Research › Search › Judgment

Patna High Court · body

2006 DIGILAW 912 (PAT)

Syed Imteyaz Hussain v. Bank Of Baroda

2006-10-10

S.N.HUSSAIN

body2006
Judgment S.N.Hussain, J. 1. Heard learned Counsel for the petitioner and learned Counsel for the respondent-Bank of Baroda (hereinafter referred to as the Bank for the sake of brevity) and its authorities. 2. This writ petition has beer, filed for a direction to the authorities of the Bank to appoint the petitioner, who was the dependent of a deceased employee of the Bank, on compassionate ground as per the scheme of the Bank dated 18.08.1998 (Annexure 14) and also for holding that the subsequent amended schemes of the Bank dated 26.03.2004 (Annexure 9) and 03.03.2006 (Annexure 13) with respect to compassionate appointments will not be applicable the case of the petitioner. 3. It is not in dispute that the father of the petitioner was a Class-IV employee of the Bank and he died in harness on 02.10.1999 due to Cancer while he was working as Cash-Peon in Sutapatti Muzaffarpur Branch of the Bank. It is also not in dispute that at the time of his death, the father of the petitioner was below 50 years of age and left behind a widow and six minor children as the petitioner being the eldest issue was aged just about 17 years. It is also not in dispute that the date of birth of the petitioner was 01.01.1983 and he was to attain majority (18 years) on 01.01.2001 and hence his mother filed an application for his compassionate appointment in September, 2000, i.e. within one year of the death of her husband, and after attaining majority, the petitioner himself filed applications before the Bank on 13.01.2001 and 19.01.2001 for being appointed on compassionate basis. 4. Learned Counsel for the petitioner submitted that huge amount was spent on the treatment of his father, who was suffering from the dreaded disease of cancer for a long period, and hence the loan taken for his treatment was repaid by the petitioners family from the death-cum-retiral dues received by them, whereafter, the entire family was dependent upon the earnings of the petitioners mother, which was hardly Rs. 500.00 to 600.00 , which she got by teaching Urdu to small children, whereas, other siblings of the petitioner were all minors. 500.00 to 600.00 , which she got by teaching Urdu to small children, whereas, other siblings of the petitioner were all minors. She further submitted that the applications filed by the petitioner and his mother were fully in terms of the Scheme of 1998, Clause V(a) of which specifically provided that (i) request for appointment under the scheme should be received by the Bank within one year from the date of death of the employee and that (ii) where the dependent is a minor or does not possess requisite qualification it shall be considered at the discretion of the Bank within four years of the death of employee to enable him/her to qualify in terms of age and/or qualification provided that the nomination has been received by the bank within one year from the date of death of the employee and documentary evidence of date of birth of the minor is submitted. 5. It was also averred by the learned Counsel for the petitioner that the admitted facts that the father of the petitioner had died in October, 1999, while his age was below 50 years and the request for appointment had been made in September, 2000, whereas, the petitioner had attained majority in January, 2001 and had filed applications with the required evidence in January 2001, itself fully proved that all the requirements of the said Scheme of 1998 were clearly fulfilled by the petitioner, which facts were never disputed by the respondents. Hence, it was submitted that it was the duty of the respondent-authorities to immediately appoint the petitioner on compassionate ground, but they delayed the matter for none of the fault of the petitioner and in the meantime the Scheme of 2004 (Annexure 9) was introduced and the petitioner was directed to take steps in terms of the said Scheme but again in the meantime the scenario changed and another Scheme of 2006 (Annexure 13) was introduced, whereafter past cases were also being dealt with in terms of the said Scheme for payment of Ex-gratia financial relief to the dependents of the deceased employees in place of appointments on compassionate grounds. 6. 6. Learned Counsel for the petitioner further submitted that the said Scheme of the Bank is merely an executive instruction and every statutory Rules are prospective in nature and in case a Rule is expressed in language, which is fairly capable of either interpretation, it ought to be construed as prospective only as has been held in the case of P. Mahendran V/s. State of Karnataka, reported in -. She also stated that similar views have been expressed by the Hon ble Apex Court in the case of A.A. Calton V/s. Director of Education, reported - and also by this High Court in the case of Narendra Deo V/s. State of Bihar, reported in 1999 (1) PLJR 108. 7. Learned Counsel for the petitioner also submitted that in the Scheme of 2004 (Annexure 9), nowhere it is mentioned that the same will have any retrospective effect, whereas in the Scheme of 2006 (Annexure 13) retrospectivity has been vaguely mentioned as only in Clause X(v) thereof it had been mentioned that the said Scheme made on 03.03.2006 will come into force with effect from 04.10.2005. However, she submitted that the case of the petitioner being much prior even to 04.10.2005, it would not come under the purview of the said Scheme of 2006. Only in the covering letter to the said Scheme, it is vaguely mentioned that all the past cases will be dealt with, in terms of "the Scheme for Payment of Ex-gratia Financial Relief to the dependents of deceased employee on compassionate grounds", hence, she stated that this vague statement and that too only in the covering letter signed by the Assistant General Manager cannot be legally valid in view of the specific decisions of the Courts of law deprecating the retrospective application of any statutory Rule what to say about a mere executive instruction. 8. 8. Learned Counsel for the petitioner further averred that from the facts and circumstances of the case, it is quite apparent that the delay was clearly on the part of the authority concerned as the petitioner had fulfilled all the criteria as far back as in January, 2001 Itself, whereafter, it was the duty of the authorities concerned to pass necessary orders in accordance with the Scheme of 1998 (Annexure 14), which was prevalent at the relevant time, but in the instant case, the authorities concerned delayed the matter for more than three years till the Scheme of 2004 (Annexure 9) was introduced, hence, they are legally barred from taking any plea of delay to defeat the claim of the petitioner as has been held by this Court in case of Chandra Bhushan Singh V/s. State of Bihar, reported in 1997(1) PLJR 626. In the said circumstances, learned Counsel for the petitioner prayed that the petitioner be directed to be appointed on compassionate ground as per the Scheme of 1998 (Annexure-14). 9. On the other hand, learned Counsel for the respondents vehemently opposed the contention of learned Counsel for the petitioner and submitted that since the matter of the petitioner remained pending till 2004, his case was considered according to the Scheme of 2004 in view of letter issued by the General Manager on 02.02.2006 (Annexure A) because he fulfilled the criteria fixed as per Clause 1 of the covering letter of the Scheme of 2004. He further stated that the authorities of the Bank started the procedure for the petitioners appointment as per the Scheme of 2004, which is apparent from the letters (Annexures D series), but in the meanwhile the Scheme of 2006 came into force, in which, it was provided that it had come into force with effect from 04.10.2005 in complete supersession of the Scheme of 2004. He also averred that in cases where there is no provision in the Scheme or the Statute regarding retrospectivity only in those matters it cannot be effected retrospectively, but here in the instant case, there is specific provision in Clause X(v) of the Scheme of 2006, as well as in its covering letter dated 03.03.2006 making the rules effective retrospectively. 10. 10. Learned Counsel for the respondents further relied upon two decisions of the Hon ble Apex Court in the case of Commissioner of Public Instructions V/s. K.R. Vishwanath, reported in - and in the case of Umesh Kumar Nagpal v. State of Haryana, reported in (1994) 4 S.C.C. 138 . He submitted that in paragraphs No. 9 to 12 of the first case, various decisions of the Apex Court were considered and it was held that such appointments cannot be considered in terms of the Rules without taking note of the limitation prescribed, whereas, in the second decision, it has been held that the provisions of compassionate employment have necessarily to be made by the Rules or Executive Instruction issued by the Government or the public authority concerned and the object being to enable the family to get over the financial crisis which it faces at the time of the death of the sole bread winner, the compassionate employment cannot be claimed and offered whatever the lapse of time and after the crisis is over as the post is not offered to cater to the status of the applicant, but to see the family through the economic calamity. 11. Learned Counsel for the respondents also stated that inspite of all the aforesaid facts, the Bank found the petitioner fit for compassionate appointment, but the same was jeopardised due to technicality of the new Scheme of 2006, according to which, the petitioner cannot be legally offered any post on the basis of compassionate appointment as per the earlier Scheme of 1998, which had lost its force as far back as in the year 2004. 12. After hearing the learned Counsel for the parties and after perusing the materials on record including the three Schemes of 1998, 2004 and 2006 with respect to compassionate measures for the dependents of the employees of the Bank, who had died in harness, and also after appreciating the specific provisions of law and the case laws cited by the parties, it is quite apparent and is also admitted by both the parties that the initial Scheme of the Bank dated 18.08.1998 (Annexure-14) remained operative till 26.3.2004 when the second Scheme of the Bank dated 26.3.2004 (Annexure-9) was implemented. It is also admitted that during the said period, the father of the petitioner died in harness on 02.10.1999 when he was below fifty years of age and when the petitioner, who was his eldest child, was about 17 years old and an application on his behalf was filed for his appointment on compassionate grounds by his mother in September, 2000 i.e. within one year of the death of her husband, and after attaining majority on 01.01.2001 the petitioner himself filed applications before the Bank in January, 2001 itself. In the aforesaid circumstances, it is not in dispute that the petitioner fulfilled all the requirements for his compassionate appointment in accordance with the provisions of the Scheme of 1998 as far back as in January, 2001 itself, which was much within the period prescribed in the said Scheme. 13. It is thus quite apparent that the Scheme of 1998 remained operative till the next scheme of the Bank dated 26.03.2004 was implemented and hence for more than three years, the respondents did not take any step with respect to the petitioners appointment on compassionate grounds, although admittedly the petitioner had fulfilled all the requirement of his compassionate appointment as per the specific provision of the Scheme of 1998 as far back as in January 2001, itself. These are admitted facts, but the respondents have completely failed to bring forward any reason whatsoever and to explain as to why the petitioners case was not considered and allowed within the aforesaid three years from January, 2001 to March, 2004, when even according to them the petitioner was fit to be, appointed as per the aforesaid scheme. Hence, it cannot be doubted that the petitioner was not appointed during the aforesaid period due to the laches on the part of the respondent-Bank and its authorities because of which the petitioner had to suffer for all these long years, although he was legally entitled to be appointed as per the specific provision of Clause III, IV and V of the Scheme of 1998. In the said circumstances, the respondents are legally barred from taking any plea of delay to defeat the claim of the petitioner as has been held by this Court in case of Chandra Bhushan Singh (Supra), paragraphs 3 and 4 of which state as follows: 3. In the said circumstances, the respondents are legally barred from taking any plea of delay to defeat the claim of the petitioner as has been held by this Court in case of Chandra Bhushan Singh (Supra), paragraphs 3 and 4 of which state as follows: 3. While it is true that in such matters delay in making application defeat the right itself, but that is if the petitioner is guilty of delay in making the application. If the authorities considering the application make an inordinate delay and consequently the delay is on account of circumstances beyond the control of the petitioner, the petitioners right cannot be defeated on the ground of delay caused by the authorities themselves. 4. In these circumstances, this writ petition is allowed and the Compassionate Appointment Committee is directed to consider the case of the petitioner for appointment on compassionate ground in the light of the recommendation made by the Superintendent of Police. This order should be complied with within two months from the date on which a copy of this order is produced before respondent No. 2. 14. So far the Scheme of Bank dated 26.03.2004 is concerned, a bare perusal of the same shows that there is no provision in the said Scheme with regard to its prospective implementation, whereas the process of petitioners appointment had started as far back as in the year 2000 when the earlier Scheme of 1998 was operative. In this regard, reference may be made to paragraph 5 of the decision of the Hon ble Apex Court in case of P. Mahendran (supra) which reads as follows: 5. It is well settled rule of construction that every statute or statutory Rule is prospective unless it is expressly or by necessary implication made to have retrospective effect. Unless there are words in the statute or in the Rules showing the intention to affect existing rights the Rule must be held to be prospective. If a Rule is expressed in language which is fairly capable of either interpretation it ought to be construed as prospective only. In the absence of any express provision or necessary intendment the rule cannot be given retrospective effect except in matter of procedure. The amending Rule of 1987 does not contain any express provision giving the amendment retrospective effect nor there is anything therein showing the necessary intendment for enforcing the Rule with retrospective effect. In the absence of any express provision or necessary intendment the rule cannot be given retrospective effect except in matter of procedure. The amending Rule of 1987 does not contain any express provision giving the amendment retrospective effect nor there is anything therein showing the necessary intendment for enforcing the Rule with retrospective effect. Since the amending Rule was not retrospective, it could not adversely affect the right of those candidates who were qualified for selection and appointment on the date they applied for the post, moreover as the process of selection had already commenced when the amending Rules came into force. The amended Rule could not affect the existing rights of those candidates who were being considered for selection as they possessed the requisite qualifications prescribed by the Rules before its amendment moreover construction of amending Rules should be made in a reasonable manner to avoid unnecessary hardship to those who have no control over the subject matter. 15. Furthermore, in paragraph 5 of another decision of Hon ble Apex Court in case of A.A. Calton (supra) it has been specifically held as follows: It is no doubt true that the Act was amended by U.P. Act 26 of 1975 which came into force on August 18, 1975 taking away the power of the Director to make any appointment u/s. 16-F(4) of the Act in the case of minority institutions. The amending Act did not, however, provide expressly that the amendment in question would apply to pending proceedings u/s. 16-F of the Act. Nor do we find any words in it which by necessary intendment would affect such pending proceedings. The process of selection u/s. 16-F of the Act commencing from the stage of calling for applications for a post up to the date on which the Director becomes entitled to make a selection under sec. 16-F(4) (as it stood then) is an integrated one. At every stage in that process certain rights are created in favour of one or the other of the candidates. sec. 16-F of the Act cannot, therefore, be construed as merely a procedural provision. It is true that the legislature may pass laws with retrospective effect subject to the recognised constitutional limitations. At every stage in that process certain rights are created in favour of one or the other of the candidates. sec. 16-F of the Act cannot, therefore, be construed as merely a procedural provision. It is true that the legislature may pass laws with retrospective effect subject to the recognised constitutional limitations. But it is equally well settled that no retrospective effect should be given to any statutory provision so as to impair or take away an existing right, unless the statute either expressly or by necessary implication directs that it should have such retrospective effect. In the instant case admittedly the proceedings for the selection had commenced in the year 1973 and after the Deputy Director had disapproved the recommendations made by the Selection Committee twice the Director acquired the jurisdiction to make any appointment from amongst the qualified candidates who had applied for the vacancy in question. At the instance of the appellant himself in the earlier writ petition filed by him the High Court had directed the Director to exercise that power. Although the Director in the present case exercised that power subsequent to August 18, 1975 on which date the amendment came into force, it cannot be said that the selection made by him was illegal since the amending law had no retrospective effect. It did not have any effect on the proceedings which had commenced prior to August 18, 1975. Such proceedings had to be continued in accordance with the law as it stood at the commencement of the said proceedings. We do not, therefore, find any substance in the contention of the learned Counsel for the appellant that the law as amended by the U.P. Act 26 of 1975 should have been followed in the present case. 16. In a similar case, these decisions have been followed by this Court in case of Narendra Deo and Ors. (supra). We do not, therefore, find any substance in the contention of the learned Counsel for the appellant that the law as amended by the U.P. Act 26 of 1975 should have been followed in the present case. 16. In a similar case, these decisions have been followed by this Court in case of Narendra Deo and Ors. (supra). Hence, on the basis of the aforesaid views of the Hon ble Apex Court which squarely cover the facts of the instant case it has to be held that when the process of selection/ appointment had started in the year 2000-2001 and the claim of the petitioner was found to be legal and proper, the same had to be decided in accordance with the Scheme of 1998 which was existing during that period, irrespective of the fact that before final order could be passed in the said matter, a subsequent scheme of 2004 came into force having no retrospective effect. 17. So far Scheme of the Bank dated 03.03.2006 is concerned, a bare perusal of the same shows that only a vague mention has been made in Clause X(v) thereof that the said Scheme will come into force with effect from 04.10.2005. Thus, the well settled rule of construction of statute or statutory rule, as upheld in the aforesaid decisions of the Hon ble Apex Court, specifically provide that such statutes or rules are prospective in nature unless it is expressly made to have retrospective effect and if there is any provision of prospectivity in such statute or rule it has to be effected from the date of retrospectively fixed in those statutes or rules. Hence, according to the spirit of law and case laws, no further retrospectivity can be given or presumed while deciding any matter/proceeding which had commenced much prior to that date. 18. Hence, according to the spirit of law and case laws, no further retrospectivity can be given or presumed while deciding any matter/proceeding which had commenced much prior to that date. 18. So far the letter of the Bank dated 03.03.2006 (Annexure-8) is concerned, it is claimed by the respondents that it is the covering letters of the Scheme dated 03.03.2006, but a bare perusal of the same shows that it is not a covering latter rather it is a communication issued to the petitioners mother by the Assistant General Manager in which it was noted that the decision about the past cases was amended by the Board in its meeting held on 09.12.2005 and it has been decided that all the past cases will be dealt with in terms of the Scheme for Payment of Exegratia Financial Relief to the dependents of deceased employee on compassionate grounds framed on the lines of the model Scheme of IBA. Neither any decision of the Board dated 09.12.2005 has been brought on record, nor it can be presumed that after coming into force of the Scheme dated 03.03.2006, the said decision of the Board would have any legal effect. Furthermore, no such provision as stated in the said letter has been made either in the Scheme of 2004 or in the Scheme of 2006 and hence assumption of the Assistant General Manager, who has issued the said letter, is absolutely frivolous, baseless and illegal. Furthermore, an Assistant General Manager had no authority in law to make any addition or subtraction in the Schemes formulated/ framed by the higher authorities. Hence, in my view, the said letter has got no value at all in the eye of law. 19. It is to be noted here that the petitioner has specifically stated that his family has got no other income at all except the meager amount his mother receives f from tuition to small children, whereas petitioners other siblings are younger to him and are minors having no income at all. This fact has not been denied by the respondents. It is to be noted here that the petitioner has specifically stated that his family has got no other income at all except the meager amount his mother receives f from tuition to small children, whereas petitioners other siblings are younger to him and are minors having no income at all. This fact has not been denied by the respondents. Hence, the object of compassionate appointment being to enable the family to get over the financial crisis which it faced at the time of the death of the sole bread earner still exists even after lapse of time which was caused due to none of the petitioners fault, rather due to the laches on the part of the respondents authorities. In the said circumstances, the decisions of the Hon ble Apex Court in cases of Commissioner of Public Instructions (supra) and Umesh Kumar Nagpal (supra) relied upon by the respondents do not help their claim. Furthermore, there is no doubt that the appointments cannot be considered in terms of the Rules without taking note of the limitation prescribed in the Rules which was effective when the application was made, hence even according to the said decision, such appointment has to be made as per the Scheme of 1998. 20. In the aforesaid facts and circumstances as well as the well settled principles of law it has to be held that the Schemes of the Bank dated 26.03.2004 (Annexure-9) and 03-03-2006 (Annexure-13) are not applicable to the case of the petitioner and the respondent-Bank and its authorities are directed to consider the matter of petitioners appointment on compassionate ground as per the Scheme of the Bank dated 18.08.1998 (Annexure-14). Since the matter had already been delayed by the authorities concerned for more than six years, the respondent concerned is directed to pass an appropriate order in that regard in accordance with law and as per the aforesaid directions/ observations within a period of two months from the date of receipt/production of a copy of this order. Accordingly, this writ petition is allowed.