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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.3512 OF 2022
Ashwin Gourishankar Kokodde,
Aged about 28 years, Occup.Nil,
R/o Plot No.126-C, Dube Nagar,
Hudkeshwar Road, Nagpur-
440034. Petitioner
-Vs.-
1. Union of India, through its
Secretary, Finance Department,
Vitta Mantralaya, Jeevan Deep
Building, Sansad Marg, New
Delhi-110 001.
2. Chairman-Cum-Managing
Director Canara Bank, 112, J C
Road, Bangaluru-560002
(Karnataka)
3. Deputy General Manager, Canara
Bank, Personnel Management
Section Human Resources Wing,
Head Office, 112, JC Road,
Bangaluru- 560002 (Karnataka).
4. Assistant General Manager,
Canara Bank, HRM Section,
Circle Office Shivaji Road, Near
Mangala Talkies, Shivaji Nagar,
Pune 411005.
5. Senior Branch Manager, Canara
Respondents
Bank (earlier as Syndicate Bank),
Gandhibagh Branch,Nagpur.
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Mr.M.V. Samarth,Sr.Adv. with Mr.V.P. Ingle, Mr.R.M.Fating
counsel for the petitioner.
Ms.Neerja G.Chaubey, counsel for respondent 1.
Mr.M.Y.Wadodkar, counsel for respondent 5.
CORAM: ROHIT B. DEO AND
MRS. VRUSHALI V. JOSHI, JJ.
th
DATE : 26 APRIL, 2023
O R A L J U D G M E N T (Per : Rohit B. Deo, J.)
Heard.
2. Rule. Rule made returnable forthwith. Heard finally
by consent of the learned counsel appearing for the parties.
3. The grievance of the petitioner is that he is refused
appointment on compassionate grounds.
4. The father of the petitioner Mr.Gaurishankar Domaji
Kokade was a Class IV employee of respondent 5-Syndicate
Bank and he died in harness on 04.03.2019.
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5. It is not in dispute that the petitioner submitted an
application dated 18.08.2019, to the Branch Manager seeking
appointment on compassionate grounds. The said application
was forwarded by the Branch Manager to the Regional
Manager with positive recommendation, vide communication
dated 19.08.2019.
6. It appears that the Syndicate Bank kept the
application in cold storage. The Syndicate Bank merged with
Canara Bank with effect from 01.04.2020.
7. At this stage, we may note the policy of the
Syndicate Bank which governed the appointment on
compassionate grounds.
8. As on death of the petitioner’s father, the extant
scheme for compassionate appointment of the Syndicate Bank
provided the eligibility criteria vide Clause-6 which reads
thus:
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6. Eligibility Criteria:
“a. The family is indigent and
deserves immediate assistance for relief
from financial destitution. Accordingly,
appointment on compassionate grounds
will be granted to deserving cases
where the total income of the family
from all source is below Rs.35,000/-per
month.
B. Applicant for compassionate
appointment should be eligible and
suitable for the post in all respects
under the provisions of the relevant
Recruitment Rules”.
9. Plain reading of Clause-6 would suggest that while
the eligibility is that the family of the deceased employee
shall be indigent, the concept of “indigent” is clearly spelt-out
and it is provided that appointment on compassionate
grounds shall be granted if the total income of the family
from all sources is below Rs.35,000/-(Rs.Thirty five thousand
only) per month. Significantly, in contradistinction with the
provisions of certain other schemes, the element of discretion
is reduced, if not obliterated, inasmuch as Clause-6 clearly
provides that a family having monthly income of not more
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than 35,000/- (Thirty five thousand only) shall be deemed
indigent.
10. It is equally significant to note that, the Syndicate
Bank did not inform the petitioner, nor is there any material
on record to suggest, that the Syndicate Bank came to a
conclusion that the family income of the petitioner is more
than Rs.35,000/- (Rs.Thirty five thousand only). It would be
safe to proceed on the premise, that the petitioner was
eligible to be appointed on compassionate grounds in view of
the provisions of Clause-6 of the scheme of the Syndicate
Bank.
11. The rejection of the application preferred by the
petitioner seeking the appointment on compassionate
grounds is by the successor Bank-Canara Bank. Perusal of the
communications impugned would indicate that the Canara
Bank concluded that there were no indigent circumstances
and the case of the petitioner did not fall within the
parameters of the policy.
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12. We have perused the affidavit-in-response dated
09.01.2023 filed on behalf of the respondents 2 to 5.
13. It is submitted in the affidavit-in-response that after
the amalgamation of the Syndicate Bank and the Canara
Bank, unified policy for compassionate appointment was
formulated on 18.04.2020.
14. We may note the provisions of the unified policy in
the interest of clarity. Clause-6 which prescribes the eligibility
criteria provides that family must be indigent, and must
deserve immediate assistance for relief from financial
destitution and the applicant should be otherwise eligible
and suitable for the post. The only significant difference in
the policy of the Syndicate Bank which was holding the field
as on the death of the father of the petitioner, and the unified
policy of the Canara Bank appears to be that the latter policy
omits the reference to the limit of Rs.35,000/- (Rs.Thirty five
thousand only) as regards the monthly income.
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15. In paragraph 11 of the affidavit-in-response an
attempt is made to demonstrate that considering the financial
benefits received by the family of the deceased, the family is
not indigent. The affidavit-in-response notes the following
circumstances as suggesting that the family of the petitioner
is not indigent.
“ a. That the dependents of
deceased Gaurishankar Domaji Kokode
are staying in their own house.
b. The ex-employee, at the time
of his death was over 59 years old and
had left over service of only 4 months.
C. The petitioner son, who has
been nominated for appointment on
compassionate grounds, was 26-years
old at the time of application and is
capable of earning his livelihood.
d. That there are no minor
dependent children.
e. The dependents had received
net terminal benefits amounting to
Rs.11.68 Lakhs. The monthly income
available to dependent family at the time
of death of ex-employee was Rs.22.213/-
including family pension of Rs. 14, 331/-
which is now revised to Rs. 24, 728/-”.
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16. We are not required to delve deeper in the process
of reasoning adopted by the Canara Bank to deny
compassionate appointment. The fact that the retiral benefits
are paid to the family of the deceased may not be decisive,
nor would be the fact that there is no minor in the family.
Inferential and sanctimonious observation that the petitioner
was 26 years old and capable of earning the livelihood, with
due respect to the author of the affidavit-in-response, plainly
ignores the ground realities. Be that as it may, in our
considered view, the pivotal issue would be, whether the
claim to compassionate appointment is required to be
addressed on the basis of the policy of the Syndicate Bank
which was holding the field when the father of the petitioner
died in harness or the policy of the Canara Bank which was
formulated much after the death, albeit, the latter policy
purports to come into effect retrospectively from 05.08.2014.
We need not dilate on the purported retrospective effect to
the unified policy of the Canara Bank given the fact that the
father of the petitioner was not an employee of the Canara
Bank, he was an employee of the Syndicate Bank and while
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the application seeking compassionate appointment was
recommended by the Branch Manager, the Syndicate Bank
sat tight over the matter, and the claim came to be rejected by
the Canara Bank on the premise that the parameters of the
unified policy are not satisfied.
17. The learned Senior counsel Mr.M.V.Samarth would
emphasise that apart from the fact that the relevant date is
the date of the death, the conditions subject to which the
Syndicate Bank amalgamated into the Canara Bank protect
the service conditions of the employees of the erstwhile
Syndicate Bank. The extension of the submission is, that
protection of the service conditions of the employees of the
erstwhile Syndicate Bank ipso facto renders the stand of the
Canara Bank, particularly the reliance on the unified policy of
the Canara Bank, untenable in law.
18.
While we find formidable substance in the
submission canvassed by the learned senior counsel
appearing for the petitioner, in our considered view, the
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petition must succeed on the short ground that the petitioner
was entitled to compassionate appointment on the touchstone
of Clause-6 of the policy of the Syndicate Bank which was
holding the field as on the date of death of his father.
19. The relevant date and event for the application of
such and similar schemes fell for consideration in plethora of
decisions of the Apex Court. The Benches of equal strength of
the Apex Court spoke in different voices. The cleavage of
opinion appears to have been addressed by the three Bench
decision of the Apex Court in N.C.Santosh Vs. State of
Karnataka (2020) 7 SCC 617 which held that the
consideration of the claim shall be on the basis of the norms
prevailing as on the date of death of the employee.
N.C.Santosh (supra) is considered in a relatively recent
decision of the Apex Court in Secretary To Govt. Department
of Education (Primary) and ors. Vs. Bheemesh Alias
Bheemappa 2021 SCC OnLine SC 1264.
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20. In our considered view, the claim of the petitioner
ought to have been considered on the touchstone of the
policy which prevailed as on the date of the death of the
petitioner's father.
21. Having so observed, we further find that it is not
even the case of the respondents that the petitioner was not
eligible in terms of Clause-6 of the policy of the Syndicate
Bank which held the field as on the date of the death of the
petitioner’s father. In this view of the matter, it would not be
necessary to remit the matter to the respondents for revisiting
the issue particularly since the three judge decision in
N.C.Santosh (supra) has resolved the conundrum. We quash
the communications impugned.
22.
We further direct that the claim for compassionate
appointment shall be considered on the touchstone of Clause-
6 of the unified policy and unless the petitioner is otherwise
ineligible, to hold the post, the appointment order shall be
issued within the next eight weeks.
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23. Writ petition is allowed in the aforestated terms.
24. Rule is made absolute in the above terms. No
order as to costs.
(MRS.VRUSHALI V. JOSHI, J) (ROHIT B. DEO)
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.3512 OF 2022
Ashwin Gourishankar Kokodde,
Aged about 28 years, Occup.Nil,
R/o Plot No.126-C, Dube Nagar,
Hudkeshwar Road, Nagpur-
440034. Petitioner
-Vs.-
1. Union of India, through its
Secretary, Finance Department,
Vitta Mantralaya, Jeevan Deep
Building, Sansad Marg, New
Delhi-110 001.
2. Chairman-Cum-Managing
Director Canara Bank, 112, J C
Road, Bangaluru-560002
(Karnataka)
3. Deputy General Manager, Canara
Bank, Personnel Management
Section Human Resources Wing,
Head Office, 112, JC Road,
Bangaluru- 560002 (Karnataka).
4. Assistant General Manager,
Canara Bank, HRM Section,
Circle Office Shivaji Road, Near
Mangala Talkies, Shivaji Nagar,
Pune 411005.
5. Senior Branch Manager, Canara
Respondents
Bank (earlier as Syndicate Bank),
Gandhibagh Branch,Nagpur.
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Mr.M.V. Samarth,Sr.Adv. with Mr.V.P. Ingle, Mr.R.M.Fating
counsel for the petitioner.
Ms.Neerja G.Chaubey, counsel for respondent 1.
Mr.M.Y.Wadodkar, counsel for respondent 5.
CORAM: ROHIT B. DEO AND
MRS. VRUSHALI V. JOSHI, JJ.
th
DATE : 26 APRIL, 2023
O R A L J U D G M E N T (Per : Rohit B. Deo, J.)
Heard.
2. Rule. Rule made returnable forthwith. Heard finally
by consent of the learned counsel appearing for the parties.
3. The grievance of the petitioner is that he is refused
appointment on compassionate grounds.
4. The father of the petitioner Mr.Gaurishankar Domaji
Kokade was a Class IV employee of respondent 5-Syndicate
Bank and he died in harness on 04.03.2019.
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5. It is not in dispute that the petitioner submitted an
application dated 18.08.2019, to the Branch Manager seeking
appointment on compassionate grounds. The said application
was forwarded by the Branch Manager to the Regional
Manager with positive recommendation, vide communication
dated 19.08.2019.
6. It appears that the Syndicate Bank kept the
application in cold storage. The Syndicate Bank merged with
Canara Bank with effect from 01.04.2020.
7. At this stage, we may note the policy of the
Syndicate Bank which governed the appointment on
compassionate grounds.
8. As on death of the petitioner’s father, the extant
scheme for compassionate appointment of the Syndicate Bank
provided the eligibility criteria vide Clause-6 which reads
thus:
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6. Eligibility Criteria:
“a. The family is indigent and
deserves immediate assistance for relief
from financial destitution. Accordingly,
appointment on compassionate grounds
will be granted to deserving cases
where the total income of the family
from all source is below Rs.35,000/-per
month.
B. Applicant for compassionate
appointment should be eligible and
suitable for the post in all respects
under the provisions of the relevant
Recruitment Rules”.
9. Plain reading of Clause-6 would suggest that while
the eligibility is that the family of the deceased employee
shall be indigent, the concept of “indigent” is clearly spelt-out
and it is provided that appointment on compassionate
grounds shall be granted if the total income of the family
from all sources is below Rs.35,000/-(Rs.Thirty five thousand
only) per month. Significantly, in contradistinction with the
provisions of certain other schemes, the element of discretion
is reduced, if not obliterated, inasmuch as Clause-6 clearly
provides that a family having monthly income of not more
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than 35,000/- (Thirty five thousand only) shall be deemed
indigent.
10. It is equally significant to note that, the Syndicate
Bank did not inform the petitioner, nor is there any material
on record to suggest, that the Syndicate Bank came to a
conclusion that the family income of the petitioner is more
than Rs.35,000/- (Rs.Thirty five thousand only). It would be
safe to proceed on the premise, that the petitioner was
eligible to be appointed on compassionate grounds in view of
the provisions of Clause-6 of the scheme of the Syndicate
Bank.
11. The rejection of the application preferred by the
petitioner seeking the appointment on compassionate
grounds is by the successor Bank-Canara Bank. Perusal of the
communications impugned would indicate that the Canara
Bank concluded that there were no indigent circumstances
and the case of the petitioner did not fall within the
parameters of the policy.
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12. We have perused the affidavit-in-response dated
09.01.2023 filed on behalf of the respondents 2 to 5.
13. It is submitted in the affidavit-in-response that after
the amalgamation of the Syndicate Bank and the Canara
Bank, unified policy for compassionate appointment was
formulated on 18.04.2020.
14. We may note the provisions of the unified policy in
the interest of clarity. Clause-6 which prescribes the eligibility
criteria provides that family must be indigent, and must
deserve immediate assistance for relief from financial
destitution and the applicant should be otherwise eligible
and suitable for the post. The only significant difference in
the policy of the Syndicate Bank which was holding the field
as on the death of the father of the petitioner, and the unified
policy of the Canara Bank appears to be that the latter policy
omits the reference to the limit of Rs.35,000/- (Rs.Thirty five
thousand only) as regards the monthly income.
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15. In paragraph 11 of the affidavit-in-response an
attempt is made to demonstrate that considering the financial
benefits received by the family of the deceased, the family is
not indigent. The affidavit-in-response notes the following
circumstances as suggesting that the family of the petitioner
is not indigent.
“ a. That the dependents of
deceased Gaurishankar Domaji Kokode
are staying in their own house.
b. The ex-employee, at the time
of his death was over 59 years old and
had left over service of only 4 months.
C. The petitioner son, who has
been nominated for appointment on
compassionate grounds, was 26-years
old at the time of application and is
capable of earning his livelihood.
d. That there are no minor
dependent children.
e. The dependents had received
net terminal benefits amounting to
Rs.11.68 Lakhs. The monthly income
available to dependent family at the time
of death of ex-employee was Rs.22.213/-
including family pension of Rs. 14, 331/-
which is now revised to Rs. 24, 728/-”.
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16. We are not required to delve deeper in the process
of reasoning adopted by the Canara Bank to deny
compassionate appointment. The fact that the retiral benefits
are paid to the family of the deceased may not be decisive,
nor would be the fact that there is no minor in the family.
Inferential and sanctimonious observation that the petitioner
was 26 years old and capable of earning the livelihood, with
due respect to the author of the affidavit-in-response, plainly
ignores the ground realities. Be that as it may, in our
considered view, the pivotal issue would be, whether the
claim to compassionate appointment is required to be
addressed on the basis of the policy of the Syndicate Bank
which was holding the field when the father of the petitioner
died in harness or the policy of the Canara Bank which was
formulated much after the death, albeit, the latter policy
purports to come into effect retrospectively from 05.08.2014.
We need not dilate on the purported retrospective effect to
the unified policy of the Canara Bank given the fact that the
father of the petitioner was not an employee of the Canara
Bank, he was an employee of the Syndicate Bank and while
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the application seeking compassionate appointment was
recommended by the Branch Manager, the Syndicate Bank
sat tight over the matter, and the claim came to be rejected by
the Canara Bank on the premise that the parameters of the
unified policy are not satisfied.
17. The learned Senior counsel Mr.M.V.Samarth would
emphasise that apart from the fact that the relevant date is
the date of the death, the conditions subject to which the
Syndicate Bank amalgamated into the Canara Bank protect
the service conditions of the employees of the erstwhile
Syndicate Bank. The extension of the submission is, that
protection of the service conditions of the employees of the
erstwhile Syndicate Bank ipso facto renders the stand of the
Canara Bank, particularly the reliance on the unified policy of
the Canara Bank, untenable in law.
18.
While we find formidable substance in the
submission canvassed by the learned senior counsel
appearing for the petitioner, in our considered view, the
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petition must succeed on the short ground that the petitioner
was entitled to compassionate appointment on the touchstone
of Clause-6 of the policy of the Syndicate Bank which was
holding the field as on the date of death of his father.
19. The relevant date and event for the application of
such and similar schemes fell for consideration in plethora of
decisions of the Apex Court. The Benches of equal strength of
the Apex Court spoke in different voices. The cleavage of
opinion appears to have been addressed by the three Bench
decision of the Apex Court in N.C.Santosh Vs. State of
Karnataka (2020) 7 SCC 617 which held that the
consideration of the claim shall be on the basis of the norms
prevailing as on the date of death of the employee.
N.C.Santosh (supra) is considered in a relatively recent
decision of the Apex Court in Secretary To Govt. Department
of Education (Primary) and ors. Vs. Bheemesh Alias
Bheemappa 2021 SCC OnLine SC 1264.
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20. In our considered view, the claim of the petitioner
ought to have been considered on the touchstone of the
policy which prevailed as on the date of the death of the
petitioner's father.
21. Having so observed, we further find that it is not
even the case of the respondents that the petitioner was not
eligible in terms of Clause-6 of the policy of the Syndicate
Bank which held the field as on the date of the death of the
petitioner’s father. In this view of the matter, it would not be
necessary to remit the matter to the respondents for revisiting
the issue particularly since the three judge decision in
N.C.Santosh (supra) has resolved the conundrum. We quash
the communications impugned.
22.
We further direct that the claim for compassionate
appointment shall be considered on the touchstone of Clause-
6 of the unified policy and unless the petitioner is otherwise
ineligible, to hold the post, the appointment order shall be
issued within the next eight weeks.
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23. Writ petition is allowed in the aforestated terms.
24. Rule is made absolute in the above terms. No
order as to costs.
(MRS.VRUSHALI V. JOSHI, J) (ROHIT B. DEO)
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