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2008 DIGILAW 1117 (PAT)

State Bank Of India v. Vindhwashini Devi

2008-08-08

R.M.LODHA, RAVI RANJAN

body2008
Judgment Ravi Ranjan, J. 1. Letters patent appeal is admitted. 2. Mr. Awadhesh Kumar Mishra waives service for respondent Nos. 1 & 2 (original petitioners). 3. Keeping in view the controversy that has been raised in the appeal, we are satisfied that the appeal deserves to be heard and disposed of at this stage itself. 4. We proceed accordingly. 5. Brajendra Tiwary was an employee in the State Bank of India (for short, the Bank). He died on 24thDecember, 2002. He is survived by his wife and son, who are presently respondent Nos. 1 & 2 (for short, the petitioners). The petitioners made an application for appointment of petitioner No. 2 (son) in the Bank on compassionate ground. In the application, it was stated that after the death of the employee, the family members have been put in condition of penury. 6. That at the time of death of Brajendra Tiwary, the Bank had a Scheme of appointment on compassionate ground is not in dispute. It is also not in dispute that the Bank had superseded its Scheme of appointment on compassionate ground by Page 2988 the Scheme of Payment of Ex-Gratia Lumpsum Amount in lieu of appointment on compassionate ground with effect from 4thAugust, 2005. 7. The case of the petitioners is that petitioner No. 2 was called for interview by the competent authority on 30th August, 2005 for consideration of his case for appointment on compassionate ground. He was asked to come along with the original documents in support of his educational qualification. However, the interview did not take place. Rather, the petitioner No. 2 was advised by the Bank to submit his claim under the Scheme for Payment of Ex-Gratia Lumpsum Amount in lieu of compassionate appointment. The petitioner No. 2 did not lodge the claim under the new Scheme and rather approached this Court by filing the writ petition being CWJC. No. 10249 of 2006. In the writ petition, the petitioners prayed that the Bank may be directed to appoint the petitioner No. 2 on compassionate ground as per the then existing Scheme which was prevalent at the time of death of the employee. 8. The writ petition was contested by the Bank and a counter affidavit was filed on 15th April, 2008. In the writ petition, the petitioners prayed that the Bank may be directed to appoint the petitioner No. 2 on compassionate ground as per the then existing Scheme which was prevalent at the time of death of the employee. 8. The writ petition was contested by the Bank and a counter affidavit was filed on 15th April, 2008. Inter alia, the case was set up by them that the new Scheme for Payment of Ex-Gratia Lumpsum Amount in lieu of appointment on compassionate ground effective from 4th August, 2005, the claim of the petitioner No. 2 for appointment on compassionate ground can not be entertained or considered. The Bank stated that the case of the petitioners shall be considered in accord with the new Scheme for Payment of Ex-Gratia Lumpsum Amount provided he fulfills all the requisite conditions. 9. The single judge heard the counsel for the parties and by his order dated 19th May, 2008 directed the Bank to consider the case of petitioner No. 2 for compassionate appointment as on the date of death of the deceased employee under the policy as then existing and take a final decision in respect thereof within a period of three months from the date of receipt/production of the order of this Court. 10. It needs no elaboration that an appointment on compassionate ground is an exception to the ordinary mode of recruitment. Such appointment is not and cannot be claimed as a matter of right; rather it is always governed by some rule or policy that may have been framed by the employer for that purpose. The State Bank of India had the policy of appointment on compassionate ground which, admittedly, continued for the period 1979 until 3rd August, 2005. Thus, at the time of death of deceased employee on 24th December, 2002, the scheme of appointment on compassionate ground in the Bank was, admittedly, existing. However, the question that falls for our determination is: whether in the light of the new Scheme for Payment of Ex-Gratia Lumpsum amount in lieu of appointment on compassionate ground which came into force on 4th August, 2005, the petitioners could insist for appointment of petitioner No. 2 on compassionate ground on the basis of the then prevalent policy for compassionate appointment in the Bank? 11. 11. The Scheme for Payment of Ex-Gratia Lumpsum amount in lieu of appointment on compassionate grounds in the State Bank of India has replaced the then existing Scheme for appointment on compassionate ground. We deem it proper to refer to some of its clauses which have some bearing for consideration of the issue before us. Page 2989 12. The objective of the new Scheme is set out in Clause (3) which reads thus: Objective: i) The banking scenario in India is undergoing transformation with introduction of modern and state of the art technology, on-line banking, new and technology based products and services. The customers except world class banking services at their convenience any time and anywhere. The State Bank of India has been facing stiff competition from other players in the market and consequently its market share of business has been adversely affected. In the light of the changes in the market place and State Banks aspiration to be one of the world class international bank offering world class services and products to Indian community and with a view to maintain its leadership position in the industry and financial sector, it is migrating its operating platform to core banking solution and has redesigned its process, system and procedure, to be able to offer top-end technology based products and services to its customers any time any where. The branches are being converted into sales and service platforms fully wired and networked with state of the art technology support from centralized processing centres to handle bank processes on a pre-determined turn around time. Our customers are now being offered access to multiple channels, besides branches, like ATMS, net - banking, mobile banking and home banking to choose from depending as per their need and convenience. SBI has also adopted new business model focusing on the core strengths and is in the process of reforming its performance movement system is introducing specilisation to improve the skill and productivity of its employees. ii) The aforesaid changes have resulted in number of manual interventions becoming redundant leading to need for less work force. The new way of doing business has thrown up need for specilisation and power skills. ii) The aforesaid changes have resulted in number of manual interventions becoming redundant leading to need for less work force. The new way of doing business has thrown up need for specilisation and power skills. While the need for fresh induction of the staff in future would be nominal, the new entrants at various levels will have to have the relevant qualifications and skills which will be prerequisite for the jobs that will emerge. In the circumstances, the system of compassionate appointment as per the existing scheme does not serve the Banks needs and requirements and results in supernumerary manpower. iii) The Supreme Court in their above referred judgment in U.K. Nagpal V/s. State of Haryana and Ors. inter alia, observed that the object is not to give a member of such family a post, much less a post for a post held by the deceased, but to provide relief to the family of a deceased employee to tide over the sudden crisis brought about by his/her premature death. The relief envisaged could be of a nature which would provide the distressed family immediate succour and financial assistance to recover from the unexpected deprivation of the income of the sole bread winner of the family. iv) Keeping the above in perspective and with a view to bringing about a balance between the business objectives Bank and its concern towards the families of employees dying in harness, we have devised the following Scheme of Payment of Ex-Gratia Lumpsum Amount in lieu of appointment on compassionate grounds. The revised Scheme would be at supersession of the earlier Compassionate Appointment Scheme Circular vide our letter No. CDO/PM/18/SPL/1900 dated the 11th March, 2003 or any other connected Scheme circulated prior to that. As per the Scheme, request for appointment on compassionate grounds will not be entertained under any circumstance even in the cases of death while on duty/death due to dacoity/robbery/terrorist attack etc., instead, ex-gratia lumpsum amount will be paid to the dependent/s of the employee who dies while in service or prematurely retired Page 2990 due to incapacitation before reaching the 55 years of age, subject to eligibility as laid down in the subsequent paragraphs. Financial relief would provide the distressed family immediate succour and financial support to help them recover from the sudden deprivation of the income of the deceased employee. Financial relief would provide the distressed family immediate succour and financial support to help them recover from the sudden deprivation of the income of the deceased employee. In this connection the Indian Banks Association vide their letter No. PD/CIR-76/532/153 dated 31.07.2004 has circulated Government of India Ministry of Finance letter F No. 18/89/2001-IR dated the 14th July, 2004 and letter F No. 18/89/2001-IR dated the 30th October, 2003 containing a model scheme for payment of monetary assistance in lieu of appointment on compassionate grounds and has suggested that Bank may frame its own scheme based on the aforesaid scheme. 13. Applicability of the Scheme is provided in Clause (5) while Clause (6) provides for eligibility. These Clauses (5) & (6) read thus: 5) APPLICABILITY: The scheme will be applicable in the following cases of employees. (i) Employees dying in harness. (ii) Employees seeking premature retirement due to incapacitation before reaching the age of 55 years. 6) ELIGIBILITY: a) Ex-gratia relief in lieu of compassionate appointment under the scheme is not an entitlement but may be granted at the sole discretion of the Bank in deserving and eligible cases of death in harness and incapacitation leading to premature retirement before 55 years of age, where dependents of such employees are left in penury and without any means of livelihood and that unless some immediate financial succour is provided, a family would not be able to tide over the financial crisis caused by the sudden deprivation of the income of the deceased employee. b) Only Indian citizens will be considered eligible. 14. The quantum of ex-gratia to the members of the family of the deceased employee, who is found eligible, is provided in Clause (8) while Clause (9) deals with determination of financial condition of the family. Clause (12) deals with the aspect to whom ex-gratia relief will be paid. 15. The date of effect of the Scheme and disposal of pending applications is provided in Clause (14). The said clause is quite relevant and we re-produce it as it is: 14) DATE OF EFFECT OF THE SCHEME AND DISPOSAL OF PENDING APPLICATIONS: The Scheme will come into force with effect from the latest is approved by the Executive Committee of the Central Board. The said clause is quite relevant and we re-produce it as it is: 14) DATE OF EFFECT OF THE SCHEME AND DISPOSAL OF PENDING APPLICATIONS: The Scheme will come into force with effect from the latest is approved by the Executive Committee of the Central Board. Applications pending under the Compassionate Appointment Scheme as on the date on which this new Scheme is approved by the Executive Committee of the Central Board will be dealt with in accordance with the new Scheme for payment of ex-gratia lumpsum amount provided they fulfill all the terms and conditions of this Scheme. 16. It would be, thus, seen from Clause (14) that the scheme for ex-gratia payment in lieu of appointment on compassionate ground was made effective from the date it Page 2991 was approved by the Executive Committee of the Central Board. That the Executive Committee of Central Board approved the Scheme on 4th August, 2005 is not in dispute. In categorical terms Clause (14) says that pending applications under the then compassionate appointment Scheme on the date of coming into force of the new Scheme will be dealt with in accord with the new Scheme for Payment of Ex-gratia lumpsum amount on fulfillment of eligibility and conditions prescribed in the Scheme. The new Scheme, therefore, provides for consideration of all pending applications. 17. That the Bank has competence and power to make a provision like this is not challenged by the petitioners. In the entire writ petition, the petitioners have not put in issue the constitutional validity of Clause (14) of the new scheme. Since the legality and constitutionality of Clause (14) has not been challenged by the petitioners and the said Clause holds the field, in our considered view, the Bank cannot be directed to act inconsistent with the new Scheme which had come into operation on 4th August, 2005. 18. We find ourselves unable to countenance the view of the single judge that the eligibility for compassionate appointment shall have to be considered on the basis of policy that was existing at the time of death of the employee and when such an application came to be made. The view of the single judge that any subsequent change in policy shall not affect the right of consideration as per the then Scheme overlooks and ignores Clause (14) of the Scheme that came into effect from 4th August, 2005. 19. The view of the single judge that any subsequent change in policy shall not affect the right of consideration as per the then Scheme overlooks and ignores Clause (14) of the Scheme that came into effect from 4th August, 2005. 19. The plain language of Clause (14) provides that pending applications shall be considered under the new Scheme for payment of ex-gratia lumpsum amount. What more could be the clarity in the intention of the Bank that the erstwhile Scheme of compassionate appointment having been replaced by the new Scheme for payment of ex-gratia lumpsum amount, the pending applications shall be dealt with under the new Scheme. 20. Had the single judge adverted to Clause (14) of the new Scheme, ought we know the view of the single judge could have been otherwise. Be that as it may, we have no hesitation in holding that in terms of Clause (14) of the new Scheme for payment of ex-gratia lumpsum amount effected on 4th August, 2005, no direction could be given to the Bank to consider the case of the petitioner No. 2 in the light of the policy that was existing at the time of death of the employee. 21. Resultantly, this appeal deserves to be allowed and is allowed. The order of the single judge dated 19th May, 2008 is set aside. The writ petition stands dismissed. The parties shall bear their own cost. 22. The Bank shall now consider the case of the petitioners under the new Scheme for payment of ex-gratia lumpsum amount and communicate the decision in this regard to the petitioners as early as possible and in no case later than three months from the date of receipt of the order of this Court.