Research › Search › Judgment

Rajasthan High Court · body

2012 DIGILAW 2305 (RAJ)

State Bank of India v. Kuldeep Kalla

2012-12-13

NARENDRA KUMAR JAIN-I, R.S.CHAUHAN

body2012
Hon'ble CHAUHAN, J.—Hon'ble Chauhan J.—The appellant-Bank, State of Bank of India, is aggrieved by the judgment dated 17.10.2006 passed by the learned Single Judge in S.B. Civil Writ Petition No.4482/2004 (Kuldeep Kalla vs. The State Bank of India & ors.), whereby the learned Judge has directed the appellant-bank to appoint the respondent, Kuldeep Kalla, on compassionate ground. 2. The brief facts of the case are that Kuldeep Kalla's father, Shri Rajendra Prasad, was working as Senior Assistant in the Army Area Branch of the State Bank of India at Jodhpur. He expired on 13.10.2012 at the age of fifty-four years. On 16.12.2002, the respondent sought appointment in the Bank on compassionate ground. In the application, the respondent claimed that his family consists of his widowed mother, Smt. Asha Kalla, of his two sisters, and himself. Out of the two sisters, while one sister is married, the other sister is still unmarried. The appellant-bank considered the case of the respondent under its scheme. By order dated 30.04.2003, the Bank concluded that the financial condition of the family is not such as to the term the family as penurious. Therefore, it rejected the application filed by the respondent. By letter dated 12.06.2003, the Bank informed the respondent that his case has been rejected. Immediately, the respondent's mother submitted a representation bringing out the precarious condition of the family. However, by letter dated 31.12.2003, the appellant again informed the respondent that his case was considered by the local head office and by the higher authorities of the Bank, yet still they did not find any valid reason for appointing him on compassionate ground. Hence, his mother's representation and his application have been rejected. Subsequently, on 10.08.2004, the respondent sent a legal notice. However, the legal notice was never responded to. Thus, the respondent filed a writ petition before this court. By judgment dated 17th October, 2006, the learned Single Judge allowed the writ petition and directed the Bank to give appointment to the respondent on compassionate ground. Hence, this appeal before this court. 3. During the pendency of the appeal, by order dated 09.02.2007, this Court stayed the effect and operation of the impugned judgment. Subsequently, after hearing both the parties, the said stay order was confirmed by order dated 04.12.2007. Therefore, till date the respondent has not been appointed by the appellant Bank. 4. Mr. Hence, this appeal before this court. 3. During the pendency of the appeal, by order dated 09.02.2007, this Court stayed the effect and operation of the impugned judgment. Subsequently, after hearing both the parties, the said stay order was confirmed by order dated 04.12.2007. Therefore, till date the respondent has not been appointed by the appellant Bank. 4. Mr. Sandeep Shah, the learned counsel for the appellant, has vehemently raised the following contentions: firstly, an appointment on the basis of the compassionate ground is an exception to the general rule that employees are to be recruited from the open market through a selection process prescribed by law. Being an exception to the general principle for recruitment, it is a privilege given under the law. Secondly, the object of granting compassionate appointment is to rescue the family from the financial crisis created by the sudden demise of the bread earner. It cannot, thus, be claimed as a right. The dependents have merely a right of consideration under the scheme prescribed by law. Thirdly, based on the case of Umesh Kumar Nagpal vs. State of Haryana & Ors. ( (1994) 4 SCC 138 ), the Govt. of India circulated certain guidelines dated 28.11.1994 through OM No.14014/22/94. The said guidelines were also circulated to the appellant. The Indian Banks Association, being a representative body of the banks, also issued a circular dated 23.8.1996 stating the object of the scheme of compassionate appoint-ment. Subsequently, the scheme was amended and the relevant scheme was applicable in the year 2002. According to the scheme, prior to giving appointment on compassionate ground, the Bank is required to consider such factors as family pension being received by the family, gratuity amount received, employees/employers contribution to the PF, any compensation paid by the bank, its welfare fund, proceeds of LIC policy and other investments of the deceased employees, income of family from other sources, employment of other family members and size of the family and its liabilities, if any, etc. The Bank had objectively assessed the respondent's case in the light of the aforementioned factors. According to the learned counsel, this is obvious from Ann.R/4 attached with the reply to the writ petition. Since the family had received a terminal benefit of Rs.9.21 lacs, since it was receiving family pension along with other benefits amounting to Rs.7,035/- per month, obviously the family was not in a penurious condition. According to the learned counsel, this is obvious from Ann.R/4 attached with the reply to the writ petition. Since the family had received a terminal benefit of Rs.9.21 lacs, since it was receiving family pension along with other benefits amounting to Rs.7,035/- per month, obviously the family was not in a penurious condition. Fourthly, the learned Judge has erred in concluding that the family was in penurious condition. The learned Judge has overlooked the fact that the benefit of compassionate appointment is to be given only when there is no other means of livelihood. In order to buttress this contention, the learned counsel has relied upon the case of General Manager (D & PB) & Ors. vs. Kunti Tiwary & Anr. (2004 (3) LLJ 1136). Fifthly, once the objective assessment was made by the bank, the Court cannot sit as a court of appeal over the decision; it should not have interfered with order rejecting the respondent's case. In order to buttress this contention, the learned counsel has relied upon the case of Union of India vs. M.T. Lateesh ( (2006) 7 SCC 350 ). Sixthly, by directing the bank to give appointment to the respondent, the discretion of the bank has been fettered. The learned Judge is not justified in obliterating the discretion of the Bank. In order to support this plea, the learned counsel has relied upon the case of M.T. Lateesh (supra). Seventhly, the learned counsel has contended that the scheme which is relevant for the present case was also considered by the Apex court in the case of Punjab National Bank & Ors. vs. Ashwini Kumar Taneja ( (2004) 7 SCC 265 ) and in the case of Kunti Tiwary (supra). In both the cases, the Apex Court set aside the judgment of the High Court directing that the case of the respondent be considered for compassionate appointment. Eighthly since this court had granted stay in the year 2007, the respondent was never appointed in the bank, yet despite the death of the sole bread-earner, the family has financially survived for the last ten years. Therefore, relying upon the case of State of J & K & Ors. Eighthly since this court had granted stay in the year 2007, the respondent was never appointed in the bank, yet despite the death of the sole bread-earner, the family has financially survived for the last ten years. Therefore, relying upon the case of State of J & K & Ors. vs. Sajad Ahmed Mir ( (2006) 5 SCC 766 ), the learned counsel has contended that once it is proved that in spite of the death of the bread-earner, the family has survived the financial crisis, there is no reason to say goodbye to the normal rule of recruitment. 5. On the other hand, Mr. Sanjeet Purohit, the learned counsel for the respondent, has vehemently contended that the learned Judge was justified in concluding that compassionate appointment is a part of socio-economic justice as envisaged in the Constitution of India. In order to buttress this contention, the learned counsel has relied upon the case of Balbir Kaur & Anr. vs. Steel Authoirty of India Ltd. & Ors. ( (2000) 6 SCC 493 ). According to the learned counsel, the appointment on compassionate ground is not meant to merely ameliorate the financial condition of the family, but is also to provide dignity and sense of the security to the family. Secondly, according to the Scheme framed by the Indian Banks Association, the bank was required to consider the family pension payable to the respondent. According to the clause 8.5(3) of the booklet issued by the Bank for the first five years after the death of an employee, the family would be entitled to receive the pension as would be payable to the employee if had he survived till the date of his superannuation. However, after five years, the family would receive only the family pension. Thus, after the fifth year, the pension paid to the family would be reduced dramatically. According to him, although at the relevant time, the family would be paid pension of Rs.5,797/- and after addition of other emoluments it would come to Rs.7,035/-, but after five years, the respondent's family would be entitled to a family penion of merely Rs.1,600/-per month. Thus, it is a misnomer that the respondent's family was receiving a family pension of Rs.7,035/-. Thirdly, although the family was given a terminal benefit of Rs.9.21 lacs, its liability were to the tune of Rs.8.34 lacs. Thus, it is a misnomer that the respondent's family was receiving a family pension of Rs.7,035/-. Thirdly, although the family was given a terminal benefit of Rs.9.21 lacs, its liability were to the tune of Rs.8.34 lacs. Therefore, the family was paid only Rs.52,689/- after adjusting the outstanding amount of loan against the death-cum-retirement benefit available to the family. The said amount was spent in performing the last rites and the other rites connected with the departed soul. Moreover, as stated in the representation filed by the respondent's mother, she only had a skeletal house in her possession. She did not even have sufficient means to complete the construction of the house. Furthermore, the respondent had an unmarried sister; the marriage of his sister is a grave liability upon the family. Therefore, the learned Judge was justified in noting the liabilities faced by the family and in directing the bank to give appointment to the respondent. Hence, the learned counsel has supported the impugned judgment. 6. Heard the learned counsel for the parties, examined the record and perused the impugned judgment. 7. In the case of Umesh Kumar Nagpal (supra) the Apex Court had elaborately dealt with the object of compassionate appointment. It had observed as under:- 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. 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 provision of employment in such lowest posts by making an exception to the rule is justifiable and valid since it is not discriminatory. The favourable treatment given to such dependent of the deceased employee in such posts has a rational nexus with the object sought to be achieved, viz., relief against destitution. No other posts are expected or required to be given by the public authorities for the purpose. 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. No other posts are expected or required to be given by the public authorities for the purpose. 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. The exception to the rule made in favour of the family of the deceased employee is in consideration of the services rendered by him and the legitimate expectations, and the Change in the status and affairs, of the family engendered by the erstwhile employment which are suddenly upturned. 8. It is obvious that an appointment on a compassionate ground has an specific object. An appointment on compassionate ground is not a right bestowed upon the members of the deceased-employee's family. It is a privilege which is created under the scheme framed by the Government or institutions or under the law. Of course, it is true that compassionate appointment is a part of socio-economic justice as prescribed by the preamble of the Constitution of India. But even then, the socio-economic justice has to be done within the parameters of the scheme/rules governing the compassionate appointment. Such an appointment is not a state largess which should be doled out to the dependents of every deceased employee. The question of appointment on compassionate ground is required to be examined in each case on its individual facts and circumstances. The assessment has to be made on objective criteria. Both in the cases of Umesh Kumar Nagpal (Supra) and Sajad Ahmed Mir (supra), the Apex Court was of the opinion that if many years have gone by since the death of the employee, compassionate appointment cannot be claimed and cannot be offered. For, the normal rule of appointment cannot be ignored at the cost of the interest of an individual. If it were done so, it would ignore the mandate of Article 14 of the Constitution of India. 9. A bare perusal of the scheme circulated by the Indian Banks Association clearly reveals that there were certain guidelines prescribed in the scheme. A bare perusal of the order dated 30.04.2003 also clearly reveals that the Bank had considered the case of the respondent on the basis of the criteria mentioned in the scheme. Thus, objective assessment had been made by the Bank. A bare perusal of the order dated 30.04.2003 also clearly reveals that the Bank had considered the case of the respondent on the basis of the criteria mentioned in the scheme. Thus, objective assessment had been made by the Bank. In the case of M.T. Lateesh (supra), the Hon'ble Supreme Court was of the opinion that where authorities are especially constituted under rules and regulations to decide the cases on facts of each case and an objective finding has been arrived at, on the appreciation of the full facts, the finding should not be disturbed by the court, until and unless there were compelling reasons or there was irrationality or mala fide or arbitrariness pleaded and proved. 10. The learned counsel for the respondent has pleaded that the amount of Rs.7,035/- per month would be paid only for a period of five years. According to him, such payment would be reduced after five years and the family would be paid only Rs.1,600/- as family pension. According to the learned counsel, such a scheme is a fraud on the people. For, such a scheme denies the right to the compassionate appointment to a dependent of a deceased-employee. However, such a contention is highly misplaced. For, the object of giving the compassionate appointment is to ameliorate the financial crisis faced by the family of a deceased-employee. If the financial crisis can be ameliorated through other means, it would not amount to a fraud being played on the people. After all, the aim and object of the scheme is to solve the financial crisis being faced by the family of the deceased employee. In the present case, considering the facts that the respondent at the relevant time was studying in second year college, the payment of Rs.7,035/-per month, for a period of five years, would have been sufficient to tied over the financial crisis of the family. After all, the respondents would have entered the job market after completing his studies. 11. Most importantly, the learned Judge has ignored the fact that the respondent's father had died in the year 2002. For four long years, the family had managed to survive. After all, the respondents would have entered the job market after completing his studies. 11. Most importantly, the learned Judge has ignored the fact that the respondent's father had died in the year 2002. For four long years, the family had managed to survive. According to the principles laid down by the Hon'ble Supreme Court, in the case of Umesh Kumar Nagpal (supra) and in the case of Sajad Ahmed Mir (supra), if the family has survived financially without one of its dependent being given appointment on the compassionate ground, the appointment should not be given subsequently. In the present case, the family had survived about four long years. Thus, the respondent would not be entitled to an appointment on compassionate ground. 12. Lastly, the present case is covered squarely by case of State Bank of India & Anr. vs. Somvir Singh (JT 2007(3) SC 398). In this case, a bank employee had died in harness; his legal dependent sought appointment on compassionate ground; the Bank had rejected the case on the ground that the family of the deceased employee was entitled to Rs.3.15 lacs towards terminal benefits and was being granted Rs.2,214/- as family pension. The Hon'ble Supreme Court was of the opinion that in such circumstances, the family could not be held to be “penurious”. The Hon'ble Supreme Court observed as under:- In our considered opinion the High Court itself could not have undertaken any exercise to decide as to what would be the reasonable income which would be sufficient for the family for its survival and whether it had been left in penury or without any means of livelihood. The only question the High Court could have adverted itself is whether the decision making process rejecting the claim of the respondent for compassionate appointment is vitiated? Whether the order is not in conformity with the scheme framed by the appellant-Bank? It is not even urged that the order passed by the Competent Authority is not in accordance with the scheme. It is well settled that the hardship of the dependent does not entitle one to compassionate appointment de hors the scheme or the statutory provisions as the case may be. The income of the family from all sources is required to be taken into consideration according to scheme which the High Court altogether ignored while remitting the matter for fresh consideration by the appellant-Bank. The income of the family from all sources is required to be taken into consideration according to scheme which the High Court altogether ignored while remitting the matter for fresh consideration by the appellant-Bank. It is not a case where the dependents of the deceased employee are left 'without any means of livelihood' and unable to make both ends meet. The High Court ought not to have disturbed the finding and the conclusion arrived at by the appellant-Bank that the respondent was not living hand to mouth. As observed by this Court in General Manager (D&PB) and others vs. Kunti Tiwary and Anr., the High Court cannot dilute the criteria of 'penury' to one of “not very well-to-do”. The view taken by the Division Bench of the High Court may amount to varying the existing scheme framed by the appellant-Bank. Such a course is impermissible in law.” 13. Thus, the learned Judge was not justified in observing that the compassionate appointment should be given on the ground that the family is not well to do. 14. Furthermore, by directing the Bank to appoint the respondent, the learned Judge has absolutely obliterated the discretionary power of the appellant-Bank. In the case of M.T. Lateeh (supra), the Hon'ble Supreme Court has observed as under:- It is also settled law that the specially constituted authorities in the rules or regulations like the competent authority in this case are better equipped to decide the cases on facts of the case and their objective finding arrived on the appreciation of the full facts should not be disturbed. Learned Single Judge and the Division Bench by directing appointment has fettered the discretion of the appointing and selecting authorities. The Bank had considered the application of the respondent in terms of the statutory scheme framed by the Bank for such appointment. After that even though the Bank found the respondent ineligible for appointment to its service, the High Court has found him eligible and has ordered his appointment. This is against the law laid down by this Court. It is settled law that the principles regarding compassionate appointment that compassionate appointment being an exception to the general rule the appointment has to be exercised only in warranting situations and circumstances existing in granting appointment and guiding factors should be financial condition of the family. This is against the law laid down by this Court. It is settled law that the principles regarding compassionate appointment that compassionate appointment being an exception to the general rule the appointment has to be exercised only in warranting situations and circumstances existing in granting appointment and guiding factors should be financial condition of the family. The respondent is not entitled to claim relief under the new Scheme because the financial status of the family is much above the criterion fixed in the new scheme. Thus, the learned Judge was not justified in doing so. 15. For the reasons stated above, this appeal is, hereby, allowed and the impugned judgment dated 17.10.2006 is, hereby, quashed and set aside. 16. No order as to costs.