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2017 DIGILAW 124 (RAJ)

KAMLA YADAV v. PUNJAB NATIONAL BANK

2017-01-10

PUSHPENDRA SINGH BHATI

body2017
JUDGMENT : Pushpendra Singh Bhati, J. The petitioners have preferred this writ petition making the following prayers :- "(i) issuing an appropriate writ, order or direction and thereby quash and set aside the impugned action including the impugned orders Annex.7 & Annex.8 of the respondent Bank; (ii) issuing an appropriate writ, order or direction in the nature of writ of Mandamus or any other appropriate writ, the respondents be directed/commanded to give appointment on compassionate basis to the petitioner no. 2 upon the suitable post as per his educational qualification with effect from the date of his attaining the age of majority with all consequential benefits; (iii) The petitioners may also be allowed the cost of the writ petition. Any other appropriate order or direction which this Hon'ble Court deems fit and proper in favour of the petitioners may kindly be passed." 2. The facts as noticed by this court are that the petitioner no. 1 is the widow of Late Shri Krishna Lal Yadav who died while working under the employment of the respondent bank whereas petitioner no. 2 is the Son of both of them. Apart from this family, consisted of four unmarried sisters of petitioner no. 2 and the Grandmother of the petitioner no. 2. Late Shri Krishna Lal Yadav was a Substantive and Permanent Officer with the respondent bank and was working as Manager, Branch Office, Tapukada of the Punjab National Bank in the year 1995. Shri Krishna lal Yadav expired on 12.8.1996 while he was under employment of the respondent bank. The petitioner no. 1 requested the respondent to give compassionate appointment to her son (the petitioner no.2) in lieu of his husband's service as he had expired while in service. According to the request of the petitioner no. 1, the respondents informed the petitioner no. 2 vide communication dated 27.6.1997 signed by the respondent no. 4 that the head office of the branch shall inform the signatory with as per the provisions of scheme for compassionate appointment. The name of the petitioner no. 2 has been registered for giving appointment to him on compassionate ground on attaining the age of the majority. Thus, the name of the petitioner no. 4 that the head office of the branch shall inform the signatory with as per the provisions of scheme for compassionate appointment. The name of the petitioner no. 2 has been registered for giving appointment to him on compassionate ground on attaining the age of the majority. Thus, the name of the petitioner no. 2 was put in the zone of consideration by the respondents in accordance with the scheme for employment of dependents of the employees who died while in service of the bank on compassionate ground (hereinafter referred as scheme) dated 20.3.1997. The relevant portion of the scheme mentioned in clause 6 (B) is reproduced as follows :- "(6) Method of Appointment (a)......... (b) In case the dependent is a minor or does not possess suitable minimum qualification, his/her case can be considered at the discretion of the Bank within four years of the death of the employee to enable him/her to so qualify in terms of age and/or qualification provided that the dependent has made a request to the bank within one year of the death of the employee." 3. The relevant portion of the scheme as mentioned in clause 10 is also reproduced as follows :- "(10) Financial Condition of the Family:- The dependents of an employee dying in harness may be considered for compassionate appointment provided the family is without sufficient means of livelihood, specifically keeping in view the following : (a) Family Pension; (b) Gratuity amount received; (c) Employee's/Employer's contribution to PF; (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 for family from other sources; (g) Employment of other family members; (h) Size of the Family and liabilities, if any, etc. 4. After becoming major, the petitioner no. 2 moved an application on 13.1.2000 along with certificates of educational qualifications and other documents for getting the appointment on compassionate basis in accordance with the consideration pending with the respondents as per the letter dated 27.6.1997. The petitioner was informed vide letter dated 18.1.2000 that his name has been registered for consideration for compassionate appointment. 5. The petitioner was however, informed by a cryptic letter dated 10.8.2000 that his claim for compassionate appointment has been rejected. The order dated 10.8.2000 rejecting the claim compassionate appointment did not carry any reason whatsoever for such rejection. The petitioner was informed vide letter dated 18.1.2000 that his name has been registered for consideration for compassionate appointment. 5. The petitioner was however, informed by a cryptic letter dated 10.8.2000 that his claim for compassionate appointment has been rejected. The order dated 10.8.2000 rejecting the claim compassionate appointment did not carry any reason whatsoever for such rejection. The petitioner accordingly, took up the issue with the help of respondents authorities by representing to them while seeking their sympathy for the peculiar circumstances of a huge family dependent upon him and the poor condition of the family. After making of efforts of filing the representation on 11.9.2000, 13.11.2000, 3.11.2001, 3.1.2003 etc., the petitioner was left with no option but not to approach this court. 6. The respondents have filed a reply and have submitted that the respondents had disbursed various accounts of gratuity, benevolent fund, provident fund, family pension etc. and therefore, the criteria of penurious condition was not available to the petitioner. In the reply it was also averred that the name of the petitioner no. 2 was registered for consideration for compassionate appointment on his attaining of majority but no assurance was given to the petitioner. In light of the fact interalia that the family was paid Rs. 2,93,810 as terminal dues of late Shri K.L. Yadav, and was getting a family pension of Rs. 5,310/- p.m., the petitioner's request could not be accepted by the respondent bank. 7. The counsel for the petitioner Mr. Vivek Dangi made a forceful submission that once the name of the petitioner no.2 was considered then the same could not have been abruptly dismissed without furnishing any reason or without communicating a speaking order. The counsel for the petitioner also referred to the precedent law laid down by the Hon'ble Apex Court in the matter of Canara Bank & Anr. v. M. Mahesh Kumar reported in 2015 (7) SCC 412 . The relevant portion of the judgment is as follows :- "8. Law with regard to employment on compassionate ground for dependants of a deceased employee is well settled. In Sushma Gosain v. Union of India, this Court held as thus: (SCC p. 470, para 9) 9. We consider that it must be stated unequivocally that in all claims for appointment on compassionate grounds, there should not be any delay in appointment. Law with regard to employment on compassionate ground for dependants of a deceased employee is well settled. In Sushma Gosain v. Union of India, this Court held as thus: (SCC p. 470, para 9) 9. We consider that it must be stated unequivocally that in all claims for appointment on compassionate grounds, there should not be any delay in appointment. The purpose of providing appointment on compassionate ground is to mitigate the hardship due to death of the bread earner in the family. Such appointment should, therefore, be provided immediately to redeem the family in distress. It is improper to keep such case pending for years. If there is no suitable post for appointment supernumerary post should be created to accommodate the applicant. 9. The settled law which has been reiterated in various cases has been succinctly elucidated in MGB Gramin Bank v. Chakrawarti Singh, wherein it was observed that compassionate appointment cannot be granted as of right and the application to be decided as expeditiously as possible and held as under: (SCC p. 585, para 6) 6. Every appointment to public office must be made by strictly adhering to the mandatory requirements of Articles 14 and 16 of the Constitution. An exception by providing employment on compassionate grounds has been carved out in order to remove the financial constraints on the bereaved family, which has lost its bread earner. Mere death of a government employee in harness does not entitle the family to claim compassionate employment. The competent authority has to examine the financial condition of the family of the deceased employee and it is only if it is satisfied that without providing 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. More so, the person claiming such appointment must possess required eligibility for the post. The consistent view that has been taken by the Court is that compassionate employment cannot be claimed as a matter of right, as it is not a vested right. The Court should not stretch the provision by liberal interpretation beyond permissible limits on humanitarian grounds. Such appointment should, therefore, be provided immediately to redeem the family in distress. It is improper to keep such a case pending for years. The Court should not stretch the provision by liberal interpretation beyond permissible limits on humanitarian grounds. Such appointment should, therefore, be provided immediately to redeem the family in distress. It is improper to keep such a case pending for years. (emphasis supplied) The above consistent view has been reiterated in various judgments by this Court in Umesh Kumar Nagpal v. State of Haryana, State of Manipur v. Mohd. Rajaodin, Steel Authority of India Ltd. v. Madhusudan Das and Sanjay Kumar v. State of Bihar. 14. In Jaspal Kaur's case, Sukhbir Inder Singh employee of State Bank of India, Record Assistant (Cash & Accounts) passed away on 1.08.1999. Widow of the employee applied for compassionate appointment in State Bank of India on 5.02.2000. On 7.01.2002, the competent authority of the bank rejected the application of Jaspal Kaur in view of the Scheme vis-a-vis the financial position of the family. Against that decision of the competent authority, the Respondent filed writ petition before the Punjab and Haryana High Court which has directed to consider the case of Jaspal Kaur by applying the Scheme formulated on 4.08.2005 when her application was made in the year 2000. In that factual matrix, this Court has directed that dispute arising in the year 2000 cannot be decided on the basis of a Scheme that was put in place much after the dispute. 15. By perusal of the judgment in Jaspal Kaur's case, it is apparent that the judgment specifically states that claim of compassionate appointment under a scheme of a particular year cannot be decided in the light of the subsequent scheme that came into force much after the claim. 16. The same principle was reiterated by this Court in the case of Bhawani Prasad Sonkar v. Union of India, wherein it was held as under: (SCC pp. 213-15, paras 15, 17 & 20) "15. Now, it is well settled that compassionate employment is given solely on humanitarian grounds with the sole object to provide immediate relief to the employee's family to tide over the sudden financial crisis and cannot be claimed as a matter of right. Appointment based solely on descent is inimical to our constitutional scheme, and ordinarily public employment must be strictly on the basis of open invitation of applications and comparative merit, in consonance with Articles 14 and 16 of the Constitution of India. No other mode of appointment is permissible. Appointment based solely on descent is inimical to our constitutional scheme, and ordinarily public employment must be strictly on the basis of open invitation of applications and comparative merit, in consonance with Articles 14 and 16 of the Constitution of India. No other mode of appointment is permissible. Nevertheless, the concept of compassionate appointment has been recognised as an exception to the general rule, carved out in the interest of justice, in certain exigencies, by way of a policy of an employer, which partakes the character of the service rules. That being so, it needs little emphasis that the scheme or the policy, as the case may be, is binding both on the employer and the employee. Being an exception, the scheme has to be strictly construed and confined only to the purpose it seeks to achieve. 17. In Umesh Kumar Nagpal v. State of Haryana, while emphasising that a compassionate appointment cannot be claimed as a matter of course or in posts above Classes III and IV, this Court had observed that: (SCC p. 140, para 2) "2...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 dependant of the deceased employee in such posts has a rational nexus with the object sought to be achieved viz. relief against destitution. 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 dependant 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. 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.' 20. Thus, while considering a claim for employment on compassionate ground, the following factors have to be borne in mind : (i) Compassionate employment cannot be made in the absence of rules or Regulations issued by the Government or a public authority. The request is to be considered strictly in accordance with the governing scheme, and no discretion as such is left with any authority to make compassionate appointment dehors the scheme. (ii) An application for compassionate employment must be preferred without undue delay and has to be considered within a reasonable period of time. (iii) An appointment on compassionate ground is to meet the sudden crisis occurring in the family on account of the death or medical invalidation of the breadwinner while in service. Therefore, compassionate employment cannot be granted as a matter of course by way of largesse irrespective of the financial condition of the deceased/incapacitated employee's family at the time of his death or incapacity, as the case may be. (iv) Compassionate employment is permissible only to one of the dependants of the deceased/incapacitated employee viz. parents, spouse, son or daughter and not to all relatives, and such appointments should be only to the lowest category that is Class III and IV posts." 17. (iv) Compassionate employment is permissible only to one of the dependants of the deceased/incapacitated employee viz. parents, spouse, son or daughter and not to all relatives, and such appointments should be only to the lowest category that is Class III and IV posts." 17. Applying these principles to the case in hand, as discussed earlier, Respondent's father died on 10.10.1998 while he was serving as a clerk in the Appellant-bank and the Respondent applied timely for compassionate appointment as per the scheme 'Dying in Harness Scheme' dated 8.05.1993 which was in force at that time. The Appellant-bank rejected the Respondent's claim on 30.06.1999 recording that there are no indigent circumstances for providing employment to the Respondent. Again on 7.11.2001, the Appellant-bank sought for particulars in connection with the issue of Respondent's employment. In the light of the principles laid down in the above decisions, the cause of action to be considered for compassionate appointment arose when the Circular No. 154/1993 dated 8.05.1993 was in force. Thus, as per the judgment referred in Jaspal Kaur's case, the claim cannot be decided as per 2005 Scheme providing for ex-gratia payment. The Circular dated 14.2.2005 being an administrative or executive order cannot have retrospective effect so as to take away the right accrued to the Respondent as per circular of 1993. 18. It is also pertinent to note that 2005 Scheme providing only for ex-gratia payment in lieu of compassionate appointment stands superseded by the Scheme of 2014 which has revived the scheme providing for compassionate appointment. As on date, now the scheme in force is to provide compassionate appointment. Under these circumstances, the Appellant bank is not justified in contending that the application for compassionate appointment of the Respondent cannot be considered in view of passage of time. 19. Insofar as the contention of the Appellant-bank that since the Respondent's family is getting family pension and also obtained the terminal benefits, in our view, is of no consequence in considering the application for compassionate appointment. Clause 3.2 of 1993 Scheme says that in case the dependant of deceased employee to be offered appointment is a minor, the bank may keep the offer of appointment open till the minor attains the age of majority. Clause 3.2 of 1993 Scheme says that in case the dependant of deceased employee to be offered appointment is a minor, the bank may keep the offer of appointment open till the minor attains the age of majority. This would indicate that granting of terminal benefits is of no consequence because even if terminal benefit is given, if the applicant is a minor, the bank would keep the appointment open till the minor attains the majority. 20. In Balbir Kaur and Anr. v. Steel Authority of India Ltd., while dealing with the application made by the widow for employment on compassionate ground applicable to the Steel Authority of India, contention raised was that since she is entitled to get the benefit under Family Benefit Scheme assuring monthly payment to the family of the deceased employee, the request for compassionate appointment cannot be acceded to. Rejecting that contention in paragraph (13), this Court held as under: (SCC p. 503) "13...But in our view this Family Benefit Scheme cannot in any way be equated with the benefit of compassionate appointments. The sudden jerk in the family by reason of the death of the bread earner can only be absorbed by some lump-sum amount being made available to the family -- this is rather unfortunate but this is a reality. The feeling of security drops to zero on the death of the bread earner and insecurity thereafter reigns and it is at that juncture if some lump-sum amount is made available with a compassionate appointment, the grief stricken family may find some solace to the mental agony and manage its affairs in the normal course of events. It is not that monetary benefit would be the replacement of the bread earner, but that would undoubtedly bring some solace to the situation." 21. Referring to Steel Authority of India Ltd.'s case, High Court has rightly held that the grant of family pension or payment of terminal benefits cannot be treated as a substitute for providing employment assistance. The High Court also observed that it is not the case of the bank that the Respondents' family is having any other income to negate their claim for appointment on compassionate ground. 22. The High Court also observed that it is not the case of the bank that the Respondents' family is having any other income to negate their claim for appointment on compassionate ground. 22. Considering the scope of the Scheme 'Dying in Harness Scheme 1993' then in force and the facts and circumstances of the case, the High Court rightly directed the Appellant-bank to reconsider the claim of the Respondent for compassionate appointment in accordance with law and as per the Scheme (1993) then in existence. We do not find any reason warranting interference." 8. The counsel for the petitioner also relied upon the judgment of Kuldeep Kalla v. State Bank of India reported in 2006 (5) WLC Raj. 615. The relevant portion, which is as follows :- "11. The only reason for denying appointment on compassionate grounds to the petitioner is that the condition of the petitioner's family is not so penurious that warrant such appointment. In view of it the main question required to be adjudicated is whether in available economic sources the family of the petitioner be termed and treated as penurious that may warrant appointment of the petitioner on compassionate grounds? 12. As stated in preceding paras the respondent bank while declining appointment to the petitioner has taken into consideration the fact that a sum of Rs. 7035/-, that includes family pension, is adequate for sustenance of a family of three members. It is true that by getting income in a tune of Rs. 7035/- family of the petitioner shall be able to continue with their breath but that it is not only requirement of life. The life is required to be dignified, that means something more than mere survival. A dignified life includes the minimum requirement for an honoured member of society with adequate source to provide education, medical facility and have capability to discharge simple social liabilities. The term 'penurious' is for poor conditions, it does not mean the begging conditions. It is highly unjust that the respondents considered a sum of Rs. 7035/- as adequate for sustenance of a family of three members. The object of the rules/administrative instructions to provide compassionate appointment is to provide a helping hand to the family of a deceased employee in harness sand this help should be in such nature that the family may maintain itself with at least minimum dignity. 7035/- as adequate for sustenance of a family of three members. The object of the rules/administrative instructions to provide compassionate appointment is to provide a helping hand to the family of a deceased employee in harness sand this help should be in such nature that the family may maintain itself with at least minimum dignity. From perusal of the note prepared by the bank while considering economic status of the petitioner's family, it is apparent that the worth of the house of petitioner is Rs. 7 lacs only. The sole income of the petitioner is Rs. 7035/- per month and one daughter of the deceased bank employee is still to be married. In such circumstances I do not consider that the economic status of the family of the petitioner is not penurious. 9. The counsel for the petitioner thus, made a substantial argument that grant of family pension or payment to terminal benefits cannot be treated as a substitute for providing employment assistance and once the petitioner was considered in accordance with the scheme, he should have been given the appointment. The counsel for the respondents Mr. Sidhant Jain vehemently argued that the law of compassionate appointment was a settled law and the compassionate appointment was an exception to the general rule carried out in the interest of certain exigency to meet extreme financial crisis condition upon the family of the deceased employee. The counsel for the respondents argued that the whole objection of compassionate appointment is only to enable the family to tide over the sudden crisis. The counsel for the respondents relied upon Bhawani Prasad Sonkar v. Union of India & Ors. reported in 2011 (4) SCC 209 and Umesh Kumar Nagpal v. State of Haryana reported in 1994 (4) SCC 138 . 10. This court after carefully considering the aforementioned precedent law and the facts of the case takes note of certain facts which are :- (i) the petitioner no. 2 is son of Late Shri Krishna Lal Yadav who died while in employment, (ii) petitioner no. 2 was entitled for consideration to compassionate appointment, (iii) the scheme of the respondents provided for consideration for compassionate appointment even for a minor on him attaining majority, (iv) the rejection made by the respondents was cryptic and non-speaking. 11. This court has also taken note of the law laid down in Balbir Kaur & Anr. 2 was entitled for consideration to compassionate appointment, (iii) the scheme of the respondents provided for consideration for compassionate appointment even for a minor on him attaining majority, (iv) the rejection made by the respondents was cryptic and non-speaking. 11. This court has also taken note of the law laid down in Balbir Kaur & Anr. v. Steel Authority of India Ltd. & Ors. reported in 2000 (6) SCC 493 whereby it has been held that the family pension or payment of terminal benefits cannot be treated as a substitute for providing compassionate appointment since the petitioner is lawfully entitled to be considered for compassionate appointment as per the scheme and the only ground of denial by the respondent bank was that family pension and terminal benefits had been paid to the petitioner and the same ground was also taken first time in the reply by the respondents. Thus, while setting aside the order dated 17.8.2000, this court directs the respondents to give appointment on compassionate basis to the petitioner no.2 upon the suitable post as per his educational qualifications with effect from the date of this judgment. The only reason of denial was the payment of family pension and retrial benefits and the same is set aside. Such appointment should be granted within a period of 3 months from the petitioner furnishing a certified copy of this order before the respondents. 12. The writ petition is accordingly allowed.