Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5224 OF 2008
ARISING OUT OF
SPECIAL LEAVE PETITION (CIVIL) NO. 8765 OF 2007
GENERAL MANAGER,
STATE BANK OF INDIA & ORS. … APPELLANTS
VERSUS
ANJU JAIN … RESPONDENT
J U D G M E N T
C.K. THAKKER, J.
1. Leave granted.
2. The present appeal is filed by the
General Manager, State Bank of India (‘the
State Bank’ for short) and others against
judgment and order passed by a Single Judge of
the High Court of Judicature at Allahabad on
March 2, 2006 in C.M.W.P. No. 45006 of 2001 and
2
confirmed by the Division Bench of the said
Court on April 25, 2007 in Special Appeal No.
390 of 2006. By the said order, the High Court
allowed the petition filed by Smt. Anju Jain,
writ-petitioner (respondent herein) and
directed the State Bank to provide her
appointment on compassionate ground on the
death of her husband.
3. Shortly stated the facts of the case
are that Mr. Jain, husband of the respondent-
writ petitioner was working as Assistant with
the State Bank at Karhall Branch, Agra in the
State of U.P. In September, 1995, he was placed
under suspension and charge-sheeted for having
committed gross misconduct of embezzlement/
misappropriation. Departmental inquiry was
instituted against him wherein he was found
guilty. In 1996, on the basis of findings
recorded by the Inquiry Officer and accepted by
the Disciplinary Authority, major punishment
was imposed on him by which his basic pay was
reduced by two stages and five annual future
3
increments were also stopped with cumulative
effect. Husband of the writ-petitioner,
however, died on January 25, 2000 while in
service in the State Bank.
4. The State Bank had framed a scheme for
appointment on compassionate grounds for
dependents of deceased employees/employees
retired on medical grounds with effect from
January 01, 1979. It was modified from time to
time. At the relevant time, when the husband
of the writ-petitioner died (January 25, 2000),
the policy as amended with effect from January
01, 1998 was in force.
5. In accordance with the policy of
giving employment on compassionate ground to
dependents of a deceased employee, the writ-
petitioner, as the widow of the deceased
applied to the State Bank in March, 2000. The
competent authority of the Bank considered the
case of the writ petitioner and keeping in view
the punishment imposed on the deceased
employee, it rejected the prayer of the writ
4
petitioner and informed her that no such
appointment could be given to her. A
representation was made by the writ petitioner
but it was also rejected on July 16, 2001.
6. Aggrieved by the action of the State
Bank, the writ petitioner filed a petition in
the High Court by invoking Article 226 of the
Constitution. A Single Judge of the High Court,
after referring to the scheme of giving
appointment on compassionate grounds to
dependents of deceased employees and also
considering the case of the writ-petitioner,
allowed the petition holding that the writ
petitioner was entitled to the benefit of
appointment on compassionate ground as the
dependent of the deceased employee. The said
right, which had accrued in her favour, could
not be taken away by the State Bank only on the
ground of misconduct on the part of her husband
for which he was punished, observed the Single
Judge. Accordingly, a direction was issued by
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the Single Judge to appoint the writ
petitioner.
7. The State Bank, being aggrieved by the
said order, approached the Division Bench of
the High Court by filing intra-Court appeal but
the Division Bench also confirmed the order
passed by the learned Single Judge and
dismissed the appeal. The said order is
challenged in the present appeal.
8. Notice was issued on May 17, 2007 and
after hearing the parties, the Registry was
directed to place the matter for final hearing
on May 01, 2008. We have accordingly heard
learned counsel for the parties.
9. The learned counsel for the appellant-
Bank contended that the orders passed by the
High Court are illegal, improper and contrary
to law. It was submitted that appointment on
compassionate ground is never considered to be
a right of a dependent of deceased employee. It
is a benefit granted to a dependent of an
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employee who dies in harness and is thus an
exception to the general rule of ‘equality
clause’ guaranteed by Article 14 of the
Constitution. Such appointment, hence, can only
be given in accordance with the policy adopted
or scheme framed by the employer.
10. It was also submitted that if the
employee has committed misconduct for which he
was punished, the dependent of such employee
cannot claim the benefit of appointment on
compassionate ground. According to the counsel,
both the Courts were wholly wrong in holding
that the writ petitioner was sought to be
punished for so called misdeeds of the deceased
employee. The counsel submitted that there was
no question of punishing the writ petitioner in
not granting appointment on compassionate
ground. The husband of the writ petitioner had
committed misconduct which was proved in the
inquiry instituted against him and he was
punished. As per the policy, the writ
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petitioner cannot claim appointment on
compassionate ground. There was no accrued
right in favour of the writ-petitioner. The
order passed by the learned Single Judge and
confirmed by the Division Bench, therefore,
deserves to be set aside.
11. Alternatively, it was submitted that
even if a dependent of the deceased employee is
held eligible to get an appointment on
compassionate ground, it is well settled law
that mandamus can be issued against the
employer limited to ordering him to consider
the case of such applicant. No direction can be
issued to appoint the writ-petitioner on
compassionate ground. Even on that count, the
orders are liable to be set aside.
12. The learned counsel for the writ
petitioner, on the other hand, supported the
order passed by the learned Single Judge and
confirmed by the Division Bench. It was
submitted that for the so called misconduct,
the husband of the writ petitioner was already
8
punished. The matter, therefore, ended there.
Thereafter, it was not open to the Bank in the
light of the policy in vogue to refuse
appointment on compassionate ground to deprive
the writ petitioner of such appointment. The
learned Single Judge was, therefore, right in
allowing the petition. And the Division Bench
was not wrong in not interfering with the said
order.
13. The counsel conceded that normally , a
writ Court will direct the employer only to
consider the case of the dependent of deceased
employee for appointment on compassionate
ground. He, however, submitted that on the
facts of the case, the only ground which
weighed with the Bank was that the husband of
the writ petitioner was punished and, hence,
his widow could not be granted the benefit
under the scheme. If in the light of the said
fact, an order was passed to appoint the writ
petitioner, it could not be said that by
issuing such direction, the learned Single
9
Judge had exceeded his jurisdiction. The
Division Bench was, therefore, right in
dismissing the appeal and no interference is
called for in exercise of discretionary
jurisdiction under Article 136 of the
Constitution.
14. Having heard learned counsel for the
parties, in our opinion, the appeal deserves to
be allowed by setting aside the order passed by
the learned Single Judge and confirmed by the
Division Bench.
15. It is an admitted fact that the
husband of the writ petitioner was serving with
the appellant Bank. He indulged in illegalities
and committed misconduct for which departmental
proceedings were initiated against him. An
Inquiry Officer was appointed, who after giving
opportunity of hearing to the deceased
employee, recorded a finding that the charges
levelled against the employee were proved. A
report was submitted by the Inquiry Officer to
the Disciplinary Authority. The Disciplinary
10
Authority, after following the principles of
natural justice and affording opportunity of
hearing to the employee by supplying a copy of
the Inquiry Officer’s report, agreed with the
findings and imposed major penalty by reducing
basic pay of the delinquent by two stages and
stoppage of five annual future increments with
cumulative effect. The said order had attained
finality.
16. It is also not in dispute that in
January, 2000, the employee expired and an
application for appointment on compassionate
ground was submitted by his widow, the writ
petitioner. At that time, the appellant Bank
was governed by scheme which was in force with
effect from January 01, 1978 as amended up to
January 01, 1998.
17. The counsel for the State Bank invited
our attention to the scheme for appointment on
compassionate grounds for dependents of
deceased employees. As per the policy, such
benefit could be granted in certain cases.
11
Para 6 of the scheme laid down ‘Method of
appointment’. Clause (d) of the said para dealt
with cases where disciplinary actions had been
taken against an employee. The said clause
read as under:
(d) In cases where disciplinary action had
been taken against the employee or
disciplinary proceedings were pending/
contemplated against him/her,
appointment of a dependent on
compassionate grounds may be
considered only after obtaining prior
Government concurrence.
18. Since the disciplinary proceedings
against the deceased employee culminated in
major punishment and an application was made by
his widow for appointing her on compassionate
ground, the Bank referred the matter to the
Government of India. The matter was considered
by the Government but it was remitted to the
Bank to take an appropriate decision in
accordance with law.
19. The Bank again considered the proposal
for appointment on compassionate ground of the
writ-petitioner but declined to grant such
12
benefit in view of punishment imposed on her
husband.
20. In para 3 of the communication, dated
January 29, 2001, the Managing Director of the
appellant Bank stated;
“In this connection, we have to advise
that although our scheme for
compassionate appointments does not
explicitly state that the deceased
employee should have had unblemished
service, this is implied: In view of
the gross misconduct of late D.K.
Jain, the competent authority at this
office has declined the proposal for
compassionate appointment of his wife
Smt. Anju Jain in the Bank”.
21. It was submitted on behalf of the Bank
that if the services of the employee were not
fully satisfactory and he was found guilty at
the departmental inquiry and was punished for
misconduct, it was open to the employer not to
grant the benefit of appointment on
compassionate ground to the dependent of such
tainted employee after his death. If on that
ground, an order is passed, it cannot be
13
objected on the ground that no such action
could have been taken.
22. In our opinion, the submission is
well-founded and must be upheld. The learned
counsel for the State Bank also referred to the
scheme for compassionate appointments as framed
in 1979 and amended in 1998 which was further
amended in 2003. The said scheme reads as
“Scheme for compassionate appointments
amendments in respect of cases where the
deceased employee/employees retired on health
grounds had been involved in major/gross
misconduct”.
23.
Certain new provisions were added in
the scheme for compassionate appointments. A
clause relating to ‘exclusions’ was inserted in
para 5 dealing with eligibility. Clause (f)
relating to misconduct of an employee who died
in harness or retired on health ground which
was added, reads as under:
(f) The dependents of an employee who has
died or who has retired on health
grounds and whose service record was
14
blemished on account of disciplinary
action having been taken against him
will be ineligible for compassionate
appointment in the bank.
24. Bare reading of the above clause makes
it abundantly clear that the dependent of an
employee who had died or retired on medical
ground but whose service record was blemished
on account of disciplinary action having been
taken against him will not be considered
eligible for compassionate appointment in the
Bank.
25. As observed earlier, the writ
petitioner approached the High Court relying on
the scheme for compassionate appointment of
1979 as amended with effect from January 01,
1998. It was submitted by her that her husband
was an employee of the Bank, departmental
proceedings were initiated and he was punished.
It was, thereafter, not open to the appellant
Bank to refuse appointment to her on
compassionate ground as she could not be
15
punished for misdeeds alleged to have been
committed by her husband.
26. The submission weighed with the
learned Single Judge who allowed the petition
and observed;
“I have heard learned Counsel for
the parties at length and looked
into the record of the case as well
as the authorities cited by the
learned Counsel for the petitioner
and I find that at the time when
the petitioner applied for
compassionate appointment on the
death of her deceased husband, the
earlier Scheme was applicable to
the petitioner's case and the
amended Scheme came into force from
May, 2002. I am of the view that
the inapplicable provisions of the
clauses of the amended Scheme could
not be taken resort to by the
respondents as a ground to
deprive/scuttle the rightful
benefits that accrued to the
petitioner only due to some charges
of misconduct of the deceased
husband of the petitioner for which
he had already been penalized. No
past acts of misconduct of the
employee who dies in harness can be
taken into account while
considering the case of a family
member for employment on
compassionate ground, as it is not
a benefit provided to the deceased
employee but for providing
immediate succor to its dependents
to survive. The decision of the
16
respondents is impermissible in the
eye of law being in violation of
the principles of natural justice”.
27. The Single Judge, hence, issued the
following directions;
“In the result, the petition
succeeds and is allowed and the
impugned orders dated 21.05.2001
and 16.07.2001 (Annexures No. 2 and
4 to the writ petition) are hereby
quashed. Accordingly the
respondent-Bank is directed to
provide an appointment to the
petitioner on compassionate ground
on account of the death of her
husband, in accordance with law and
in terms of the earlier scheme,
which was in force at that time
within one month from the date a
certified copy of this order is
placed before the concerned
authority-respondent Bank. There
will be no order as to costs.”
28. When the appeal was filed by the State
Bank against the order passed by the Single
Judge, the Division Bench held that the learned
Single Judge was right in issuing necessary
directions and there was no infirmity. The
Division Bench observed;
“From the record, it is evident
that after the death of the said
17
employee, the present appellants
have also changed the scheme and
introduced clause (1) to
appointment on compassionate
grounds. Past misconduct of an
employee who dies in harness should
also be taken into consideration
while considering the application
for compassionate employment of his
dependent. However, the said
amendment in the policy does not
operate retrospectively and the
learned Single Judge has rightly
held that past act of misconduct of
the said employee could not have
been taken into consideration”.
29. We are of the view that both the
Courts were wrong in granting relief to the
writ petitioner. Appointment on compassionate
ground is never considered a right of a person.
In fact, such appointment is violative of rule
of equality enshrined and guaranteed under
Article 14 of the Constitution. As per settled
law, when any appointment is to be made
in Government or semi-Government or in public
office, cases of all eligible candidates must
be considered alike. That is the mandate of
Article 14. Normally , therefore, State or its
instrumentality making any appointment to
18
public office, cannot ignore such mandate. At
the same time, however, in certain
circumstances, appointment on compassionate
ground of dependents of deceased employee is
considered inevitable so that the family of the
deceased employee may not starve. The primary
object of such scheme is to save the bereaved
family from sudden financial crisis occurring
due to death of sole bread earner. It is thus
an exception to the general rule of equality
and not another independent and parallel source
of employment.
30. In our opinion, therefore, if
disciplinary proceedings have been initiated
against an employee and the charges levelled
against such employee are proved and he is
punished, it is indeed a relevant consideration
for not extending the benefit to dependent of
such employee on the ground that he was
punished. To us, it cannot be said that it is a
case of double jeopardy or a dual punishment.
Compassionate appointment is really a
19
concession in favour of dependents of deceased
employee. If during his carrier, he had
committed illegalities and the misconduct is
proved and he is punished, obviously his
dependents cannot claim right to the
employment. With respect, the learned Single
Judge was wholly wrong in observing that such
an action would be violative of principles of
natural justice.
31. To us, the observation of the learned
Single Judge that “no past acts of misconduct
of the employee who dies in harness can be
taken into account while considering the case
of a family member for employment on
compassionate ground” is not in consonance with
law. Past conduct of an employee is undoubtedly
an important consideration. We are also of the
view that the State Bank was right in rejecting
the prayer of the wife of the deceased employee
vide its letter dated January 29, 2001
observing therein that “unblemished service
record is implicit”.
20
32. The learned counsel for the Bank
invited our attention to a decision of the High
Court of Delhi in Suman Lata Yadav v. Union of
India & Anr., (2004) 113 DelLT 152. In that
case, widow of a deceased employee sought
employment on compassionate ground following
death of her husband. The request was declined.
The widow approached the High Court by filing a
writ petition. A counter affidavit was filed by
the Union of India stating therein that on
account of disciplinary proceedings and
punishment meted out to the deceased, the
request of the widow for appointment on
compassionate ground was turned down.
33. It was contended on behalf of the
widow that the action of the Union of India was
illegal and appointment on compassionate ground
could not be denied.
34. Dismissing the petition and negativing
the argument on behalf of the widow, a Single
Judge of the High Court stated;
21
“I am unable to accept this
submission. While it is true that
the prime object is to provide
succour and immediate relief, yet
the deceased's service record or
the factum of disciplinary
proceedings and punishment meted
out to him, cannot be said to be an
irrelevant factor. The possibility
of denial of compassionate
appointment to the LRs of deceased
on account of deceased employee
having a tainted service record,
would serve as a deterrent to
employees from indulging in
misconduct. It can act as an
incentive for those maintaining
discipline and probity. Besides,
when the availability of
appointment and opportunities is
limited, there is nothing wrong in
preferring LRs, of those employees
with clean record over the LRs, of
those, who have had a tainted
record.”
35. In our opinion, the above observations
lay down correct proposition of law and we
approve them.
36. To us, therefore, the State Bank was
right in refusing appointment on compassionate
ground to the widow of deceased employee of the
Bank even under the policy in force in year
2000. We see no illegality in the action. We
22
hold that the learned Single Judge as well as
the Division Bench were not right in observing
that since the deceased employee was
punished, the matter ended there and the
said punishment would be of no consequence so
far as appointment of his dependent on
compassionate ground of the deceased employee
was concerned.
37. Even on second ground, the submission
of the Bank is well-founded. As noted earlier,
the learned Single Judge issued direction to
the Bank to appoint the writ petitioner-widow
of the deceased employee within one month. As
per settled law, a writ of mandamus can be
issued directing the authority to consider the
case of the petitioner for an appointment or
promotion as the case may be but no direction
can be given to appoint or promote a person.
38. In State of Mysore & Anr. v. Syed
Mahmood & Ors., (1968) 3 SCR 363, promotion to
the higher post was to be given on the basis of
seniority-cum-merit . A was not promoted. He,
23
therefore, filed a petition in the High Court
of Mysore by invoking Article 226 of the
Constitution claiming promotion. The High Court
issued a writ of mandamus directing the
Government to promote A . The aggrieved State
approached this Court.
39. Allowing the appeal and setting aside
the direction of the High Court ordering the
State to give promotion, this Court held that
at the most, the High Court could have issued
mandamus directing the State to reconsider the
case of the writ petitioner on the correct
principle. It could not have issued a direction
to the employer to promote the writ petitioner
with retrospective effect. Syed Mahmood was
followed by this Court in several cases.
40. The learned counsel for the
respondent, no doubt, referred to a decision in
State of Bihar v. Dr. Braj Kumar Mishra &
Ors., (1999) 9 SCC 546 wherein this Court held
that normally mandamus can be issued by a writ
Court directing the authority to consider the
24
case of the writ petitioner. In exceptional
circumstances, however, a positive direction
can be issued by granting relief in favour of
the writ petitioner if the Court is otherwise
satisfied.
41. The Court stated;
“It is true that normally the
Court, in exercise of its power
under Article 226/227 of the
Constitution of India, after
quashing the impugned order should
remand the matter to the concerned
authority particularly when such
authority consists of experts for
deciding the issue afresh in
accordance with the directions
issued and the law laid down by it
but in specified cases, as the
instant case, nothing prevented the
Court to issue directions when all
the facts were admitted regarding
the eligibility of the respondent
No, 1 and his possessing of the
requisite qualifications. Remand to
the authorities would have been
merely a ritual and ceremonial.
Keeping in mind the lapses
attributable to the Commission
which had failed to take
appropriate action despite
recommendation made in favour of
the respondent No. 1, the learned
Single Judge as also the Division
Bench of the High Court felt it
necessary to declare the respondent
No. 1-promoter with effect from
1.2.1985. We do not find any
25
illegality or error of
jurisdiction. Learned counsel
appearing for the appellants were
apprehensive that if the impugned
judgment is not set aside, it may
become precedent and in other cases
pertaining to the University, such
directions may be issued in future
also preventing the authorities and
the State Government from
exercising their statutory powers.
The apprehension is misconceived
and without any substance. To allay
even such apprehension we deem it
appropriate to clarify that the
impugned judgment has been passed
under peculiar circumstances of the
case and is no precedent with
respect to the subject regarding
which the appellants have conceived
an apprehension ”.
(emphasis supplied)
42. Apart from the fact that in ‘peculiar
circumstances’, a positive direction was issued
by this Court and it was stated that the
decision ‘is no precedent’ with respect to the
subject, in our opinion, in the present case,
the second stage did not arise at all. As we
have held that even under the policy in force
in 2000, the appellant Bank was wholly right
and fully justified in declining the prayer of
26
the widow of deceased employee in rejecting her
prayer for extending benefit of appointment on
compassionate ground. The orders passed by
both the Courts are, therefore, liable to be
set aside on that ground alone.
43. For the aforesaid reasons, the appeal
is allowed, the order passed by the Single
Judge and confirmed by the Division Bench of
the High Court is set aside and the writ
petition filed by the widow of deceased
employee of the State Bank for getting an
appointment as dependent of deceased employee
on compassionate ground is ordered to be
dismissed.
44. On the facts and in the circumstances
of the case, however, the parties are ordered
to bear their own costs.
…………………………………………………J.
(C.K. THAKKER)
NEW DELHI, …………………………………………………J.
AUGUST 25, 2008. (D.K. JAIN)