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2001 DIGILAW 1205 (AP)

Abeda Begum v. Chairman, State Bank of India

2001-10-06

S.B.SINHA, V.V.S.RAO

body2001
S. B. SINHA, J. ( 1 ) THE effect of a new scheme framed by the State Bank of India as regards compassionate appointment falls for consideration in this appeal. ( 2 ) ONE Shaik Abdul Basith who was working as Officer-in-charge of State Bank of India, Mahaboobnagar Branch died on 4-1-1997 leaving behind him, his wife and two sons. The 1st appellant-petitioner is the wife and the 2nd appellant is one of the sons. He is a BSc. , graduate and studying LLB. , 2nd year. The 1st appellant made a representation on 17-1-1997 to the 6th respondent to appoint the 2nd appellant in suitable post on compassionate grounds. Again the 2nd appellant submitted the application in prescribed proforma supplied by the 6th respondent, on 24-1-1997. The request of the appellants was rejected by the bank by proceedings dated 18-6-1999. ( 3 ) IT appears that during the pendency of the writ petition interim orders were issued on 21-7-2000 to consider the case of the 2nd appellant as per the scheme of compassionate appointments, but the same was rejected on 29-8-2000. ( 4 ) THE case of the respondents is that a new scheme as regards compassionate appointment came into existence with effect from 8-1-1997 and as per the guidelines issued therein, the family of the deceased is not entitled for compassionate appointment as it was in receipt of terminal benefits to the tune of Rs. 4. 95 lakhs in addition to liquidation of various loans taken by the deceased from the bank and as also on the ground that the family was in receipt of pension @ Rs. 6,032/- per month. The financial condition of the family was not such that the family will not survive if no compassionate employment is provided. ( 5 ) BY the order under appeal the learned single Judge dismissed the writ petition on the ground that as on the date the appellants made application for compassionate appointment, the amended scheme came into existence and, that under the said scheme financial condition of the family was one of the criterion for considering the cases for compassionate appointment. ( 5 ) BY the order under appeal the learned single Judge dismissed the writ petition on the ground that as on the date the appellants made application for compassionate appointment, the amended scheme came into existence and, that under the said scheme financial condition of the family was one of the criterion for considering the cases for compassionate appointment. ( 6 ) THE learned Counsel appearing for the appellants would submit that though the application seeking compassionate appointment was made on 17-1-1997, since the death of the deceased took place on 4-1-1997 i. e. , prior to the coming into force of the amended scheme dated 8-1-1997, the amended scheme has no application to the case of the appellants. He would further urge that no enquiry as regards the financial condition of the family was conducted by the respondents. ( 7 ) THE learned Standing Counsel appearing for the respondents, on the other hand, would submit that the compassionate appointment cannot be claimed as a matter of right and the date of death of the deceased employee is not the criteria and it is only the scheme which is existing as on the date of making the application for appointment that should govern the case of the appellants. Since financial status is one of the criterion laid down for considering the cases under the scheme, the same was taken into consideration by assessing the financial position of the appellants and the authority found that the family doesn t deserve consideration under the scheme and as such there is no illegality or arbitrariness in rejecting the case of the appellants. ( 8 ) EVIDENTLY, the appellants had applied for grant of appointment on compassionate ground only after coming into force of the amended scheme. A son or an unmarried daughter doesn t have any legal right to be appointed on compassionate ground. The contention of the learned Counsel appearing on behalf of the appellants to the effect that the old scheme shall only apply in the facts and circumstances of the case has no substance whatsoever. ( 9 ) A policy decision as regards grant of appointment on compassionate grounds is within the enabling provisions of the State. The contention of the learned Counsel appearing on behalf of the appellants to the effect that the old scheme shall only apply in the facts and circumstances of the case has no substance whatsoever. ( 9 ) A policy decision as regards grant of appointment on compassionate grounds is within the enabling provisions of the State. In K. P. Perumal VA and N Administration, 2000 (1) CHN 866, while considering a question as to whether for the purpose of regularising an encroachment, an earlier policy decision or later policy decision shall prevail, the Calcutta High Court held that a trespasser cannot claim any right over the land but he can merely ask for regularisation in terms of the Government policy on fulfilment of the conditions laid down therein and the date of application shall govern the field. The said decision has been referred to and approved by a Division Bench of the Calcutta High Court in L. T. Governor v. Kulsn Bibi, 2000 (1) ILR Aandn Series 28. ( 10 ) THE discretion of the bank for providing compassionate appointment must thus be exercised only in relation to the policy decision existing at the time of making of the application. ( 11 ) IN terms of the later policy decision of the bank, the following factors are required to be considered: 1. Family pension. 2. Gratuity amount received. 3. Employee s/employer s contribution to Provident Fund. 4. Any compensation paid by the bank or its welfare fund. 5. Proceeds of LIC policies and other investments of the deceased employee. 6. Income of family from other sources. 7. Income of other family members from employment or otherwise. 8. Size of the family and liabilities, if any. ( 12 ) ASSUMING that Clauses 1 to 5 are irrelevant, Clauses 6 to 8 are relevant considerations. Appointment on compassionate ground is made for the purpose of granting immediate relief to a distressed family by reason of death of its bread earner. ( 13 ) IN Umesh Kumar Nagpal v. State of Haryana, (1994) 4 SCC 138 , the Apex Court held: the question relates to the considerations which should guide while giving appointment in public services on compassionate ground. It appears that there has been a good deal of obfuscation on the issue. ( 13 ) IN Umesh Kumar Nagpal v. State of Haryana, (1994) 4 SCC 138 , the Apex Court held: the question relates to the considerations which should guide while giving appointment in public services on compassionate ground. It appears that there has been a good deal of obfuscation on the issue. As a rule, appointments in the public services should be made strictly on the basis of open invitation of applications and merit. No other mode of appointment nor any other consideration is permissible. Neither the Governments nor the public authorities are at liberty to follow any other procedure or relax the qualifications laid down by the rules for the post. However, to this general rule which is to be followed strictly in every case, there are some exceptions carved out in the interests of justice and to meet certain contingencies. One such exception is in favour of the dependants of an employee dying in harness and leaving his family in penury and without any means of livelihood. In such cases, out of pure humanitarian consideration taking into consideration the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made in the rules to provide gainful employment to one of the dependants of the deceased who may be eligible for such employment. The whole object of granting compassionate employment is thus 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. . . . . . . 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. . . . . . . It must be remembered in this connection that as against the destitute family of the deceased there are millions of other families which are equally, if not more destitute. ( 14 ) IN Jagadish Prasad v. State of Bihar, (1996) 1 SCC 301 , the Apex Court reiterated that the object of appointment of a dependant of the deceased employee who die in harness is to relieve unexpected immediate hardship and distress caused to the family by sudden demise of the earning member of the family. ( 15 ) IN State of U. P. v. Paras Nath, (1998) 2 SCG 412, the Apex Court clearly held that the purpose of providing employment to a dependant of a Government servant dying in harness in preference to anybody else, is to mitigate the hardship caused to the family of the employee 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 appointment. ( 16 ) YET again in Sanjay Kumar v. State of Bihar, AIR 2000 SC 2782 = (2000) 7 SCC 192 , the Apex Court has clearly held that compassionate appointment is intended to enable the family of the deceased employee to tide over sudden crisis resulting due to death of the bread earner who had left the family is penury and without any means of livelihood. ( 17 ) TO the same effect is the decision of the Apex Court in Director of Education (Secondary) v. Pushpendra Kumar, (1998) 5 SCC 192 . ( 18 ) THE learned Counsel appearing for the appellants has placed strong reliance upon a recent decision of the Apex Court in Balbir Kaur v. Steel Authority of India Ltd. , 2000 (4) ALD 72 (SC) = (2000)6 SCC 493 . ( 18 ) THE learned Counsel appearing for the appellants has placed strong reliance upon a recent decision of the Apex Court in Balbir Kaur v. Steel Authority of India Ltd. , 2000 (4) ALD 72 (SC) = (2000)6 SCC 493 . In that case the Apex Court was considering a Tripartite agreement entered into by the employer in 1989 introducing a scheme wherein gratuity and provident fund of a deceased employee were to be retained by the authority till the time the deceased employee would have retired on superannuation had he been alive, and in lieu thereof, the family were to get monthly payment and equal to basic pay plus dearness allowance. This is in lieu of benefit of compassionate appointment. However, the earlier 1983 Tripartite Agreement provides for a provision for employment of a dependant of a deceased employee. The 1989 agreement also provided that benefits provided under the previous. . . agreement will continue, unless otherwise specified in this agreement". Having regard to purport of both the schemes, the Apex Court observed: ". . . . . But in our view this Family Benefit scheme cannot be in any way equated with the benefit of compassionate appointments. The sudden jerk in the family by reason of the death of the bread earner can only be absorbed by some lump sum amount being made available to the family. This is rather unfortunate but this is a reality. The feeling of security drops to zero on the death of the bread earner and insecurity thereafter reigns and it is at that juncture if some lump sum amount is made available with a compassionate appointment, the grief stricken family may find some solace to the mental agony and manage its affairs in the normal course of events. It is not that monetary benefit would be the replacement of the bread earner, but that would undoubtedly bring some solace to the situation. ( 19 ) IN the facts and circumstances of the case, the Apex Court held that 1989 agreement did not withdraw benefit of compassionate appointment already available to employees and therefore compassionate appointment could not be denied. Such facts do not exist in the instant case. ( 19 ) IN the facts and circumstances of the case, the Apex Court held that 1989 agreement did not withdraw benefit of compassionate appointment already available to employees and therefore compassionate appointment could not be denied. Such facts do not exist in the instant case. The amended scheme in the instant case came into existence from 8-1-1997 pursuant to the law laid down by the Apex Court in Shri Umesh Kumar Nagpal v. State of Haryana, JT 1994 (3) SC 525. Under the guidelines issued, compassionate appointment will be offered only when the bank is satisfied that the financial condition of the family is such that if the dependant of the deceased is not provided with appointment, the family will not be able to make both ends meet. Therefore, financial status of the family of the deceased is an essential criterion under the amended scheme for providing appointment on compassionate grounds to a member of the deceased family. ( 20 ) FURTHER, as already noticed hereinbefore, the appellants have made application for grant of compassionate appointment on 17-1-1997 by which time the amended scheme had already come into existence. The appointment on compassionate ground is made only by way of an exception to the constitutional mandate contained in Article 16 (2) of the Constitution of India and it cannot be claimed as a matter of right. We, therefore, do not find any error in the order of the learned single Judge. ( 21 ) THE decision of this Court in A, Seshapathi v. Divisional Manager, APSRTC, 1996 (1) ALD 563 , has also no application to the facts of the present case as the issue that arose for consideration therein was whether the members of the family of the various categories of employees made eligible for appointment on compassionate grounds can be denied appointment on the ground that other members of the family of the said categories of employees have already been appointed and working in the Road Transport Corporation. ( 22 ) A Full Bench of this Court in the Government of Andhra Pradesh, General Admn. Department, Rep. by its Secretary, general Admn. ( 22 ) A Full Bench of this Court in the Government of Andhra Pradesh, General Admn. Department, Rep. by its Secretary, general Admn. Department, Secretariat, Hyderabad and 4 others v. D. Gopaiah, Unreported judgment of the Full Bench inwp No. 13489 of 2000 and Batch dated 8-10-2001, has inter alia held that the policy decision of the State as regards the grant of compassionate appointment on medical invalidation is ultra vires Article 16 of the Constitution of India. ( 23 ) FOR the reasons aforesaid, we find no merit in the appeal and it is accordingly dismissed. There shall be no order as to costs.