C.L. Soni, J.This Appeal under Clause 15 of the Letters Patent is directed against the Order dated 11.12.2008 passed by the learned Single Judge of this Court in the Petition preferred by Respondent No. 1 under Article 226 of the Constitution of India seeking direction to the Appellants to appoint the Respondent No. 1 on the post of Peon in Respondent No. 2-School (Original Respondent No. 4) on compassionate ground. The learned Single Judge has held that in view of the decision of this Court dated 4.7.1992 in Special Civil Application No. 5365 of 1992 and allied matters [reported in the case of Satyendrakumar Parbatsinh Zala v. Secretary, Educational Department, Gandhinagar and others, 1993 (1) GLR 364, the Application of the Respondent No. 1 is required to be granted. The learned Single Judge, thus, directed the Respondent No. 2 to appoint Respondent No. 1-Original Petitioner as Peon and also to give him notional increments from 4.6.1992 i.e. from the date on which the Petition was admitted and ad-interim relief therein was granted.

2. We have heard learned Advocates for the parties. Learned A.G.P. Mr. Banaji for the Appellants submitted that when the Application of the Original Petitioner for Compassionate Appointment was decided, the Petitioner was not found eligible for the appointment as per the Policy prevailing on the date of taking the decision. Mr. Banaji submitted that the learned Single Judge relying on the earlier decision of this Court, directed that the application of the Petitioner for Compassionate Appointment was required to be granted. Mr. Banaji submitted that it is the Policy prevailing on the date of taking decision which is required to be applied and not the Policy prevailing on the date of making of application. Mr. Banaji submitted that in any view of the matter, the learned Single Judge was not justified in directing to appoint the Petitioner as peon and to give him notional increments from retrospective date in exercise of the powers under Article 226 of the Constitution of India. Mr. Banaji submitted that at the best, the learned Single Judge could have directed the Appellants to reconsider the Application of the Petitioner in light of the prevailing Policy. Mr. Banaji submitted that the Policy for appointment on Compassionate ground is given go-bye and now, as per the existing Policy dated 5.7.2011, the Applications are being considered for grant of ex gratia Compensation in lieu of Compassionate Appointment. Mr. Banaji submitted that this Court in group of Appeals being Letters Patent Appeal No. 2385 of 2009 and allied matters, has considered all earlier decisions on the issue and has taken a view that the Application for Compassionate Appointment is required to be decided as per the Policy prevailing on the date of taking the decision. Mr. Banaji thus urged to allow the Appeal.

3. Learned Advocate Mr. B.P. Jasani appearing for Respondent No. 1 Original Petitioner submitted that the learned Single Judge has rightly taken the view that the Application of the Respondent No. 1 was required to be considered as per the Policy prevailing for Compassionate Appointment on the date when the Petitioner made Application. Mr. Jasani submitted that when the learned Single Judge decided the Petition, the law declared by Honble Supreme Court was to decide the Application as per the Policy prevailing on the date of making the Application, learned Judge therefore committed no error in giving direction for appointment by impugned Order. Mr. Jasani submitted that as per the Judgment in the case of Satyendrakumar Parbatsinh Zala (supra), the Application of the Petitioner was required to be considered under the Policy for Compassionate Appointment. Mr. Jasani submitted that considering the earlier decision of this Court and the Judgments of the Honble Supreme Court, since the learned Single Judge was justified in issuing direction to appoint the Petitioner as Peon and to grant benefit of notional increments from the date of filing the Petition, this Court may not interfere with the impugned Order passed by the learned Single Judge.

4. Having heard the learned Advocates for the parties, it appears that the Application of the Petitioner was not considered by the concerned Authority on the ground that the Policy to give appointment to one of the heirs of Employee died during last five years was no more to be followed. In the decision rendered in Satyendrakumar Parbatsinh Zala (supra), learned Single has held that by Policy under Government Resolution dated 4.7.1988, the Government intended to extend the benefits to the dependents of the Employees, who have died within a period of five years preceding the date of Policy. However, while so holding, learned Single Judge directed to reconsider the Application in Para 17 as under:

"17. 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. 5515/92, the Respondents are directed to consider her case immediately as she is in every respect eligible and is 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 Order 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."

5. Relying on the above referred decision in case of Satyendrakumar Parbatsinh Zala (supra), learned Single Judge has held that the Application of the Petitioner for Compassionate Appointment was required to be considered. However, instead of issuing direction to consider the Application, learned Single Judge directed the Appellants to give Compassionate Appointment to the Petitioner as Peon with further benefit of notional increments from the date of filing the Petition.

6. We find that even if the learned Single Judge was of the view that the Application of the Petitioner was required to be considered as per the Policy prevailing at the time when such Application was made, and on the basis of the Judgment in Satyendrakumar Parbatsinh Zala (supra), then also, at the best, the learned Single Judge could have directed the concerned Authorities to consider the Application of the Petitioner in light of the Policy prevailing for Compassionate Appointment. However, the learned Single Judge has finally accepted the Application of Respondent No. 1 and directed the concerned Authorities to appoint the Petitioner as Peon on compassionate ground with benefit of notional increment. We find that such direction was not called for in exercise of the powers under Article 226 of the Constitution of India. It was required to be left to the concerned Authority to reconsider the Application of the Respondent for Compassionate Appointment in accordance with the Policy prevailing and the Rules for the post in question.

7. In the Policy at Annexure B dated 4.9.1988 under which the Petitioner had made Application for Compassionate Appointment, it is stated in Clause 10 that whatever changes are made in the Policy for the Government Employees, the same shall automatically apply for the Policy at Annexure-B.

8. The Government has now introduced the Policy dated 5.7.2011 providing for ex gratia payment of Compensation in lieu of Compassionate Appointment. In view of such change in Policy for Compassionate Appointment, dependent of Government Employee is now not entitled to Compassionate Appointment.

9. In the case of MGB Gramin Bank Vs. Chakrawarti Singh, , Honble Supreme Court has held and observed in Para 8 to 15 as under:

"8. The Courts and the Tribunals cannot confer benediction impelled by sympathetic considerations to make appointments on compassionate grounds when the regulation framed in respect thereof did not cover and contemplate such appointments.

9. In A. Umarani Vs. Registrar, Cooperative Societies and Others, , while dealing with the issue, this Court held that even the Supreme Court should not exercise the extraordinary jurisdiction under Article 142 issuing a direction to give Compassionate Appointment in contravention of the provisions of the Scheme/Rules etc., as the provisions have to be complied with mandatorily and any appointment given or ordered to be given in violation of the Scheme would be illegal.

10. The word vested is defined in Blacks Law Dictionary (6th Edition) at page 1563, as vested, fixed; accrued; settled; absolute; complete. Having the character or given in the rights of absolute ownership; not contingent; not subject to be defeated by a condition precedent. Rights are vested when right to enjoyment, present or prospective, has become property of some particular person or persons as present interest; mere expectancy of future benefits, or contingent interest in property founded on anticipated continuance of existing laws, does not constitute vested rights

11. In Websters Comprehensive Dictionary (International Edition) at page 1397, vested is defined as Law held by a tenure subject to no contingency; complete; established by law as a permanent right; vested interest. (Vide: Masammat Bibi Sayeeda and Others etc. Vs. State of Bihar and Others, ; and J.S. Yadav Vs. State of U.P. and Another, . Thus, vested right is a right independent of any contingency and it cannot be taken away without consent of the person concerned. Vested right can arise from contract, statute or by operation of law. Unless an accrued or vested right has been derived by a party, the Policy decision/Scheme could be changed. (Vide: Kuldeep Singh Vs. Govt. of NCT of Delhi, .

12. A Scheme containing an in pari materia Clause, as is involved in this case was considered by this Court in State Bank of India and Another Vs. Raj Kumar, . 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 Compassionate 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.

14. In view of the above position, the reasoning given by the learned Single Judge as well as by the Division Bench is not sustainable in the eyes of law. The Appeal is allowed and the impugned Judgments of the High Court are set aside.

15. The Respondent may apply for consideration of his case under the new Scheme and the Appellant shall consider his case strictly in accordance with Clause 14 of the said new Scheme within a period of three months from the date of receiving of Application.

With these observations, Appeal stands disposed of."

10. In above such view of the matter, and when more than 20 years have passed after the application of the Petitioner for Compassionate Appointment was rejected, the direction issued by learned Single Judge cannot be allowed to be operated.

11. The impugned Judgment is set aside. The Application of the Respondent No. 1 shall be reconsidered for benefits under the existing Policy and the Appellants shall take decision in accordance with law at the earliest, not later than 3 months from the date of receipt of Order of this Court. Appeal disposed of accordingly. In view of the Order passed in Appeal, the Civil Application shall not survive. Hence, the Civil Application stands disposed of accordingly.