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2017 DIGILAW 1966 (ALL)

SUMAN TIWARI v. PUNJAB NATIONAL BANK

2017-08-24

DEVENDRA KUMAR ARORA

body2017
JUDGMENT : DEVENDRA KUMAR ARORA, J. 1. Heard the Learned Counsel for the petitioner and the learned Counsel for opposite parties No. 1 to 4. 2. By means of instant writ petition, the petitioner has challenged the order dated 14.10.2013 passed by the General Manager, Punjab National Bank, Personnel Administration Division, Head Office, New Delhi (opposite party No. 2), whereby the claim of the petitioner for appointment on compassionate ground has been rejected. The petitioner, inter-alia has sought for a direction to the respondents to give employment to petitioner in Class-III/Clerical Grade in the Bank on compassionate grounds as per modified Scheme dated 03.11.2007 H.R.D circular No. 433. 3. Submission of learned Counsel for the petitioner is that the husband of petitioner, namely, Shiv Narain Tiwari, who was employed as Clerk/Cashier (Head) at Branch Astikan Faizabad, died on 01.04.2009 in a road accident leaving behind the petitioner (wife), mother and five years old minor son. It has also been submitted that at the time of death, the husband of the petitioner was only 26 years old. The petitioner, who is graduate, applied for appointment on compassionate ground on a Class-III post vide application dated 22.04.2009. The claim of the petitioner was rejected vide order dated 13.02.2010 on the ground that the petitioner's qualification is not commensurate with the recruitment policy of the Bank. While rejecting the claim, petitioner was offered appointment on Class-IV post but she requested the opposite parties to give employment in Class-III because she is graduate and eligible for the said post. The petitioner again moved an application on 26.07.2013 before the opposite parties and when no decision was taken, she filed a Writ Petition No. 5161 of 2013, which was disposed of vide order dated 10.09.2013 with a direction to opposite party No. 1 (Bank) to consider and decide the representation of the petitioner dated 26.07.2013 by speaking and reasoned order. In compliance of the order dated 10.09.2013, the General Manager, Punjab National Bank has decided the representation of the petitioner vide impugned order dated 14.10.2013 denying the compassionate appointment on the ground that the petitioner is not found eligible for employment on compassionate grounds, however, she can submit application for grant of financial assistance under the revised scheme for payment of ex-gratia (lump sum amount) in lieu of employment on compassionate ground for consideration by the competent authority. 4. 4. It has been contended by learned Counsel for the petitioner that the respondent No. 2 has wrongly rejected the claim of the petitioner on the ground of parentage of marks whereas the percentage of marks will not be looked into for the appointment on compassionate ground. The prescribed minimum qualification is only graduation for Class-III. The percentage of marks is required for direct recruitment in the Bank. The respondent No. 2 has misinterpreted the qualification along with percentage of marks, which in fact relates to direct recruitment and not for compassionate appointment. 5. On the contrary, learned Counsel for the Bank has contended that the Punjab National Bank had issued a HRD Circular No. 235 dated 07.01.2005 for employment on compassionate ground in Bank, later on, the said Scheme was modified vide HRD Circular No. 433 dated 03.11.2007. It has also been contended that the Punjab National Bank is a nationalized bank and a corporate body constituted under the provisions of Banking Companies (Acquisition and Transfer of Undertakings) Act, 1972. Punjab National Bank framed a Policy Document for Recruitment. The petitioner had submitted the application dated 06.07.2009 for employment on compassionate ground and the application of the petitioner was examined in terms of the policy of the Bank as circulated vide HRD Circular No. 433 dated 03.11.2007, in which she was not found eligible for recruitment as she had secured only 44% marks in graduation instead of minimum requisite 50% marks for employment in clerical cadre. 6. Learned Counsel for the respondent has also contended that the petitioner belongs to general category and, therefore, she is not entitled for any relaxation in education qualification as provided to Schedule Caste, Schedule Tribes and Ex-service Man. It has also been contended that the petitioner cannot claim compassionate appointment as a matter of right because the modified Scheme is only for providing assistance to the family of the deceased employee, who died-in-harness. 7. I have considered the rival submissions made by the Learned counsel for the petitioner as well as for the respondents. It has also been contended that the petitioner cannot claim compassionate appointment as a matter of right because the modified Scheme is only for providing assistance to the family of the deceased employee, who died-in-harness. 7. I have considered the rival submissions made by the Learned counsel for the petitioner as well as for the respondents. It is not in dispute that petitioner's husband was working as an Head cashier/Clerk at Branch Astikan Faizabad at the time of his death in a road accident but the dispute pertains to the legality of order dated 14.10.2013 passed by General Manager, Punjab National Bank, Personal Administration Division, Head Office, New Delhi which rejected the application for compassionate employment to the petitioner. The disputed order contended that the terminal dues of the deceased were duly settled by the Bank and her candidature for appointment on compassionate grounds was considered by the bank and she was not found eligible for appointment under the policy of the bank. The apparent dispute seems to be regarding the Qualification for appointment on compassionate ground and the order offering the grant of Financial Assistance under the Revised Scheme for the payment of Ex-Gratia in lieu of employment on compassionate grounds is under challenge in this writ petition. 8. Admittedly, the Bank has issued Circular No. 433 dated 3.11.2007 in supersession of HRD circular No. 235 dated 7.1.2005 vide with regard to giving employment on compassionate grounds. The main tenets of the modified scheme as laid down in clause 2 reads as under:- "2.1 Employment on Compassionate Grounds may be considered in clerical/sub staff cadres for a Dependent 'next of kin' of a Deceased Employee who expires while in harness i.e. while in the service of the Bank, keeping in view the financial condition of the bereaved family, in terms of the Modified Scheme, only under circumstances specified below: a. Where an employee dies while performing her/his official duty as a result of violence, terrorism/Robbery, Dacoity ; or b. Where an employee dies within the 5 years of her/his first appointment or before he/she reaches the age of 30 years, whichever is later leaving behind a dependent spouse/minor children. 9. Schedule 2 of the said scheme deals with the Modified Scheme for Employment on compassionate grounds with the object of the Scheme and it reads as under:- 1. 9. Schedule 2 of the said scheme deals with the Modified Scheme for Employment on compassionate grounds with the object of the Scheme and it reads as under:- 1. Name Of The Scheme : The Scheme is to be called the "Scheme FOR Compassionate Appointment To A Dependent Family Member Of A Deceased Employee Under Exceptional Circumstances" 2. Object Of The Scheme : i. In case of untimely death of an employee dying in harness, the bank modified this formulated scheme, under which the family of the deceased employee may seek employment on compassionate grounds to tide over the sudden crisis brought about the premature death of the earning member. ii. Under this Modified scheme the bank offers the option to amongst the 'Next of Kin' of the deceased employee to seek appointment on compassionate grounds in the bank (in the clerical/sub-clerical staff) under the following two circumstances only- (a) Where an employee dies while performing her/his official duty as a result of violence, terrorism/Robbery, Dacoity ; or (b) Where an employee dies within the 5 years of her/his first appointment or before he/she reaches the age of 30 years, whichever is later leaving behind a dependent spouse/minor children. Clause 5 of the scheme deals wit the eligibility to seek assistance under the scheme and enjoins as follows:- "5. Eligibility To Seek Assistance Under The Scheme: For an employee dying as a consequence of violence, terrorism/Robbery, Dacoity, an application under the scheme can be made by the 'Next of Kin', as defined under point 3(viii) above. a. In case of minor children, application under the scheme should be made by his/her legal guardian within the stipulated period, as per stipulations made under (b) below b. The application of the dependent child of a deceased employee may be considered by the bank, within 4 years of the death of the employee, to enable him/her to qualify in terms of the criterion approved for employment in the bank, provided such a request has been made within the stipulated period within the stipulated period for applying under the scheme and has been duly approved by the competent authority for consideration at an appropriate time c. The minimum and maximum age limit of the dependent seeking employment on compassionate grounds is to be governed by the Recruitment policy of the bank, as applicable on the date of death of the employee. d. Qualifications for the appointment shall be as per the General Recruitment policy of the Bank as applicable at the time of death of the employee. Presently, the minimum qualification for appointment in the clerical cadre would be 10+2 of the (10+2+3) pattern or 11th standard of the (11+1+3). d. i. However, in case of otherwise eligible spouse, though the stipulated minimum Educational qualification for appointment in the clerical cadre would be applicable, the same may be relaxed for appointment as sub-staff, provided the bank is satisfied that the concerned person can perform the duties of that cadre." 10. The qualification as laid down in this chapter says that the minimum qualification for appointment in the clerical cadre would be 10+2 of the (10+2+3) pattern or 11th standard of the (11+1+3) pattern or a commensurate degree. Similarly, the minimum qualification in case of appointment in the subordinate cadre is 8th pass. Thus, no where it lays down the minimum percentage of mark in graduation. 11. On the other hand, the policy document for direct recruitment governs recruitment to the subordinate and clerical cadres as well as to the officer upto Senior Management Grade Scale IV. Clause 4 deals with the educational qualifications. As regard the subordinate post, the qualification of XII standard has been prescribed whereas the educational qualification for Clerical cadre has been provided as Graduate in any discipline with 50% marks or equivalent qualification and working knowledge of MS office. 12. In (2002) 1 SCC 193 ; B.D. Shetty v. CEAT Limited the Apex Court has held in explicit words that a beneficial piece of legislation has to be understood and construed in its proper and correct perspective so as to advance the legislative intention underlying its enactment rather than abolish it. Assuming two views are possible, the one, which is in tune with the legislative intention and furthers the same, should be preferred to the one which would frustrate it. 13. Thus, in our view, the difference in qualification both in subordinate and clerical cadre has been provided keeping in mind the nature of beneficial legislation to those on whom the destiny has inflicted the unkindest cut. The underlying object of this beneficial legislation is to alleviate the suffering and to wipe tears to the extent possible off the grief stricken family. The underlying object of this beneficial legislation is to alleviate the suffering and to wipe tears to the extent possible off the grief stricken family. Otherwise, there was no occasion for mentioning the eligibility and qualification at this place and one line 'that it would be same as for direct recruitment would suffice the purpose'. There is a deliberate insertion of mentioning the qualification, which in my mind, appears to be keeping the object of the Rules. Needless to mention here that the policy for compassionate appointment is to be followed, which was holding field or in existence at the time of making application for such appointment. 14. In the instant case, the bank authorities appear to be more concerned with precise details and seemed not to have seen the wood for the trees. They proceeded oblivious of the consideration whether widow would be able to sustain herself and her minor child with the meagre amount of family pension and blissfully unconcerned with the fact on record that the Livelihood of the petitioner is not met. The word 'livelihood' means the money people need to pay for food, a place to live, clothing, etc. according to the dictionary meaning. The underlying object behind the beneficial legislation is to ensure that the pot of the family keeps boiling and the family is able to maintain itself in a condition like the one prevailing at the time when bread earner was alive. Livelihood/maintenance implies a kind of permanent character. These were the factors, which the bank authorities were required to reckon with. It brooks no dispute that catena of decision both by the Apex Court and this Court converge to the settled position that person cannot claim appointment on compassionate ground under the scheme as a matter of right but authorities at the same time were bound to apply liberally the object of beneficial legislation and to traverse upon all the relevant aspects in order to determine whether the applicant was entitled to get appointment on compassionate ground. In these matters, the decision tempered with compassion is the requirement and not the blinkered approach unconcerned with fair play, compassion and justice. The recording of reason is yet another aspect constituting an essential component of natural justice, which all the authorities exercising power under the scheme or rules are required to do. 15. In these matters, the decision tempered with compassion is the requirement and not the blinkered approach unconcerned with fair play, compassion and justice. The recording of reason is yet another aspect constituting an essential component of natural justice, which all the authorities exercising power under the scheme or rules are required to do. 15. Here in this case, the order passed by the General Manager on 10.09.2013 fails to justify the rejection of compassionate appointment of the petitioner as the order merely rejects the application of the petitioner on the basis of the fact that the eligibility would be as per the General recruitment policy of the bank at the time of the death of the employee. Clause 5(D) of the schedule II of the aforesaid HRD Division Circular No. 433 dated 03.11.2007 also mentions that "Presently, the minimum qualification for appointment in the clerical cadre would be 10+2 of the (10+2+3) pattern". The order fails to justify that as per this circular the petitioner seems to be ineligible for the appointment and the order fails to wipe off the confusion regarding the eligibility qualification for appointment on compassionate grounds. In the view of this court, the minimum qualification should be Graduate and the petitioner is eligible for compassionate appointment. Moreover, the petitioner has filed a supplementary affidavit annexing the mark-sheet of graduation from Dr. Ram Manohar Lohia Avadh University Faizabad in the year 2016 as Annexure No. A1 which shows that the petitioner has secured 1109 marks out of 1800 and secured First division. Now, for argument sake it is assumed that fifty percent marks in graduation was mandatory, then too now there is no impediment as the petitioner possess minimum qualification as required. 16. As a result of the foregoing discussion, the writ petition succeeds and is allowed. The order dated 14.10.2013 passed by General Manager, Punjab National Bank, Personnel Administration Division, Head Office, New Delhi, denying compassionate appointment merely on the ground that petitioner does not possess 50% marks in graduation is hereby quashed. The opposite parties are directed to consider the candidature of the petitioner for compassionate appointment on clerical post and issue necessary order in this regard within two months from the date of receipt of certified copy of this order.