Full Judgment Text
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CASE NO.:
Appeal (civil) 5256 of 2004
PETITIONER:
Punjab National bank & Ors.
RESPONDENT:
Ashwini Kumar Taneja
DATE OF JUDGMENT: 16/08/2004
BENCH:
ARIJIT PASAYAT & C.K. THAKKER
JUDGMENT:
J U D G M E N T
( Arising out of SLP (C) No. 934/2004)
ARIJIT PASAYAT, J
Leave granted.
Punjab National Bank, (hereinafter referred to as the ’employer’)
calls in question legality of the judgment by a Division Bench of the Rajasthan
High Court at Jodhpur affirming the order passed by learned Single Judge
holding that the respondent herein is entitled to be appointed on compassionate
grounds.
Backgrounds facts in a nutshell are as follows:-
Respondent’s father died on 3.12.1999 while working as a class IV
employee of the employer-Bank leaving behind him, his mother-widow, two sons
and one daughter. On 5.1.2000, the widow of the deceased-employee made a
representation to the Bank on behalf of her elder son, (respondent herein) for
employment on compassionate grounds. The request was turned down on
10.3.2000 and 17.3.2000 on the ground that there was no financial hardship to the
family of the deceased and they had received substantial amounts after the death
of the respondent’s father. A writ petition was filed by the respondent before the
Rajasthan High Court. By order dated 19th August, 2003, the Writ Petition was
allowed with a direction to forthwith consider the case of respondent herein for
compassionate appointment and provide him suitable job. The order was
challenged in Letters Patent Appeal. By the impugned judgment the same was
dismissed. It was held that retiral benefits received by the heirs of the deceased
employee cannot be made a ground for rejecting application for compassionate
appointment.
In support of the appeal learned counsel for the appellants submitted that
the approach of the High Court is erroneous. When the object of compassionate
appointment is kept in view with reference to the amounts received by the heirs
of the deceased-employee, it was submitted that there was no financial hardship.
Learned counsel for the respondent submitted that the amounts like gratuity,
provident fund etc. have no relevance for determining the question whether
compassionate appointment is to be made. It is to be seen that the appointment
on compassionate ground is not a source of recruitment but merely an exception
to the requirement regarding appointments being made on open invitation of
application on merits. Basic intention is that on the death of the employee
concerned his family is not deprived of the means of livelihood. The object is to
enable the family to get over sudden financial crises.
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As was observed in State of Haryana and Ors. v. Rani Devi & Anr. (JT
1996 (6) SCC 646), it need not be pointed out that the claim of person concerned
for appointment on compassionate ground is based on the premises that he was
dependant on the deceased employee. Strictly this claim cannot be upheld on the
touchstone of Articles 14 or 16 of the Constitution of India. However, such claim
is considered as reasonable and permissible on the basis of sudden crisis
occurring in the family of such employee who has served the State and dies while
in service. That is why it is necessary for the authorities to frame rules,
regulations or to issue such administrative orders which can stand the test of
Articles 14 and 16. Appointment on compassionate ground cannot be claimed as
a matter of right. Die-in harness scheme cannot be made applicable to all types of
posts irrespective of the nature of service rendered by the deceased employee. In
Rani Devi’s case (supra) it was held that scheme regarding appointment on
compassionate ground if extended to all types of casual or ad hoc employees
including those who worked as apprentices cannot be justified on constitutional
grounds. In Life Insurance Corporation of India v. Asha Ramchhandra Ambekar
(Mrs.) and Anr. (1994 (2) SCC 718) it was pointed out that High Courts and
Administrative Tribunals cannot confer benediction impelled by sympathetic
considerations to make appointments on compassionate grounds when the
regulations framed in respect thereof do not cover and contemplates such
appointments. It was noted in Umesh Kumar Nagpal v. State of Haryana and
Ors. (1994 (4) SCC 138) that as a rule in public service appointment should be
made strictly on the basis of open invitation of applications and merit. The
appointment on compassionate ground is not another source of recruitment but
merely an exception to the aforesaid requirement taking into consideration the
fact of the death of employee while in service leaving his family without any
means of livelihood. In such cases the object is to enable the family to get over
sudden financial crisis. But such appointments on compassionate ground have to
be made in accordance with the rules, regulations or administrative instructions
taking into consideration the financial condition of the family of the deceased.
In Smt. Sushma Gosain and Ors. v. Union of India and Ors. (1989 (4) SCC
468) it was observed that in all claims of 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 appointments should, therefore, be provided
immediately to redeem the family in distress. The fact that the ward was a minor
at the time of death of his father is no ground, unless the scheme itself envisage
specifically otherwise, to state that as and when such minor becomes a major he
can be appointed without any time consciousness or limit. The above view was
re-iterated in Phoolwati (Smt.) v. Union of India and Ors. (1991 Supp. (2) SCC
689) and Union of India and Ors. v. Bhagwan Singh (1995 (6) SCC 476). In
Director of Education (Secondary) and Anr. v. Pushpendra Kumar and Ors. (1998
(5) SCC 192); it was observed that in matter of compassionate appointment there
cannot be insistence for a particular post. Out of purely humanitarian
consideration and having regard to the fact that unless some source of livelihood
is provided the family would not be able to make both ends meet, provisions are
made for giving appointment to one of the dependants of the deceased who may
be eligible for appointment. Care has, however, to be taken that provision for
ground of compassionate employment which is in the nature of an exception to
the general provisions does not unduly interfere with the right of those other
persons who are eligible for appointment to seek appointment against the post
which would have been available, but for the provision enabling appointment
being made on compassionate grounds of the dependant of the deceased
employee. As it is in the nature of exception to the general provisions it cannot
substitute the provision to which it is an exception and thereby nullify the main
provision by taking away completely the right conferred by the main provision.
In State of U.P. and Ors. v. Paras Nath (1998(2) SCC 412) it was held that
the purpose of providing employment to the dependant of a government servant
dying-in harness in preference to anybody else is to mitigate hardship caused to
the family of the deceased on account of his unexpected death while in service.
To alleviate the distress of the family, such appointments are permissible on
compassionate grounds provided there are Rules providing for such
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appointments. None of these considerations can operate when the application is
made after a long period of time. In that case also the delay was 17 years.
These aspects were highlighted in State of Manipur v. Md. Rajaodin
(2003 (7) SCC 511), State of Haryana & Anr. v. Ankur Gupta (2003 (7) SCC
704), Haryana State Electricity Board v. Naresh Tanwar (1996 (8) SCC 23) and
Haryana State Electricity Board v. Hakim Singh (1997 (8) SCC 85).
One other thing which needs to be considered is whether the retiral benefits
are to be taken into consideration while dealing with prayer for compassionate
appointment. The High Court was of the view that the same was not to be taken
into consideration. The view is contrary to what has been held recently in The
General Manager (D&P.B.) & Ors. v. Kunti Tiwary & Anr. (Civil Appeal 126 of
2004 disposed of on 5.1.2004). It was categorically held that the amounts have to
be taken into consideration. In the instant case, there was a scheme called
’Scheme for Employment of the Dependants of the Employee who die while in
the service of the Bank Service on Compassionate Grounds’ (in short the
’Scheme’) operating in the appellant no. 1\026Bank which categorically provides as
follows :
"FINANCIAL CONDITION OF THE FAMILY
The dependents of an employee dying in harness
may be considered for compassionate appointment
provided the family is without sufficient means of
livelihood, specifically keeping in view the following:
(a) Family pension;
(b) Gratuity amount received;
(c) Employee’s/ Employer’s contribution to PF;
(d) Any compensation paid by the bank or its Welfare
Fund;
(e) Proceeds of LIC policy and other investments of
the deceased employee;
(f) Income for family from other sources;
(g) Employment of other family members;
(h) Size of the family and liabilities, if any, etc."
It is most respectfully submitted that the Board of
Directors of the petitioner bank had approved the
abovesaid scheme, which was based upon the guidelines
circulated by Indian bank Association to all the Public
Sector Banks which in turn are based upon the law laid
down by this Hon’ble Court in the case of Umesh Kumar
Nagpal Vs. State of Haryana & Ors. reported as 1994 (4)
SCC 138. The Scheme after approval was circulated
vide PDCL 6/97 read with PDCL 11/99 dated
17.4.1999."
Learned counsel for the respondent stated that in case of similarly situated
persons compassionate appointments have been made by the Bank. But the
appellants have justified the non-consideration of the respondent’s appointment
on compassionate grounds on the ground that the other cases related to non-
pensionable category and unlike the case of the respondent, the other persons
who were extended the benefits were not receiving any pension .
View taken by the learned Single Judge and affirmed by the Division
Bench by the impugned judgment cannot be sustained and both the order of the
learned Single Judge and the judgment of the Division Bench are accordingly set
aside.
Our judgment, however, will not stand in the way of the respondent’s case
being considered sympathetically under any scheme or by any administrative
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decision in accordance with law.
The appeal is allowed with no orders as to costs.