty speaking for the Court,
The purpose of providing appointment on compassionate grounds is to mitigate the hardship due to the death of bread-winner in the family. Such appointment should, therefore, be provided immediately to redeem the family in distress.
16. In the case of Smt. Kamala Gaind v State of Punjab, reported in 1990 (Supp) SCC 800 while examining the scheme providing job to one of the members of the family of a public officer who was killed by terrorist the Court consistent with the scheme even applied underlying concept of Articles 14 & 16 of the Constitution of India and directed suitable post to be provided to the son of the appellant. Though the said case stands on peculiar situation, and peculiar scheme framed by the Punjab Government, it can be said that the right of being considered for appointment on compassionate grounds on satisfying all the conditions of the Government Policy is now well accepted. Similarly, in the case of Smt. Pholwati v. Union of India reported in : AIR1991SC469 the Supreme Court issued directions to the Central Government to take immediate steps for employing second son of appellant in suitable post commensurate with the educational qualifications by following its earlier judgment in the case of Smt. Susma Gosai (supra). It, thus, becomes clear that in appropriate cases where the death of employee in Government Service in harness brings about a situation of rendering his family, i.e., his widow, son or unmarried daughter in helpless and/or destitute condition there is obligation on the part of the State Government to look back upon the family of the deceased employee and to consider the claim of such family member who is otherwise eligible for appointment on compassionate grounds. The State may prescribe terms and conditions subject to which such appointment on compassionate grounds can be given. It may examine whether the claimant genuinely needed appointment on compassionate grounds failing which the entire family would be rendered helpless, hopeless and destitute. It can also see that only in genuine and exceptional cases such right is recognised and that the appointment on compassionate grounds in Government Service may not become a parallel source of recruitment. But at the same time, it cannot run away from such obligation when family of its own employee is rendered helpless and destitute. Consistent with the aforesaid principle if the policy underlying the Government Resolution, dated July 4, 1988 is interpreted and applied reasonably I have no manner of doubt that State Government intended to extend its benefit to the dependents of the employees who have died within a period of five years.
17. In view of the aforesaid interpretation of the Government Resolution, dated July 4, 1988 the orders passed by the respondents cannot stand and the petitions of the petitioners shall have to be allowed with a direction to the respondents to consider afresh the claims of the petitioners for appointment on compassionate grounds. It may be stated that the petitioner in Spl.C.A. No. 5515 of 1992 is a widow of the deceased employee and she hails from Scheduled Caste, hence, if otherwise eligible, her claim is required to be considered immediately, especially, when the respondent-School is ready and willing to absorb her as Peon in its school, and as regards the other petitioners the same shall be decided by the respondents in the light of the observations made hereinabove, and if they are otherwise eigible for appointment on compassionate grounds.
18. In the result, these petitions are allowed and Rule in each petition is made absolute to the aforesaid extent, by quashing and setting aside the action of the respondents in not considering the case of each petitioner as eligible for consideration on the ground that the Government Resolution, dated July 4, 1988 does not apply to them and the respondents are directed to consider the cases of the petitioners for appointment on compassionate grounds afresh if they are otherwise eligible. In the case of petitioner in Special C.A. No. 5515 of 1992 the respondents are directed to consider her case immediately as she is in every respect eligible and is the widow of deceased employee who has been rendered helpless and destitute and respondent-school is ready and willing to absorb her. Respondents are directed to pass orders in her case immediately preferably within four weeks from the date of receipt of writ of this Court. Rule is made absolute accordingly in each petition with no order as to costs. The office is directed to send down the writ to the respondents forthwith.