Full Judgment Text
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CASE NO.:
Appeal (civil) 3548 of 2006
PETITIONER:
Union Bank of India and Ors.
RESPONDENT:
M.T. Latheesh
DATE OF JUDGMENT: 18/08/2006
BENCH:
Dr. AR. Lakshmanan & Tarun Chatterjee
JUDGMENT:
JUDGMENT
Dr. AR. Lakshmanan, J.
Leave granted.
The present appeal is filed by the Union Bank of India against the final
judgment dated 25.2.2005 of the Division Bench of the High Court of Kerala
at Ernakulam in Writ Appeal No. 883 of 2003 where the High Court has upheld
the judgment of the learned single Judge which ordered the appellant-Bank
to grant employment to the respondent in terms of the directions of the
learned single Judge on compassionate grounds.
It is settled law that the compassionate employment has to be granted in
very rare necessitous circumstances.
The appellant-Bank in order to reduce the individual human discretion, had
formulated a Scheme for employment on compassionate grounds in terms of the
judgment of this Court in Umesh Kumar Nagpal v. State of Haryana and Ors.,
[1994] 4 SCC 138. The Scheme provides that the compassionate employment is
meant only for cases where the bereaved person’s family is in grave penury.
The Scheme further provides the system for computation of the financial
condition of the concerned family including the various heads of recurring
and fixed incomes receivable by the family to determine their entitlement
for the compassionate employment. It is pertinent to mention that the
pension was not payable in the Bank prior to 1994 when an option for the
same was given to the employees for the first time. The availability of
pension to the family of the deceased employee is also one of financial
parameters for computation of the financial condition of the family
because, as aforesaid, the said option was exercised by less than half of
the employees. The said Scheme was subsequently amended in 2003 to provide
cash compensation in some of the deserving cases, who were otherwise
qualified as per income norms, when the compassionate was not feasible.
As already noticed, the Bank circulated a Scheme for appointment of
dependants of deceased employees on compassionate grounds. A copy of the
Circular and the Scheme annexed to the same is annexed as Annexure P-1
collectively.
Some of the salient feactures of the Scheme read thus:
"Union Bank of India
Department of Personnel
Personnel Policy Section
Scheme For Appointment of Dependant of Deceased Employees on Compassionate
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Grounds.
Whereas it is deemed expedient and necessary to provide for
appointment of dependants of deceased employees dying in harness
and leaving his/her family in penury and without any means of
livelihood the Bank hereby frames the following scheme providing
for and regulating the method of appointment in the
clerical/subordinate cadre on compassionate grounds of widow,
widowers and children/dependents of its employees who die while in
service.
1. Short Title and Commencement
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2. Definitions
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3. Appointment Under The Scheme:
The Bank may, in its discretion, appoint in the Bank in any of the posts
mentioned hereunder, the widow or widow or widower or son (includes legally
adopted son) or a daughter of a deceased employee of the Bank or a near
relative indicated by the widow/widower (in case the deceased employee has
left behind no chrildren of his own eligible for appointment) on whom
she/he will be wholly dependent and who would give in writing that he/she
will look after the family of the deceased employee, if the widow or
widower or son or daughter or a near relative, as the case may be, fulfils
the criteria for appointment under the Scheme.
Where the deceased employee was a widow/widower the Bank may
exercise its discretion to appoint the next elder in the family.
However, in the case of an unmarried deceased employees, the Bank
may exercise its discretion to appoint his/her brother or sister
subject to clause 5(iii) and (iv) of the Scheme. In the case of a
widower, however, (a husband of a deceased female employee) will be
considered for appointment on compassionate grounds, only if he was
fully dependant upon his wife and is incapable of maintaining
himself either for the reason of accident or sickness or otherwise.
Such candidate, however, will be eligible for appointment subject
to his being found suitable for appointment so as to discharge his
duties in the normal circumstances.
The appointment under this Scheme shall be made in clerical and
sub-ordinate cadres, which is as under:
(i) Cashier-cum-Clerk/Typist-cum-Clerk/Telephone Operator.
(ii) Stenographer and such other posts in clerical cadre.
(iii) Subordinate Staff.
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4. Sanction For Appointment
Appointment under the Scheme will be made by the Competent Authority. The
object of granting compassionate appointment to the dependant of the
deceased employee is to enable the family to tide over the sudden crisis,
compassionate appointment will be offered by the Bank only in the case
where the Bank is satisfied that the financial condition of the family is
such that but for the prrovision of employment, the family will not be able
to meet the crisis. While considering such appointment the competent
Authority will take into account the following to determine the financial
condition of the family:-
(a) Family Pension
(b) Gratuity
(c) Employees’s/Employer’s contribution to the Provident Fund
(d) Any compensation paid by the Bank or its Welfare Fund
(e) Proceeds of LIC Policy and other investments of the deceased
employees
(f) Income for family from other sources
(g) Employment of other family members
(h) Size of the family and liabilities, if any, etc."
The father of the respondent who was working as a Clerk-cum-Cashier in the
Bank died on 12.8.2001. He was a pension optee.
On 12.1.2002, the respondent applied for employment in the Bank on
compassionate ground. The said request for appointment on compassionate
ground was declined by the competent authority of the Bank on the ground
that the respondent’s family was not indigent. The competent Authority took
into consideration the net terminal benefits of Rs. 5,47,495/- received by
the family after deducting the liability including the housing loan and
personal loan. The competent Authority also considered that the family of
the deceased employee at that time had also received monthly family pension
of Rs. 4,468- (which at present is Rs. 5, 176/-).
On 30.7.2002, the respondent filed a writ petition in the High Court
challenging the rejection order of the Bank to appoint the respondent on
compassionate ground. The Bank filed their counter affidavit to the writ
petition. On 26.3.2003, the learned single Judge of the High Court allowed
the writ petition on the ground that the respondent being eligible as per
the Scheme formulated by the Bank was liable to be appointed on
compassionate grounds. The appellant-Bank filed Writ Appeal No. 883 of 2003
before the Division Bench of the High Court along with a miscellaneous
application being I.A. No. 181 of 2003 for ad-interim stay. The Division
Bench of the High Court dismissed the writ appeal by the impugned judgment.
Aggrieved by the dismissal of the appeal, the Bank has preferred the above
appeal by way of special leave petition in this Court.
We heard Mr. Raju Ramachandran, learned senior counsel assisted by Mr. O.P.
Gaggar, learned counsel appearing for the appellants and Mr. G. Prakash,
learned counsel appearing for the respondent.
Mr. Raju Ramachandran drew our attention to the salient features of the
Scheme for appointment of dependant of deceased employees on compassionate
grounds. He also invited our attention to the pleadings, the judgments
rendered by the learned single Judge and the Division Bench and
demonstrated before us that the criteria fixed for considering eligibility
for compassionate appointment has not been satisifed in this case by the
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respondent and, thereof, the respondent is not entitled to any relief in
the writ petition as prayed for by him. He also submitted that the
compassionate employment in the Bank is meant only for rare cases of
complete penury of the dependants of the deceased employee and in facts and
circumstances of this case where the family of the employee is getting
pension and has other income, such a situation is not present. In support
of his submissions, he relied on the following rulings of this Court:
1. Umesh Kumar Nagpal v. State of Haryana and Ors., [1994] 4 SCC 138.
2. General Manager (D & PB) and Ors. v. Kunti Tiwary and Anr., [2004]
7 SCC 271.
3. Punjab National Bank and Ors. v. Ashwini Kumar Taneja, [2004] 7 SCC
265.
Mr. Raju Ramachandan has also demonstrated before us with facts and figures
that the respondent was not eligible for compassionate employment on the
financial parameters.
Per contra, Mr. G. Prakash, learned counsel appearing for the respondent
submitted that the respondent’s father was sanctioned a total amount of Rs.
5, 06, 910/- under various heads including gratuity, Provident Fund etc.
and that the Provident Fund Scheme was solely based on the employee’s
contribution and out of the total amount mentioned above an amount of Rs.
4,86,000/- was deducted towards liability by the Bank itself and the net
amount received on the death of his father was Rs. 74,910/- and that the
family of the deceased consists of wife, unmarried daughterr and 3
unemployed sons including the respondent herein and the deceased’s wife is
a chronic asthmatic patient and the family is having no earning member and
the sole income is the family pension received by the mother of the
respondent which comes to Rs. 3, 232/- and is likely to be reduced after 7
years. He further submitted that the respondent belongs to the Scheduled
Caste category and that none of his family members is employed and that the
application submitted by the respondent was rejected by the Bank without
giving any reason. After referring to the Scheme formulated by the Bank, he
further submitted that the learned single Judge after taking into
consideration the entire circumstances allowed the writ petition filed by
the respondent directing the Bank to give compassionate appointment and
that the appeal preferred by the Bank was also dismissed by the Division
Bench, therefore, this Court exercising its jurisdiction under Article 136
of the Constitution of India will not interfere with the concurrent
findings rendered by the High Court. He further submitted that the Bank has
given appointment to persons who had recieved financial assistance and were
well of in life. He also placed before us the copies of the appointment
orders issued after rejecting the claim of the respondent to some other
persons on compassionate grounds and that the appointment given will
clearly go against the contention of the Bank that there is no vacancy at
present and the subsequent compassionate appointment given to the
abovementioned persons is discriminatory and is in violation of Articles 14
and 21 of the Constitution of India. When the financial status of the
respondent is compared to the abovementioned persons, the respondent’s
family is having only ten cents of land and a small house situated therein
and is living with the meager income of pension. Concluding his arguments,
he submitted that the contention of the Bank that the respondent is not
entitled for compassionate appointment Scheme is unsustainable and that the
respondent is not given any lump sum payment as offered to the others in
the event of not taking compassionate appointment. He cited the decision of
this Court in Balbir Kaur and Anr. v. Steel Authority of India Ltd and
Ors., [2000] 6 SCC 493 in support of his contention which held that the
denial of compassionate appointment in deserving cases is denial of social
and economic justice as enshrined in the Constitution and that the
respondent is a deserving candidate for compassionate appointment and has
been discrimianted in the matter of appointment by the Bank and both the
learned single Judge and the Judges of the Division Bench concurrently
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found that for eking out livelihood, there is no sufficient income for the
family of the respondent.
We have carefully considered that rival submissions with reference to the
records. The impugned judgment of the Division Bench is based on a number
of wrong facts which are contrary to the facts available on records. First,
the terminal benefits paid to the dependents for deceased employee are Rs.
7,18,751/- which after adjusting the pending housing loan and personal loan
amount comes to Rs. 5,47,495/- This sum was actually paid. Secondly, the
family of the deceased employee was given family pension of Rs. 4,468 (Rs.
3232 basic and Rs. 1236 DA) at the time of death which as of now is Rs. 5,
176/- Thirdly, the mention that the Bank has provided employment to kith
and kins of four dependents of high ranking officers is also wrong. In fact
only three dependents of the deceased employees have been provided
compassionate employment. One of them was a sub-staff employee, lower in
rank than the father of the respondent. Second was dependent of a clerical
staff employee and third is the dependent of a junior most grade officer.
Two of them are scheduled castes. And lastly, the description of the
dependents of the deceased employee is also wrong. The deceased employee is
survived by widow, three sons and one daughter and not one son and three
daughters as held.
The Division Bench, in our opinion, has failed to notice the fact that the
fresh employment with the bank has reduced considerably and the grant of
employment on compassionate grounds to all the cases shall shut the door
for employment to the ever-growing population of unemployed youth more
particuarly when the industry is being asked to reduce the employees by
offering retirement schemes. The Division Bench has failed to appreciate
the fact that the scheme for compassionate employment is very elaborate and
it provides for determination of the financial condition of the financial
conditions of the family on various factors and takes into consideration
the income of the family from all sources. The High Court also has not
noticed that the impugned judgment shall open a Pandora box of litigation
and all the persons who have been denied any such employment shall take
recourse to the similar litigations. This apart, the Division Bench has
also arrived at a wrong finding that the amount of terminal benefits of the
respondent is paltry and calculated family pension of Rs. 100/- per day
thereby holding that the family of the respondent is in penury whereas in
fact the family is receiving monthly pension of Rs. 5,179/- in addition to
the terminal benefits already received. The Bench has also wrongly
considered the basic pension amount of Rs. 3,232/- as the full pension
amount and has ignored the dearness allowance payable on the same. In the
instant case, the Division Bench came to a wrong finding that the terminal
benefits were calculated at Rs. 5,60,910.35 but the family was paid Rs.
74,910/- After adjusting the loan amount, the terminal benefits paid to the
dependants of the deceased employee are Rs. 7,18,751/- which after
adjusting the pending housing loan and personal loan amount are Rs.
5,47,495/- which was actually paid to the family. This lump sum amount
would also generate the reasonable monthly interest amount which was also
considered by the competent authority in computing the recurrent income to
the family. The Division Bench, in our opinion, came to a wrong finding
that the person given employment were kith and kin of four high ranking
officials and erronneously held that the appellant acted arbitarily and
capriciously and was indiferrent to the needs of his employees and caring
only for the high salaried officers of the same bank. It is a matter of
record that the amount of pension alone was about 60% of the last drawn
salary of the deceased employee and besides that the employee’s dependants,
had received a lump sum monetary benefits of Rs. 5,47,495/- after
offsetting the housing loan and personal loan outstanding which could also
generate a substantial monthly income if invested wisely. The High Court
also committed an error in directing the appointment of the respondent
under the new scheme of compassionate appointment 2003 although he was not
eligible to be appointed.
When an employee dies and any one of the dependent mentioned in clause 2
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(c) of the appointment on compassionate ground scheme formulated by the
Bank can forward an application as per the said scheme. Consequently the
dependent does not automically become entitled to get employment. The right
that accrues on the applicant is a right to get preferential treatment
against the general principle of appointment, subject to the discretion of
the Bank. Further the possession of relevant qualification does not create
any vested right on the applicant to get appointed to a post specified by
the scheme.
It is submitted that the dependent of a deceased employee will not get any
vested or hereditary right to succeed the deceased in the matter of
employment. What he is entitled to is a preferential treatment for
appointment as against the general principle of appointment. The employer
is not under obligation to grant appointment to the dependents. The duty of
the employer is only to properly consider the application.
It is also not true that terminal benefits have been the sole reason to
decline appointment to the applicant as stated in the O.P. by the
respondent. According to clause 4 of the Scheme for compassionate
appointment formulated by the Bank, the competent authority would take into
consideration the following factors while considering a claim for
compassionate appointment.
(a) family pension
(b) gratuity
(c) employees contribution to the Provident fund
(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
Thus it is submitted that terminal benefits are not the sole criteria to
judge whether employment is to be granted or not. The respondent Bank takes
into account all the relevant consideration subject to the policy of
appointment to the bank service including computerization and consequential
substantial reduction of staff and also the scheme of voluntary retirement
introduced to reduce the number of employees.
It is submitted that the scheme or compassionate appointment, being an
exception to the general rule of appointment has to be applied cautiously.
For the whole of Kerala the Bank had identified only 4 vacancies in the
category and 4 persons from the sub staff who were waiting for promotion
for a number of years were selected and included in the promotion list. On
account of the earlier order passed by the Court with respect to
compassionate appointment, two persons had to be promoted. Thus out of the
4 eligible persons awaiting promotion only two were given promotion as they
could not be appointed since their place was given on compassionate
appointees.
The Senior Manager (Personnel) of the appellant-Bank filed an additional
affidavit on 11.04.2005 explaining the circumstances under which some
compassionate appointments referred to in the impugned judgment were
granted. It is also a matter of fact that the dependants of three persons
only and not four persons as mentioned in the impugned judgment were
provided with compassionate employment and the three persons are each
dependants of a peon, clerk and a junior most officer and not the high
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ranking or influential persons as mentioned in the impugned judgment and
that two of the said persons belonging to Scheduled Castes.
In the case of those three persons who were provided with compassionate
employment the net terminal benefits of the deceased employee after making
deductions from the liabilities towards the bank for housing loan and other
loan was Rs. 15,684/- Rs. Nil and Rs. Nil respectively. The compassionate
employment to the persons Ms. K.K. Rasanna was provided on reconsideration
of her case as per the directions of the High Court vide judgment dated
21.03.2003 in writ petition No. 22190/2002 filed by her. The other two
cases came up for consideration under the new scheme where on adopting the
criterion fixed in the new scheme, the total income of the family after
clubbing the monthly pension and the interest income on the aforesaid lump
sum terminal benefits was less than 60% of the last drawn salary of the
said employee and therefore the widow became eligible to either a lump sum
payment to make up the deflict of 60% or appointment under new
compassionate employment scheme on being found suitable.
The respondent filed an additional affidavit on 25.11.2004 in the High
Court. The High Court during the course of the hearing of the writ appeal
granted permission to the respondent to file an additional affiadvit
mentioning additional facts in relation to the appointment made by the Bank
under the scheme though terminal and other benefits were given to the
dependants of deceased employees. He furnished certain details in the said
affidavit.
A counter affidavit was filed by the Bank to the said additional affidavit
denying the averments and allegations and also furnishing all the details
as to how the competent authority had declined to give compassionate
appointment to the respondent. Similarly placed persons were offered with
compassionate appointment according to the appellant is not true and in
supersession of the scheme for appointment of dependants of the deceased
employees on compassionate grounds circulated by staff ciruclar No. 4341
dated 19.02.1997 the Bank had formulated a new scheme for compassionate
appointment/relief to dependant of the deceased employees and circulated
through staff circular No. 4989 dated 22.07.2003 which scheme was
implemented with effect from 30.05.2003. The Bank has also explained the
cirucmstances undder which one Smt. Thangan Mohan was granted the benefits
of compassionate appointment and also to Ms. Razna who died in harness
while in the service of the Bank. It was also submitted that the persons of
the choice of the Bank were not granted employment as alleged by the
respondent and that the offer of lump sum financial assistance was on the
basis of the new scheme and that the Bank never treated the respondent in a
discriminatory manner and that no such consideration or preference
prevailed with the Bank as alleged by the respondent.
When the matter was pending in this Court, a rejoinder affidavit on behalf
of the Bank was filed. The total amount sanctioned under different benefits
and credited into the savings bank a/c No. 7088 in the name of the mother
of the respondent at Kannur Branch of the Bank in the following manner.
Sr. No. Date Particulars Amount
i. 24.8.2001 Death Relief Fund Rs. 22,500.00
ii 6.10.2001 LIC (group policy) Rs. 67,226.00
iii 1.11.2001 LIC (group policy) Rs. 1,12,516.00
iv 29.11.2001 Employees Provident Fund Rs. 1,75,666.64
v 12.12.2001 Gratuity Rs. 1,83,001.70
vi 15.1.2002 Leave Encashment Rs. 57,849.00
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vii 18.4.2002 SBS Rs. 99,993.75
Total Rs. 7,18,753.09
Out of the above amount a sum of Rs. 1,03,754/- was adjusted towards the
balance housing loan taken by the deceased employee and a sum of Rs.
67,502/- was adjusted towards the other pending loans leaving a net sum of
Rs. 5,47,495/- in the hands of the widow of the deceased. In fact an
additional sum of Rs. 17,699/- was further paid by the staff members of
bank which was sent by a demand draft number 093408 dated 4.10.2002 though
the same was not pleaded. The said widow placed a sum of Rs. 5,25,00/- in
the fixed deposit in the same branch. The allegation that only a sum of Rs.
74.910 was left with the bereaved family is totally wrong. The widow of the
deceased employee was sanctioned pension of Rs. 4,468/- at the time of the
death and the said pension amount at the time of filing of this petition
was Rs. 5,176 per month. It is pertinent to mention that the family gets a
recurring income on the net terminal benefits of Rs. 5,47,495/- when the
same are invested in any of the investment scheme. The monthly interest
income on the said lump sum benefit at the rate of 9% was calculated to be
Rs. 4,106/-. This coupled with the pension of Rs. 4,468/- at the time of
consideration of his application (Rs. 5,176/- at the time of filing of the
petition) can yield total recurring monthly income of Rs. 8,754/-which was
much more that the last drawn net monthly salary of the deceased employee.
The last drawn salary of the deceased employee after deductions was Rs.
7,477.50 only. Moreover the deceased employee had constructed a house after
taking loan and the said loan, as aforesaid, also stood repaid. Therefore,
the respondent was not found eligible for compassionate employment on the
financial parameter. The competent authority of the bank had to consider
the case of the petitioner as per the laid down parameters more
particularly mentioned in the petition and the recurrent income derivable
by the family. All these factors weighed in the minds of the competent
authority while deciding the case for compassionate employment.
From the foregoing facts and circumstances, it is seen that the
respondent’s case was considered under the old scheme and not under the new
scheme which came in later and in any case the respondent is not entitled
to claim relief under the new scheme also because the financial status of
the family is much above the criterion fixed in the new scheme. It is also
pertinent to mention that in the new scheme only the widow is entitled for
compassionate employment and not the offspring like the respondent. The
respondent, in any case, is dis-entitled to seek employment under the new
scheme. The recent development is that the scheme of compassionate
employment has been completely scrapped in the appellant-Bank w.e.f.
21.12.2005 as circulated vide staff circular 5236 dated 29.12.2005. The
Bank has also specifically denied the averment that the Bank has given
employment to the persons who have recieved financial assistance.
Learned counsel for the respondent contended that the Bank has made several
compassionate appointments quite contrary to the scheme and, therefore, the
respondent should also be considered for such appointment on compassionate
grounds. It is well settled that Article 14 cannot be extended to legalize
illegal orders though others had wrongly got the benefits of that order on
some stray incidents earlier.
This Court in Harpal Kaur Chahal (Smt) v. Director, Punjab Instructions,
Punjab and Anr., [1995] Supp 4 SCC 706 held that illegality once committed
cannot be pleaded to legalize other illegal acts. This Court also held that
where the High Court applying a wrong test found certain ineligible
candidates to be eligible and upheld their appointment, such a judgment
could not constitute a ground for this Court to extend the benefit thereof
to other candidates appointed illegally.
In Gursharan Singh v. New Delhi Municipal Committee, AIR (1996) SC 1175,
this Court held as under:
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"The guarantee of equality before law is a positive concept and it cannot
be enforced by a citizen or Court in a negative manner. To put it in other
words, if an illegality or irregularity has been committed in favour of any
individual or a group of individuals, the others cannot invoke the
jurisdiction of the High Court or of the Supreme Court, that the same
irregularity or illegality be committed by the State or an authority which
can be held to be a State or an authority of the Constitution, so far such
petitioners are concerned, on the reasoning that they have been denied the
benefits which have been extended to others although in an irregular or
illegal manner. Such petitioners can question the validity of orders which
are said to have been passed in favour of persons who were not entitled to
the same but they cannot claim orders which are not sanctioned by law in
their favour on principle of equality before law. Neither Art. 14 of the
Constitution conceives within the equality clause this concept nor Art. 226
empowers the High Court to enforce such claim of equality before law. If
such claims are enforced, it shall amount to directing to continuance and
perpetuate an illegal procedure or an illegal order for extending similar
benefits to others. Before a claim based on equality clause is upheld, it
must be established by the petitioner that his claim being just and legal,
has been denied to him, while it has been extended to others and in this
process there has been a discrimination."
In Umesh Kumar Nagpal v. State of Haryana and Ors., (Supra) this Court
considered a case of compassionate appointment and the factors necessary
for being taken into account before offering compassionate appointment.
This Court held that merely death of an employee does not entitle his
family to compassionate employment and that the authority concerned must
consider as to whether the family of the deceased employee is unable to
meet the financial crisis resulting from the employee’s death. This Court
also held as under:
"The whole object of granting compassionate employment is to enable the
family to tide over the sudden crisis. The object is not to give a member
of such family a post much less a post for post held by the deceased. What
is further, mere death of an employee in harness does not entitle his
family to such source of livelihood. The Government or the public authority
concerned has to examine the financial condition of the family of the
deceased, and it is only if it is satisfied, that but for the provision of
employment, the family will not be able to meet the crisis that a job is to
be offered to the eligible member of the family. The posts in Classes III
and IV are the lowest posts in non-manual and manual categories and hence
they alone can be offered on compassionate grounds, the object being to
relieve the family, of the financial destitution and to help it get over
the emergency."
In General Manger (D&PB) and Ors. v. Kunti Tiwary and Anr., (Supra), the
Chief General Manager of the Bank rejected the application for
compassionate appointment on the ground that the financial condition of the
family could not be termed as to be penurious challenging this order of
rejection the respondent filed a writ petition which was rejected by the
learned Single Judge but the Division Bench, however, overturned the
decision of the learned Single Judge and allowed the appeal and
consequently directed the appellant-Bank to appoint the respondent in
accordance with its policy. This Court held as under:
6. "The policy in question was framed by the appellant Bank pursuant to the
decision of this Court in Umesh Kumar Nagpal v. State of Haryana where this
Court has said that appointment by way of compassionate appointment is an
exception carved out of the general rule for appointment on the basis of
open invitation of application and merit. This exception was to be resorted
to in cases of penury where the dependents of an employee are left without
any means of livelihood and that unless some source of livelihood was
provided a family would not be able to make both ends meet.
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7. In adoption of this principle, an office memorandum was circulated to
all banks on 7-8-1996 emphasising that the observations of this Court
whould have to be complied with. The Indian Banks’ Association also adopted
the directive of this Court in Umesh Kumar Nagpal case in the Scheme which
was proposed for appointment of heirs of deceased employees. In that
proposal it was recommended that in order to determine the financial
condition of the family the following amounts would have to be taken into
account:
(a) Family pension.
(b) Gratuity amount received.
(c) Employee’s/employer’s contribution to provident fund.
(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 of family from other sources.
(g) Employment of other family members.
(h) Size of the family and liabilities, if any, etc.
(8) This recommendation of the Indian Bank Association was accepted in
the Scheme which was finally formulated on 1-1-1998 where the same
criteria for determining the financial condition of the family was laid
down. It may be noted that the express language for appointment on
compassionate grounds reads as follows:
"Appointments in the public services are made strictly on the basis
of open invitiation of applications and merit. However, exception
dying in harnness and leaving their family in penury and without
any means of livelihood.
Punjab National Bank and Ors. v. Ashwini Kumar Taneja, (Supra). This civil
appeal was filed by the PunjabNational Bank in this Court against the High
Court judgment. The compassionate appointment sought by the respondent was
denied by the Bank on the ground that there was no financial hardship to
the family as they had received substantial amount after the death of the
respondent’s father. The High Court directed the respondent-Bank to
consider his case for compassionate appointment. The High Court further
held that the retiral benefits received by the heirs of the deceased
employee would not justify the rejection of the application for
compassionate appointment the bank then filed the present appeal the
appellant’s contended that the approach of the High Court was erroneous and
keeping in view the object of compassionate appointment with reference to
the amounts received by the heirs of the deceased there was no financial
hardship.
Allowing the appeal, this Court held:
"Appointment on compassionate ground is not a source of recruitment but
merely an exception to the requirement of making appointments 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
crisis.
The High Court’s view that the retiral benefits were not to be taken into
consideration while dealing with request for compassionate appointment is
contrary to the decision in Kunti Tiwary case, [2004] 7 SCC 271. In the
instant case, there was a scheme called "Scheme for Employment of the
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Dependants of the Employees Who Die While in the Service of the Bank-
Service on Compassionate Grounds" opertaing in the appellant Bank which
provided for considering the case for compassionate appointment provided
the family was without sufficient means of livelihood specially keeping in
view: family pension, gratuity, provident fund and the amounts recieved
under various other specified heads. Therefore the view taken by the High
Court cannot be sustained."
Learned counsel for the respondent cited the decision in Balbir Kaur v.
Steel Authority of India (Supra) which also deals with compassionate
appointment. In this case, this Court held that the family benefit scheme
assuring monthly payment to the family of the deceased employee was not a
substitute for compassionate appointment and, therefore, compassionate
appointment could not therefore, be denied on the ground that the family
benefit scheme was available and that non-payment of gratuity and provident
fund to the family at the time of death of the employee runs counter to the
object of the beneficial legislation contained in the payment of gratuity
Act and the employees provident fund and Miscellaneous Provisions Act, 1952
and that lump sum payment of provident fund is an insulating factor for the
family to cope with the situation arising out of death of the employees.
This Court also held that the socialistic pattern of society as envisaged
in the constitution has to be attributed its full meaning and that the law
courts cannot be a mute spectator where relief is denied to the horrendous
sufferings of a family which has lost its bread winner and the
constitutional philosophy should be allowed to become part of every man’s
life and then only the constitution can reach everyone. This is a general
observation made by this Court in the context of compassionate appointment.
The above judgment, in our view, is distinguishable on facts and on law.
This apart the case on hand is directly covered by the scheme formulated by
the Bank in regard to the compassionate appointment.
In the present case, by declining the application submitted by the
respondent after the proper consideration of the same in the light of the
relevant parameters the appellant-Bank cannot be said to have acted in an
arbitrary manner regardless of the constitutional principles.
It is also settled law that the specially constituted authorities in the
rules or regulations like the competent authority in this case are better
equipped to decide the cases on facts of the case and their objective
finding arrived on the appreciation of the full fact should not be
disturbed. Learned Single Judge and the Division Bench by directing
appointment has fettered the discretion of the appointing and selecting
authorities the Bank had considered the application of the respondent in
terms of the statutory scheme framed by the Bank for such appointment.
After that even though the Bank found the respondent ineligible for
appointment to its service, the High Court has found him eligible and has
ordered his appointment. This is against the law laid down by this Court.
It is settled law that the principles regarding compassionate appointment
that compassionate appointment being an exception to the general rule the
appointment has to be exercised only in warranting situations and
circumstances existing in granting appointment and guiding factors should
be financial condition of the family. The respondent is not entitled to
claim relief under the new scheme beacuse the financial status of the
family is much above the criterion fixed in the new scheme.
In the result, the appeal is allowed and the orders passed by the learned
Single Judge and of the Division Bench are set aside. However, there will
be no order as to costs.