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2019 DIGILAW 115 (ORI)

Chairman, Odisha Gramya Bank v. Abdul Ahad

2019-02-08

J.P.DAS, S.K.MISHRA

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JUDGMENT : J.P. Das, J. The intra Court appeal has been filed assailing the judgment dated 03.04.2018 passed by the learned Single Judge in W.P. (C) No.9871 of 2004 directing the present appellant, who was the opposite party in the aforesaid writ application to provide the petitioner's family with a sum of Rs. 1,50,000/- (Rupees one lakh fifty thousand) as interim compensation and to make the petitioner entitled to a suitable post commensurating to his education in its any Branch in the Cuttack district, within a period of two months from the date of the order when the petitioner files an affidavit of his unemployment in the meantime. 2. The writ petition was filed by the present respondent with the submissions that while his father Abdul Rojak working as a Driver in Cuttack Gramya Bank died in harness at the age of 49 years on 26.04.2001, leaving behind the widow mother of the petitioner, one married daughter, three unmarried daughters including two minors besides the petitioner. The family of the petitioner having no other source of livelihood, the petitioner, who was 21 years old at the relevant point of time, made an application to the Chairman of Cuttack Gramya Bank for an appointment on compassionate ground under the provisions of the scheme floated on 29.09.2001 by the Cuttack Gramya Bank, which provided for employment for the dependants of the deceased employee on compassionate ground in case of death after 1sl May of 1996. The matter was enquired into as per procedure and it was found that the petitioner's family was in dire financial distress. On 05.01.2002, the Chairman of the Bank intimated the petitioner that since there was no vacancy available in their Bank the case of the petitioner for compassionate appointment could not be considered. The mother of the petitioner made another representation on 16.08,2002 and the petitioner also submitted subsequent representations on 29.11.2003 and 22.06.2004 bringing to the notice of the authority that he had passed +3 Arts in the meantime and was willing to accept any post in the Bank. Every time the Bank authority was answering him with the same reply that there was no vacancy. Ultimately, the petitioner filed the writ application seeking a direction from the Court to the Bank Authority for providing him with an appointment as a Junior Clerk, or Messenger or any other post in the bank on compassionate ground. Every time the Bank authority was answering him with the same reply that there was no vacancy. Ultimately, the petitioner filed the writ application seeking a direction from the Court to the Bank Authority for providing him with an appointment as a Junior Clerk, or Messenger or any other post in the bank on compassionate ground. It was contended on behalf of the opposite party-appellant, in the writ application that providing employment on compassionate ground is not a matter of right and the petitioner could not be accommodated due to non-availability of vacancy at the relevant point of time. It was further contended that the scheme of compassionate appointment was subject to availability of vacancy in the Bank and as per instructions of the sponsored Bank of Cuttack Gramya Bank, namely, UCO Bank, the compassionate appointment was to be considered subject to availability of vacancy and since there was no vacancy at the relevant point of time, the claim of the petitioner in the writ application could not be considered. 3. Learned Counsel appearing for the opposite party-appellant relying upon a number of decisions of Hon'ble Apex Court submitted that the compassionate appointment is always subject to availability of vacancy and hence, no illegality was committed in rejecting the application of the petitioner, so as to call for any interference by the Writ Court. Thus it was submitted that the impugned judgment passed by the learned Single Judge is not sustainable in law and is liable to be set aside. 4. It was not in dispute that the scheme for appointment of the dependants of the deceased employee on compassionate ground covering the cases of death since 1st of May, 1996 was floated by the Cuttack Gramya Bank and it was also not in dispute that the father of the petitioner died while he was in service at the age of 49 years and therefore, as per the floated scheme, the petitioner was entitled for appointment under the scheme on compassionate ground. The only contention raised on behalf of the present appellant-opposite party was that the employment was subject to availability of vacancy and since there was no vacancy at the relevant point of time, the case of the petitioner-respondent could not be considered. The only contention raised on behalf of the present appellant-opposite party was that the employment was subject to availability of vacancy and since there was no vacancy at the relevant point of time, the case of the petitioner-respondent could not be considered. The learned Single Judge quoting the scheme has found out that as per the scheme, the petitioner had a sustainable claim and as per the scheme, he was also entitled for compensation of lump sum amount as per the Clause-6 of the said scheme. The learned Single Judge referring to certain decisions of the Apex Court and considering the observations made therein came to a conclusion that for no proper and timely consideration of the case of the petitioner in spite of positive recommendation by the Chairman, even though the petitioner had a sustainable claim, the sufferings of the petitioner and his family remained unexplainable. Considering the fact that the petitioner has reached the age of 38 years in the meanwhile and lifting a family from distress having been lost after so many years, the learned Single Judge directed the appellant-opposite party to find out a placement of the petitioner commensurating to his educational qualification in its organization and considering the delay in disposal of the writ application and taking into account the sufferings of the family of the petitioner during all these years, a direction was further given to the appellant-opposite party to provide a sum of Rs. 1,50,000/-as financial support to the petitioner's family to over-come the miseries they have suffered in the meantime. 5. The sole contention raised by the learned Counsel for the appellant before us was that the findings of Hon'ble Apex Court, those have been relied upon by the learned single Judge, were always subject to availability of vacancies for providing employment on compassionate ground. Relying on the decisions, reported in AIR 1996 Supreme Court 2226 (Himachal Road Transport Corporation v. Dinesh Kumar), AIR 1997 Supreme Court 123 (Hindustan Aeronautics Ltd. v. A. Radhika Thirumala), 2010 (Vol.11) SCC 671 (State Bank of India & Anr. v. Raj Kumar), it was submitted by learned Counsel for the appellant that the appointment under compassionate scheme is always subject to availability of the post. v. Raj Kumar), it was submitted by learned Counsel for the appellant that the appointment under compassionate scheme is always subject to availability of the post. It was further submitted by the learned Counsel for the appellant that in the meantime, Cuttack Gramya Bank and Balasore Gramya Bank amalgamated into a single entity as Kalinga Gramya Bank and subsequently, having merged along with other banks was re-designated as Odisha Gramya Bank. Hence, the scheme available at the relevant point of time being not in force, the petitioner's claim cannot be considered. 6. It was submitted on behalf of the respondent that the sole contention raised on behalf of the appellant as opposite party in the writ application that there was no vacancy was not correct. In the rejoinder filed by the petitioner to the counter-affidavit filed by the present appellant-opposite party in the writ application, it was specifically averred by the petitioner that the vacancies arose in different posts due to resignation, dismissal and death of certain employees since the year 2002 and subsequent thereto. In reply thereto, in the additional affidavit filed on behalf of the opposite party-appellant, it was submitted that arising of vacancies as submitted by the petitioner was after the opposite party Bank accorded finality to the request of the petitioner for compassionate appointment in its letter dated 05.01.2002 due to non-availability of vacancy at the specific point of time. The vacancies as pointed out by the petitioner were subsequent to the rejection of the application of the petitioner. Hence, it was contended that the claim of the petitioner could not have been allowed to subsist for indefinite period or to be considered as and when vacancies would arise in absence of any such provision in the scheme. It was further submitted that after a lapse of 12 years, i.e., in the year 2013, the father of the petitioner having died in the year 2001, there was no such emergency to be considered in favour of the petitioner. Similar contentions were raised on behalf of the opposite party-appellant before us also in course of hearing of the appeal. 7. We are unable to accept such contentions made on behalf of the appellant for the reason that the vacancies arose shortly after the application of the petitioner was rejected. Similar contentions were raised on behalf of the opposite party-appellant before us also in course of hearing of the appeal. 7. We are unable to accept such contentions made on behalf of the appellant for the reason that the vacancies arose shortly after the application of the petitioner was rejected. At the first instance, the case of the petitioner was treated to be closed since it was rejected due to non-availability of the vacancies. But, it is not disputed and is on record that the petitioner as well as his widow mother were making representations till 2004 and ultimately the petitioner filed the writ application having received no response from the side of the appellant-Bank The submissions and the materials on record made it abundantly clear that the scheme of compassionate appointment for the family members of the deceased employee was in vogue during the relevant period and that the petitioner so also his widow mother made repeated representations for such appointment and that even though there was no vacancy when the first application was made, still vacancy arose immediately subsequent thereto. It has been repeated observations of the Hon'ble Apex Court that in all claims for appointment on compassionate grounds, there should not be any delay in making such appointment, since it is for the purpose of mitigating the hardship of the family due to death of the bread earner ( AIR 1991 S.C. 469 (Smt. Phoolwati v. Union of India and Ors.) In the similar line, it can be said that the employer rejecting such an application due to non-availability of vacancy at the specific point of time cannot close its eyes for all times to come shrugging off its shoulder the responsibility of providing appointment on compassionate ground under the existing scheme even though vacancies arose shortly thereafter as in the present case. It has been specific observation of the Hon'ble Apex Court in the case of Canara Bank & Anr. v. M. Mahesh Kumar reported in AIR 2015 (S.C.) 2411 that the employer is not justified in contending that the application for compassionate appointment cannot be considered in view of passage of time. As stated earlier, it is on record that the petitioner mentioning his educational qualification kept on making representations to the employer-Bank for any appointment to a suitable post. In the case of Smt. Sushma Gosain and others v. Union of India & Ors. As stated earlier, it is on record that the petitioner mentioning his educational qualification kept on making representations to the employer-Bank for any appointment to a suitable post. In the case of Smt. Sushma Gosain and others v. Union of India & Ors. reported in (1989) 4 SCC 468 , the Hon'ble Apex Court even went on to direct for creation of supernumerary post to give appointment to the daughter of the deceased whose application was illegally rejected on the ground that no female member could have been appointed against the available post and such direction was after a lapse of seven years from the date of the application. All the case laws cited on behalf of the appellant related to the position that appointment on compassionate ground is always subject to availability of vacancies. The said position is not disputed but the same is not applicable to the present case for the reason discussed hereinbefore. 8. Thus, we find no ground to take a separate view from what has been taken by the learned Single Judge that the petitioner is entitled to be considered for an appointment despite the passage of time. Another contention raised on behalf of the appellant was that in the meantime, the original employer, namely, Cuttack Gramya Bank has lost its existence and has merged along with the three other Banks to another entity of Odisha Gramya Bank. The relevant notification dated 7th of January, 2013 of the Government of India, Ministry of Finance ( Department of Financial Services) was annexed as Annexure-A to the Additional Affidavit filed on behalf of the appellant-opposite party before the learned writ Court. It is seen from the Clause 5(a) of the said notification that "the undertakings of the transferor Regional Rural Banks shall include all assets, rights xx xx xx xx xx xxx and also be deemed to include all borrowing, liabilities and obligations of whatever kind then subsisting of the transferor Regional Rural Banks". Thus, submitting that the original employer Bank is no more in existence due to the merger, the appellant-Bank cannot escape the liability which shifted to its shoulder at the time of merger as per notification stated above. The direction of the learned Single Judge for payment of a lump sum amount as compensation was quite justified in view of the sufferings of the petitioner's family during all these years. 9. The direction of the learned Single Judge for payment of a lump sum amount as compensation was quite justified in view of the sufferings of the petitioner's family during all these years. 9. In view of the aforesaid findings of facts and position of law, we find no merit in this writ appeal to interfere with the findings and directions of the learned Single Judge in the writ application to be carried out in letter and spirit and accordingly, the writ appeal being devoid of merits stands rejected. 10. Ordered accordingly.