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2018 DIGILAW 919 (RAJ)

Rishi Baghari v. State Bank of India

2018-04-05

PUSHPENDRA SINGH BHATI

body2018
JUDGMENT : Pushpendra Singh Bhati, J. Petitioner has preferred this writ petition under Article 226 of the Constitution of India claiming the following reliefs :- "1. It is, therefore, humbly prayed that this writ petition may kindly be allowed and the order dated 22.02.2016 may kindly be quashed and set aside and the respondents may kindly be directed to accord appointment to the petitioner on compassionate ground. 2. Any other appropriate order, as deemed fit in the facts and circumstances of the case may kindly be passed in favour of the petitioner." 2. Brief facts of this case, as noticed by this Court are that earlier a writ petition bearing S.B. Civil Writ Petition No.6595/2011 was preferred by the petitioner, and after hearing both the parties, the same was allowed vide order dated 04.04.2014, and the said order was affirmed by the Division Bench of this Hon'ble Court on 29.09.2015 in D.B. Civil Special Appeal (Writ) No.764/2014 (State Bank of Bikaner & Jaipur & Ors. Vs. Rishi Baghari). The respondents were accordingly required to consider the case of the petitioner afresh for providing appointment, as per the policy which was in existence on the date of death of the petitioner's father within a period of three months. 3. The aforementioned order dated 04.04.2014 passed by the coordinate Bench of this Court reads as follows :- "Heard learned counsel for the parties. Instant writ petitioner has been filed by the son of Late Hanuman Singh Bhagari who died while in service of respondent Bank in an account on 30.10.2005 for direction to the respondent to provide appointment on compassionate ground. The petitioner being son of Late Hanuman Singh Baghari filed an application to provide appointment on compassionate ground but the application of the petitioner was rejected vide communication dated 15.09.2006 by the respondent Bank stating therein that as per the existing scheme, appointment on compassionate ground is not permissible. Learned counsel for the petitioner submits that the date on which the petitioner's father died, a different scheme was in existence, under that scheme the petitioner is very much entitled for appointment on compassionate ground but while taking shelter of subsequent scheme framed by the respondent Bank after the date of death on 20.12.2005, it is informed to the petitioner's mother that no appointment can be given as per the new scheme framed on 20th December, 2005. As per argument of petitioner, the denial of appointment on the basis of subsequent policy is not tenable in law because the policy which was in existence on the date of death of petitioner's father is to be taken into consideration for providing appointment on compassionate ground, therefore, the respondents may kindly be directed to decide the petitioner's application for providing appointment as per the existing policy prevailing prior to 20.12.2005. Per contra, learned counsel for the respondent submits that petitioner is not entitled for appointment because policy which was in existence on the date of death of petitioner's father was subsequently amended and in the new policy framed on 20.12.2005, it was specifically provided that at the time of death of an employee, only ex gratia benefit will be extended to the family of the deceased employee and no appointment will be given on compassionate ground. Further it is submitted that in the year 201 in supersession of all above policies, another circular was issued in which it is decided by the Bank to provide appointment in exceptional cases on compassionate ground, therefore, the denial of appointment to the petitioner on compassionate ground is perfectly justified and in consonance with the policy framed by the respondent-Bank. After hearing learned counsel for the parties, I have perused the pleading so also the circulars placed on record by the Bank alongwith the reply. Admittedly, father of the petitioner died in an accident occurred on 31.10.2005. After hearing learned counsel for the parties, I have perused the pleading so also the circulars placed on record by the Bank alongwith the reply. Admittedly, father of the petitioner died in an accident occurred on 31.10.2005. An application was moved by the petitioner for providing appointment on compassionate ground but application of the petitioner for providing appointment on compassionate ground is rejected solely on the ground that a new policy framed in the month of December, 2005 and it is decided by the Bank to pay ex gratia benefits to the family of employee who died while in service, therefore, meaning thereby, the denial of consideration for appointment is not sustainable in law because it is the duty of employer to provide relief to the family of employee who died while in service, therefore, the scheme in existence on the date of death should have been considered for appointment, therefore, denial of appointment to the petitioner is not based upon valid reasons, more so the denial of appointment is contrary to the basic principle of law because the day on which petitioner's father died, there was provision in the existing policy to provide appointment on compassionate ground. In view of the above, this writ petition is allowed. The communication (Annex.7) is hereby quashed and set aside with direction to the respondents to consider the case of the petitioner afresh for providing appointment as per the policy which was in existence on the date of death of petitioner's father, within three moths from the date of receiving certified copy of this order and pass order." 4. The judgment dated 29.09.2015 rendered by the Division Bench of this Hon'ble Court, affirming the aforequoted order dated 04.04.2014, reads as under:- "This intra-court appeal is directed against the order dated 4th April, 2014 passed by the learned Single Judge of this High Court, whereby he has allowed respondent's S.B. Civil Writ Petition No.6595/2011. On 30.10.2005, respondent's father Hanuman Singh Baghari died in an accident while in service of the appellants. The respondent, therefore, promptly applied to the appellants for his appointment on compassionate ground. On 30.10.2005, respondent's father Hanuman Singh Baghari died in an accident while in service of the appellants. The respondent, therefore, promptly applied to the appellants for his appointment on compassionate ground. His application ought to have been considered and decided as per the policy for making appointment on compassionate ground in vogue on 30.10.2005, but the appellants rejected the same vide communication dated 15.09.2006 on the ground that as per new policy dated 20th December, 2005, such appointment was not permissible. According to the appellants, new policy of December, 2005 provided that only ex-gratia benefit will be extended to the family of the deceased employee and no appointment will be given on compassionate ground. Aggrieved, the respondent filed S.B. Civil Writ Petition No.6595/2011, which the learned Single Judge has allowed by the impugned order. The learned Single Judge has held that father of respondent died in an accident on 30.10.2005 and therefore, the claim of respondent for compassionate appointment ought to have been decided as per policy in vogue on 30.10.2005 regarding compassionate appointment. The learned Single Judge has also held that the appellants committed an illegality in rejecting the claim of respondent solely on the basis of a new policy, which came into force with effect from 20.12.2005, wherein only ex-gratia payment is provided. The learned Single Judge has, therefore, quashed the communication dated 15.9.2006 rejecting the claim of respondent for appointment on compassionate ground and directed the appellants to consider his case afresh as per the policy, which was in vogue on the date of death of his father Hanuman Singh Baghari. After hearing the learned counsel for the appellants and respondent, we find ourselves in complete agreement with the view taken by the learned Single Judge, because the Supreme Court also in a recent decision in Canara Bank Vs. M. Mahesh Kumar, (2015) 7 SCC 412 has held that application for compassionate appointment should be decided expeditiously on the basis of policy in existence when the cause of action arose. The Supreme Court has further clarified that subsequent policy regarding compassionate appointment cannot be applied with retrospective effect so as to take away the right accrued to the claimant for compassionate appointment. It is also to be noted that now a new policy in the year 2014 has again been introduced, which has revived the scheme providing for compassionate appointment and policy of 2005 has been superseded. It is also to be noted that now a new policy in the year 2014 has again been introduced, which has revived the scheme providing for compassionate appointment and policy of 2005 has been superseded. For these reasons, the appellants must immediately consider the case of respondent afresh for his appointment on compassionate ground. The appeal is dismissed." 5. The petitioner's father was admittedly, a regular employee of the respondent-Bank being appointed on 27.03.1992 as Peon, and died on 30.10.2005 while in service on the post of Head Cashier. The mother of the petitioner, namely, Smt. Rama Rani Baghari moved an application seeking appointment of her son, the present petitioner, on compassionate ground. But the said application so moved by the mother of the petitioner did not receive due consideration for a long time, and thereafter, the same was rejected by the respondents. 6. It is relevant to note that the respondents wanted to cover the petitioner's family under the ex gratia scheme, which came into effect on 20.12.2005, whereas the petitioner's father had already died on 30.10.2005. 7. The respondents passed a fresh order dated 22.02.2016, in compliance of the aforementioned order of this Hon'ble Court passed in the earlier writ petition, rejecting the candidature of the petitioner. The operative portion of the said order reads as under:- "In view of the aforesaid scheme, it has been found that the financial condition of the family of deceased employee late (Shri) Hanwant Singh Bhaghari, at the time of his death in the year 2005 was not such whereunder it could have been said that his family was unable to tide over the sudden crises due to the death of the bread winner because the same was, about 116.82% of the last drawn gross salary (net of taxes) of late (Shri) Hanwant Singh Baghari. Hence, for the aforesaid reason, the Competent Authority has arrived at the decision that your claim is not covered under the said scheme for appointment in the Bank on compassionate ground. Please be informed accordingly." 8. Mr. Dinesh Ojha, learned counsel for the petitioner, at the outset, submits that the compassionate appointment has been denied to the petitioner only on the ground that the petitioner's family is having a good financial condition. 9. Please be informed accordingly." 8. Mr. Dinesh Ojha, learned counsel for the petitioner, at the outset, submits that the compassionate appointment has been denied to the petitioner only on the ground that the petitioner's family is having a good financial condition. 9. Learned counsel for the petitioner further submitted that the financial condition of the petitioner's family could not have been a ground for rejecting the case of the petitioner for appointment on compassionate ground, as the Hon'ble Apex Court had already laid down a law that rejection of the candidature of a person seeking compassionate appointment, on the ground of financial condition, was not in the right taste. 10. Learned counsel for the petitioner has relied upon the precedent law laid down by the Hon'ble Apex Court in Canara Bank & Anr. Vs. M. Mahesh Kumar (Civil Appeal No. 260/2008), decided on 15.05.2015. The relevant portion of which reads as under:- "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. 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, (1994) 4 SCC 138 , 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 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. 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 [pic] 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. 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." 13. 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. 14. 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. 14. 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. 15. 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. 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. 16. In Balbir Kaur & Anr. vs. Steel Authority of India Ltd. & Ors., (2000) 6 SCC 493 , 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:- "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 breadearner 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 breadearner 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. The feeling of security drops to zero on the death of the breadearner 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 breadearner, but that would undoubtedly bring some solace to the situation." 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. 17. 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. 18. So far as the cases in Civil Appeal No.266/2008 and Civil Appeal No.267/2008 are concerned, they are similar and those respondents are similarly placed and the appeals preferred by the bank are liable to be dismissed. The appellant-bank is directed to consider the case of the respondents in Civil Appeal Nos. 266/2008 and 267/2008. 19. In the result, all the appeals preferred by the appellant-bank are dismissed and the appellant bank is directed to consider the case of the respondents for compassionate appointment as per the Scheme which was in vogue at the time of death of the concerned employee. In the facts and circumstances of the case, we make no order as to costs." 11. Per contra, learned counsel for the respondents Mr. Sanjeet Purohit assisted by Mr. In the facts and circumstances of the case, we make no order as to costs." 11. Per contra, learned counsel for the respondents Mr. Sanjeet Purohit assisted by Mr. Akshay Surana, Advocate, has categorically stated that the impugned order is justified and the financial condition of the petitioner's family was judged at length, and thereafter, the denial of compassionate appointment has been made, on the ground that the claim of the petitioner is not covered under the Scheme for appointment in the respondent-Bank on compassionate ground, on account of the financial condition of the family of the deceased employee. 12. Learned counsel for the respondents has also pointed out that at the relevant time, the mother of the petitioner was gainfully employed and discharging her duties in the Medical & Health Department, Government of Rajasthan. 13. Learned counsel for the respondents relied upon the judgment rendered by the Division Bench of this Hon'ble Court in Uco Bank & Ors. Vs. Devi Kishan Harijan (DBSAW No.722/08) decided on 21.12.2016, whereby the following precedent law has been laid down:- "22. In view of the various pronouncements cited above, it is apparently clear that the philosophy behind giving compassionate appointment is just to help the family in harness to get over the immediate crisis by the loss of sole breadwinner. This category of appointment cannot be claimed as a right after lapse of the period when the crisis is over. More so, the financial status of the family is also to be looked into as per the scheme framed by the employer while giving compassionate appointment and such appointment cannot be conferred contrary to the para-meters of the scheme. In the matter in hand, death of Bhikha Ram took place on 27.10.1999 i.e. almost 17 years ago from now, therefore, the period of crisis is over for the family of the deceased employee. Further, the condition of the family was not found to be penurious as required under the para-meters of the scheme of the employer Bank applicable at the time of deciding the application for compassionate appointment. 23. In view of above, the direction given by learned Single Judge to reconsider the case of the petitioner respondent sympathetically for giving him compassionate appointment is not found sustainable. Accordingly, the impugned judgment dated 30.5.2008 is hereby quashed and set aside while allowing the appeal." 14. 23. In view of above, the direction given by learned Single Judge to reconsider the case of the petitioner respondent sympathetically for giving him compassionate appointment is not found sustainable. Accordingly, the impugned judgment dated 30.5.2008 is hereby quashed and set aside while allowing the appeal." 14. After hearing learned counsel for the parties as well as perusing the record of the case, alongwith the precedent law cited at the Bar, this Court finds that the petitioner's father died on 30.10.2005, while on duty on the post of Head Cashier, and the ex gratia scheme, that was being earlier applied upon the petitioner, came into force on 20.12.2005, which could not have been given a retrospective effect. Thus, this Hon'ble Court, under the previous directions, created a legal obligation upon the respondents to decide the direct claim of the petitioner for appointment on compassionate ground, in light of the prevailing scheme prior to 20.12.2015. 15. The total evaluation done by the impugned order dated 22.02.2016 (Annexure-5) , operative portion of which has already been reproduced hereinabove, only points out that the family of the petitioner had sufficient means to tide over crisis upon the sudden demise of the petitioner's father, and therefore, the compassionate appointment cannot be given to the petitioner. 16. The precedent law of Canara Bank cited by learned counsel for the petitioner clearly stipulates that the compassionate appointment is given solely on humanitarian grounds with the sole object to provide relief to the employees' family to tide over the sudden financial crisis. The Hon'ble Apex Court in that precedent law has also laid down that as per the scheme, the compassionate appointment cannot be denied on account of financial status of the family. The Hon'ble Apex Court has further held that the Family Benefit Scheme cannot, in any way, be equated with the benefit of compassionate appointments, and 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. 17. The Hon'ble Apex Court has further held that the Family Benefit Scheme cannot, in any way, be equated with the benefit of compassionate appointments, and 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. 17. The Hon'ble Apex Court in Canara Bank has further held that 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. 18. The Hon'ble Apex Court, in the aforesaid precedent law, has therefore, observed that the monetary benefit would not be the replacement of the bread-earner, but that would undoubtedly bring some solace in the given situation. 19. The Hon'ble Apex Court, in the said precedent law, has also laid down the law that the grant of family pension, particularly, the benefits arising out of the death of the breadearner, cannot be treated as substitute for providing employment assistance. 20. It is pertinent to note that in the precedent law of Canara Bank, the employee had died in the year 1998 and the relief of compassionate appointment has been granted in the year 2015. Thus, even if the circumstances of the present case are evaluated on the touchstone of the said precedent law, the case of the present petitioner is on a better footing, than the one in the precedent law of Canara Bank. 21. On the other hand, the judgment in the case of Uco Bank cited by learned counsel for the respondents was dealing with the situation, where the death had occurred in the year 1999, and the application for compassionate appointment moved in the year 1999 itself, was rejected way back in 2006. 22. It is further noted that the precedent law of Uco Bank does not apply in the present set of facts, as the petitioner has been regularly agitating his cause, and has already got two orders of this Hon'ble Court in his favour. 23. 22. It is further noted that the precedent law of Uco Bank does not apply in the present set of facts, as the petitioner has been regularly agitating his cause, and has already got two orders of this Hon'ble Court in his favour. 23. Since the rejection of the candidature of the petitioner for appointment on compassionate ground by the respondents is only on the ground of financial condition of the petitioner's family, therefore, the employment of his mother, shall not have any impact on the merits of the case. The respondents also have not been able to show any part of the scheme, as implemented, which would prohibit appointment on compassionate ground, on account of employment of one of the family members. Furthermore, the only appreciation by the respondents, in pursuance of the directions of this Hon'ble Court in the earlier writ petition, is that the petitioner is not entitled for compassionate appointment, due to good financial condition of his family, which admittedly, as per the precedent of Canara Bank, is not a good ground for denial of compassionate appointment. Thus, the precedent law of Uco Bank, relied upon by learned counsel for the respondents, in its facts, does not apply in the present facts and circumstances. 24. Noticeably, in the present case, the death had occurred in the year 2005, and since then, the petitioner has been agitating the cause before the concerned authorities as well as the courts, and therefore, it cannot be said that his claim is belated for the purpose of grant of compassionate appointment. 25. It is further observed by this Court, while taking into consideration the precedent law of Canara Bank, that favourable treatment given to the dependents of the deceased employee on the Class III & IV posts, has a rational nexus with the object sought to be achieved, which is a relief against destitution. The working at the lowest pedestal in compassionate appointment is a minimum right arising out of the legitimate expectation of the family in lieu of the services rendered by the deceased employee. 26. The working at the lowest pedestal in compassionate appointment is a minimum right arising out of the legitimate expectation of the family in lieu of the services rendered by the deceased employee. 26. In light of the aforesaid observations and the precedent law cited by learned counsel for the petitioner, the present writ petition is allowed and the impugned order dated 22.02.2016 (Annexure-5) is quashed and set aside, and the respondents are directed to give compassionate appointment to the petitioner on the post, for which he possesses the requisite qualification and also against post, which is open for being filled-in by way of compassionate appointment. Such exercise shall be completed within a period of two months from today.