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2009 DIGILAW 2235 (ALL)

VIJAY LAXMI SRIVASTAVA v. UNION OF INDIA

2009-05-14

RAKESH SHARMA

body2009
JUDGMENT Hon’ble Rakesh Sharma, J.—Heard Sri Shailendra, learned counsel for the petitioner and Sri R.B. Sahai, learned counsel appearing for the Respondents. 2. A widow having six minor children at the time of death of her husband, who was working as a Cashier in the Baroda Eastern Uttar Pradesh Gramin Bank (hereinafter referred to as the Bank), has knocked the doors of this Court by means of the present writ petition seeking compassionate appointment for herself in the light of the relevant scheme which was prevalent in the Bank in the year 2004 at the relevant time that is on 26.10.2004 when she sought such appointment by submitting an application. 3. It emerges from the record that the petitioner’s husband-late Awadhesh Kumar Srivastava, who was the only bread earner of the family, was working as Cashier in the Kshetriya Gramin Bank in the District of Kaushambi. Husband of the petitioner had died on 25.9.2004, while he was in active service of the Bank leaving behind his widow and his six minor children, four sons and two daughters, namely, Amit Kumar Srivastava, Vineet Kumar Srivastava, Akash Kumar Srivastava, Vikash Kumar Srivastava, Km. Akansha Srivastava and Km. Abha Srivastava. The widow of the deceased employee was left to sustain with her six minor children, who were studying in different classes in different institutions and the family for its survival was wholly dependent on the income of the deceased employee. 4. At the relevant time, there was a specific scheme known as “Mritak Karmachariyon Ke Ashriton Ki Anukamba Key Adhar Par Bharti Ki Yojana” was in vogue in the Bank. Petitioner’s case, who had sought compassionate appointment due to death of her husband in harness, was covered by this scheme for which a formal application was submitted by the petitioner on 26.10.2004, after completing all the necessary formalities. This application was duly received by the Bank, but no action was taken on this application nor any orders were passed for more than two years, though reminders were also sent by the petitioner to consider her case for compassionate appointment. The petitioner, for the first time, was informed by the Chief Manager/Mukhya Prabandhak of Baroda Eastern Gramin Bank vide a letter dated 27.1.2007, Annexure-7 to the writ petition, that her case would now be dealt with under the new scheme of 6.12.2006. The petitioner, for the first time, was informed by the Chief Manager/Mukhya Prabandhak of Baroda Eastern Gramin Bank vide a letter dated 27.1.2007, Annexure-7 to the writ petition, that her case would now be dealt with under the new scheme of 6.12.2006. By the said letter, the petitioner was informed that the Board of Directors of the Bank had resolved on 6.12.2006 that the old scheme of compassionate appointment has been wound up and in place of the same a new scheme has been promulgated, a copy of the scheme has been annexed by Sri R.B. Sahai, learned counsel for the Bank, along with his counter affidavit as Annexure-CA-1. 5. It has been brought to the notice of the Court by the learned counsel for the Bank that as per provisions of the new scheme the application for compassionate appointment, if any pending, on the effective date shall be dealt with in accordance with the new scheme spelt out in the resolution of the Board dated 6.12.2006. The petitioner, thus, shall be entitled for a financial package instead of a compassionate appointment as sought by her under the old scheme. Learned counsel for the Bank has placed reliance on judgments reported in AIR 1994 SC 2148 , Life Insurance Corporation of India v. Mrs. Asha Ramchandra Ambekar and another; 2006(1) ADJ 440 (AII)(DB), Abhimanyu Ratan Bhardwaj v. State of U.P. and others; 2006 (1) ADJ 443 (AII(DB), Mishri Lal and others v. Union of India and others and the judgment rendered by a Division Bench of this Court on 1.10.2004 in Special Appeal No. 840 (D) of 2004, Vidhyavrat Rajpoot v. Mukhya Vittiya Adhikari Zila Parishad, Indira Bhawan, U.P. Lucknow and others, copies of which have been annexed alongwith the counter affidavit, in support of his case. 6. Besides to it, he has also filed a supplementary counter affidavit placing before the Court an interim order passed by the Hon’ble Apex Court on 8.12.2008 by which the operation of the judgment and order of a Division Bench of this Court over the compassionate appointment in such circumstances to a candidate in the State Bank of India has been stayed. According to learned counsel appearing for the Bank, the petitioner’s case has to be dealt with in accordance with the new scheme dated 6.12.2006 and not in accordance with the old scheme. 7. According to learned counsel appearing for the Bank, the petitioner’s case has to be dealt with in accordance with the new scheme dated 6.12.2006 and not in accordance with the old scheme. 7. Sri Shailendra, learned counsel for the petitioner, has responded to this argument by submitting before the Court that the petitioner’s husband had died on 25.9.2004 and the petitioner has submitted her application for compassionate appointment on 26.10.2004. While submitting the application, neither the petitioner would have known nor any authority of the Bank could have imagined that some new scheme would be promulgated in the year 2006, that is, after about two years and two months. Her case for compassionate appointment has to be dealt with in accordance with the old scheme, which was prevalent on the date of the death of her husband, who was working as a Cashier of the Gramin Bank, and on the submission of her application on 26.10.2004. The concerned authorities of the Bank were responsible for the delay and keeping the application of the petitioner pending for more than two years to wait for the new scheme to come whereas the petitioner has submitted her application within time immediately after the death of her husband and also after completing all the necessary formalities and as such she cannot be deprived of the compassionate appointment for no fault of hers. 8. Sri Shailendra, learned counsel for the petitioner, has placed reliance on the judgments of the Apex Court reported in JT 2007(3) SC 35, State Bank of India and others v. Jaspal Kaur and (1987) 3 SCC 622 , P.D. Aggarwal and others v. State of U.P. and others, to strengthen his submission that the old scheme which was prevalent on the date of submission of the application by the petitioner would be relevant and such cases cannot be scrutinised in the light of the new scheme which was promulgated subsequently after more than two years. As far as granting of an interim order by the Apex Court is concerned, learned counsel for the petitioner has submitted that granting of an interim order cannot be equated with a final and direct judgment of the Court on the issue as the matter is still sub judice. As far as granting of an interim order by the Apex Court is concerned, learned counsel for the petitioner has submitted that granting of an interim order cannot be equated with a final and direct judgment of the Court on the issue as the matter is still sub judice. He relied upon a judgment of the Apex Court reported in AIR 1992 SC 1439 , M/s. Shree Chamundi Mopeds Ltd. v. Church of South India Trust Association in support of his submission. According to him, the judgment cited by him would still hold the field. 9. Learned counsel for the petitioner has further, by referring to Paragraphs 16 and 17 of the writ petition, brought to the notice of the Court the details of some employees, who died between the year 2002 to 2005, and their dependants have been given compassionate appointments. Paragraphs 16 and 17 of the writ petition are being reproduced below : "16. That the husband of petitioner was expired on 25.9.2004 and in the same week another employee of the department was also expired on 22.9.2004 B.K. Dwivedi he was working as Manager however his son Ramesh Kumar Dwivedi has already given appointment in the month of November, 2005 to that extent application of petitioner also requires to be processed and decided before the year 2005 itself. However, the matter of petitioner has been taken liberally hence that has not been done. 17. That petitioner is further submitting the chart of following employees who have been given appointment in similar cases, their names are as follows : Baroda Eastern U.P. Gramin Bank Erstwhile Bank Name Date of death Date of joining of Of deceased heir of the deceased Pratapgarh Mr. Mayank Tiwari 16.10.2005 16.12.2005 S/o Late B.K. Tiwari Railbareily Smt. Asraf Jamal 30.4.2004 4.1.2005 W/o Late Mohd. Sultan Sultanpur Arvind Kr. Upadhyay 12.7.2004 1.8.2005 S/o Late R.R. Upadhyay Kanpur Suchlata Pathak 16.3.2005 6.9.2005 W/o Late Vipin Chandra Pathak Railbareily Km. Harshita Shukla 22.9.2004 13.10.2005 D/o Late Rajeev Shukla Railbareily Vinay Kumar July, 2002 1.2.2006" S/o Late M.L. Kanojia 10. I have considered the rival submissions advanced by the learned counsel for the parties, perused the record and the judgments cited by the learned counsel for the parties. 11. Harshita Shukla 22.9.2004 13.10.2005 D/o Late Rajeev Shukla Railbareily Vinay Kumar July, 2002 1.2.2006" S/o Late M.L. Kanojia 10. I have considered the rival submissions advanced by the learned counsel for the parties, perused the record and the judgments cited by the learned counsel for the parties. 11. Here is a case of a widow of a Cashier of Gramin Bank, who is seeking compassionate appointment under the relevant scheme prevalent at the relevant time by which compassionate appointment was to be provided to the wards of a deceased employee, who had died in harness. This widow has to sustain herself and her six minor children studying in different classes, after the death of her husband, who was the only bread earner for the family. It is noteworthy that she had submitted her application seeking compassionate appointment on 26.10.2004 after the death of her husband on 25.9.2004 and as such it was incumbent upon the authorities of the respondent-Bank to deal with the matter expeditiously. It was imperative upon the authorities to handle such matters without any delay. No lethargy or inaction is permissible in such cases where a bereaved family is seeking some means to sustain as the family is under perennial situation. Even according to the policies of the Government of India and the State Government, such applications have to be processed expeditiously. 12. The petitioner, a widow of a deceased employee of the Bank, and her six minor children have waited for more than two years for compassionate appointment to be made. The years 2004, 2005 and 2006 have gone in waiting. The Board of Directors of the Bank, some time, on 6.12.2006 had resolved that no compassionate appointment would be made in the Bank, rather a financial package would be given. Are the authorities of the Gramin Bank sought advice of some Astrologer to keep the application of the petitioner pending to wait for the resolution to be passed on 6.12.2006 to deprive of the petitioner, who along with her six minor children, whose sole bread earner has died in harness, benefit of compassionate appointment after the death of her husband. Are the authorities of the Gramin Bank sought advice of some Astrologer to keep the application of the petitioner pending to wait for the resolution to be passed on 6.12.2006 to deprive of the petitioner, who along with her six minor children, whose sole bread earner has died in harness, benefit of compassionate appointment after the death of her husband. Where the authorities of the respondent-Bank knowing that after two years of the death of petitioner’s husband such a resolution came to be passed by the Board of Directors and as such they must withhold the application of the petitioner and not process it and wait for such a resolution to be passed on 6.12.2006. As per the record, reminders were sent by the petitioner to the concerned authorities requesting therein to deal with her application, but no heed was paid by the authorities of the respondent-Bank to the repeated requests of the petitioner. What has happened in this case that her case has been processed after the resolution dated 6.12.2006 was passed and the new scheme has been promulgated. Such inaction and lethargy is not tolerable. This is a sheer example of malice action on the part of the authorities of the respondent-Bank. 13. From the averments made in Paragraphs 16 and 17 of the writ petition, it is evident that the petitioner was purposefully discriminated, while considering her case for compassionate appointment. The Court has also taken note of the fact that in similar circumstances, Mayank Tiwari, Smt. Asraj Jamal, Arvind Kumar Upadhyay, Suchlata Pathak, Km. Harshita Shukla and Vinay Kumar were offered compassionate appointments, while the petitioner was singled out in denying the compassionate appointment for which no reason or justification has been offered in the counter affidavit. Learned counsel appearing for the Bank could not offer any plausible explanation as to why the respondents were sitting over the matter holding the application of the petitioner for compassionate appointment pending for years. The petitioner’s case is squarely covered by the judgments of the Apex Court reported in JT 2007(3) SC 35 and (1987) 3 SCC 622 . 14. In view of the discussions made above, this Court is of the view that the application of the petitioner for compassionate appointment ought to have been processed and dealt with in accordance with the old scheme which was prevalent before 6.12.2006. 14. In view of the discussions made above, this Court is of the view that the application of the petitioner for compassionate appointment ought to have been processed and dealt with in accordance with the old scheme which was prevalent before 6.12.2006. The petitioner has been discriminated purposefully while the other similarly circumstanced persons have been given compassionate appointment. 15. Accordingly, writ petition succeeds and is allowed. Impugned order dated 12.4.2007 (Annexure-9 to the writ petition) is quashed. A writ of mandamus is issued commanding the respondent Nos. 2 and 3 to reconsider the case of the petitioner for offering her compassionate appointment in the light of the observations made in this judgment, after calling for the record and by passing a reasoned and speaking order in accordance with the provisions of the old scheme which was in vogue on 25.9.2004 on the date of death of husband of the petitioner and on 26.10.2004, the date on which the petitioner has submitted her application for compassionate appointment. The whole exercise shall be completed within one month from the date of presentation of a certified copy of this judgment and order. Till an order is passed offering compassionate appointment to the petitioner, no fresh appointments on Ministerial Posts shall be made by the Respondent-Bank in its Eastern U.P. Gramine Bank. ————