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Himachal Pradesh High Court · body

2005 DIGILAW 472 (HP)

RAJESH KUMAR v. HIMACHAL GRAMIN BANK

2005-12-14

K.C.SOOD

body2005
JUDGEMENT K C Sood, J. (Oral).: Sagar Singh, father of the petitioner, after retirement from the Army took employment as clerk with the Himachal Gramin Bank, Branch office at Hatgarh in the District of Mandi (respondent No.2 herein). Sagar Singh expired in harness on 18th August 1998. The petitioner applied for the appointment on compassionate ground. Request was rejected by the respondent-Bank by its communication dated 29th December, 1998 (Annexure (P-6). The petitioner was informed that his request has been rejected on the ground that one of the members of his family i.e. his elder brother is already in Government service. The petitioner kept quite for about two years. It was only on 24th April, 2000 he filed this writ petition under Article 226 and 227 of the Constitution of India for direction to the respondent-Bank to appoint the petitioner as Cleric on compassionate ground. 2. The case of the petitioner is that his elder brother Rakesh Kumar is employed in the Army but it has not relevance so far the appointment on compassionate ground is concerned. It is further case of the petitioner that the respondent-Bank has amended its policy for compassionate appointment and therefore the petitioner under the policy is entitled to be appointed on compassionate ground and if such policy has not been amended then such policy is liable to be quashed. 3. The respondent-Bank in its return has taken a stand that the petitioner under the Policy of the Bank, for compassionate appointments, is not eligible to be appointed. The respondent-Bank also pleads that the petition is liable to be dismissed on the ground of delay and latches as the application of the petitioner was rejected on 29th December, 1998 (Annexure P-6). The petitioner kept quite and it was only in April, 2000, that he filed this petition. On merits it is stated that the case of the petitioner for compassionate appointment was considered by the respondent-Bank. It was found that family of Sagar Singh was not suffering- from any financial hardship and that one of the members of the family i.e. the elder brother of the petitioner has already in Government employment and, therefore, the petitioner was not eligible for appointment on compassionate ground under the Scheme/policy of the respondent Bank. 4. It was found that family of Sagar Singh was not suffering- from any financial hardship and that one of the members of the family i.e. the elder brother of the petitioner has already in Government employment and, therefore, the petitioner was not eligible for appointment on compassionate ground under the Scheme/policy of the respondent Bank. 4. It is no longer res-integra that compassionate appointment to a dependent family member of a deceased-employee is to enable the family to tide over sudden crises due to death of the bread earner. Under the scheme of the Bank, (which has been approved by the Reserve Bank of (India) employment can be given to another son or daughter of a deceased-employee after taking into consideration the individual circumstances of each case i.e. the income of the member of the family already employed, the size of the family, the assets and liabilities of the family. 5. There is nothing in the writ petition or on record to show that the family of the deceased-employee were or are at the verge of starvation in the absence of employment to the second son. It is also not the case of the petitioner that his elder brother is not maintaining the family. 6. The Supreme Court in General Manager (D&PB) and others vs Kunti Tiwary and another (2004) 7 Supreme Court Cases 271 referred to Umesh Kumar Nagpal vs. State of Haryana (1994) 4 SCC 138 where the court said that employment 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. The exception is to be restored to only in cases of penury where the dependants of an employee are left without any means of livelihood and that unless some source of livelihood was proved a family would not be able to make both ends meet. This principle was adopted by an office memorandum which was circulated to all the Banks on 7.8.1996 emphasizing that the observations of the Court would have to be complied with. The Indian Banks Association also adopted the directive in Umesh Kumar Nagpal" in the scheme providing for employment on compassionate grounds. This principle was adopted by an office memorandum which was circulated to all the Banks on 7.8.1996 emphasizing that the observations of the Court would have to be complied with. The Indian Banks Association also adopted the directive in Umesh Kumar Nagpal" in the scheme providing for employment on compassionate grounds. This, policy was circulated by the Banks in view of the observations of the Supreme Court in Umesh Kumar Nagpal case which provides that while considering financial condition of the family, the following amounts would have to be taken into consideration. a) Family Pension b) Gratuity amount received c) Employees/ employers 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. 7. A reading of the policy shows that for appointment in the public services are made strictly on the basis of open invitation of application and merit. The exception is made in favour of the dependants of employees dying in harness and leaving their family in penury and without any means of livelihood. 8. This position was reiterated by the Apex Court in Punjab National Bank and others vs Ashwani Kumar Taneja (2004) 7 Supreme Court Cases 265. In that case, the father of the respondent expired on December 3, 1999 while working as a Class IV employee of the Bank leaving behind him, his mother, widow, two sons and one daughter. On January 5, 2000, the widow of the deceased employee made a representation to the Bank for employment of her elder son on compassionate grounds, the request was turned down on the ground that there was no financial hardship to the family of the deceased and they had received substantial amounts after the death of respondents father. A writ petition was filed by the respondent before the Rajasthan High Court which was allowed with the direction to forthwith consider the case of the respondent for compassionate appointment. The order was challenged in Letters Patent Appeal. A writ petition was filed by the respondent before the Rajasthan High Court which was allowed with the direction to forthwith consider the case of the respondent for compassionate appointment. The order was challenged in Letters Patent Appeal. The appeal was dismissed observing that the retiral benefits received by the heirs of deceased employee cannot be made a ground for rejecting the application for compassionate appointment The Apex Court in an appeal by the Bank, relying upon State of Haryana vs. Rani Devi (1996) S SCC 308 observed that the claim of the person concerned for appointment on compassionate ground is based on the premises that he was dependent on the deceased employee. Strictly, this claim cannot be upheld on the touchstone on Article 14 and 16 of the Constitution of India though such claim is considered as reasonable and permissible on the basis of sudden crises occurring in the family of such employee who has served and also while in service. That is why it is necessary for the authorities to frame rules, regulations or to issue such administrative orders which can stand the test of Articles 14 and 16. Their Lordships held that appointment on compassionate grounds cannot be claimed as a matter of right and reiterated that retiral benefits are necessarily to be taken into consideration while considering the prayer for compassionate appointment Their Lordships also - observed that Board of Directors of the petitioner Bank, as in the present case, had approved the Scheme which provides for consideration of the retiral benefits including other sources of income of the family. 9. In the present case, the definite stand of the respondent-Bank is that the petitioner is not covered under the scheme for appointment on compassionate ground. The petitioner has chosen not to file any rejoinder to the reply filed by the respondent-Bank. In this view of the matter, the petitioner is not entitled for appointment on compassionate grounds. 10. Learned counsel for the petitioner by relying upon Govind Prakash Verma vs. Life Insurance Corporation of India and another (2005) 10 Supreme Court Cases 289 contends that the mere employment to another family member is no ground for rejection of the claim of the petitioner for appointment on compassionate ground. Learned counsel has also relied upon a decision of this Court dated 16th December, 1993 rendered in CWP No. 778 of 1992. Learned counsel has also relied upon a decision of this Court dated 16th December, 1993 rendered in CWP No. 778 of 1992. However, in view of the law laid down by the Honble Apex Court and the act that the Scheme does not cover the case of the petitioner, the authorities relied upon by that the petitioner would not be applicable in the facts and circumstances of the case. 11. No other point is urged. 12. In result, the petition fails and is dismissed. No costs.