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2019 DIGILAW 1561 (ALL)

State Bank of India v. Sunit Kumar Mishra

2019-07-01

JASPREET SINGH, P.K.JAISWAL

body2019
JUDGMENT : 1. Heard Sri. Anurag Srivastava, learned counsel for the appellants-bank and Sri. Kaushlendra Tripathi, learned counsel for the respondent. This special appeal under Rule 5 of Chapter VIII of the Allahabad High Court Rules, 1952 has been preferred against the judgment and order dated 26.04.2019 passed by learned writ Court in Service Single No. 20863 of 2019 (Sunit Kumar Mishra v. Chief General Manager, State Bank of India and others), whereby the learned writ Court relying upon the decision of Hon'ble Apex Court in the case of Canara Bank and another v. M. Mahesh Kumar, reported in (2015) 7 SCC 412 : ( AIR 2015 SC 2411 ) has quashed the order impugned in the writ petition dated 07.02.2018 passed by Chief General Manager, State Bank of India Lucknow and directed the appellants-bank to consider the candidature of the writ petitioner-respondent for compassionate appointment on a suitable post in the State Bank of India under Dying-in-Harness. 2. The brief facts of the case are that the father of the respondent namely, Udai Nath Mishra was working as a Class-IV employee (Head Jamadar) and was murdered on 29.12.2002 during the service period. After the death of the father of the respondent, the respondent sent a representation dated 09.10.2003 for compassionate appointment on any suitable post in the bank, which was rejected vide order dated 15.04.2005 passed by the appellant No. 3, i.e. Assistant General Manager, S.B.I. Zonal Office Hazratganj, Lucknow on the ground that the mother of the respondent had been paid the terminal benefits (ex-gratia payment of Rs. 5,56,000/-) and the family of the respondent having a land of value Rs. 42,000/- and pension to the tune of Rs. 4284/- per month. Against the aforesaid rejection order dated 15.04.2005, the respondent filed a writ petition before this Court being Service Single No. 4594 of 2005 which was allowed vide judgment and order dated 09.10.2017. The order dated 09.10.2017 reads as under:- "Heard learned counsel for the parties. It is undisputed between the parties that the petitioner is a dependent of late Sri. Udainath Mishra who died while in service holding the post of Head Jamadaar i.e. a Class IV post. The order dated 09.10.2017 reads as under:- "Heard learned counsel for the parties. It is undisputed between the parties that the petitioner is a dependent of late Sri. Udainath Mishra who died while in service holding the post of Head Jamadaar i.e. a Class IV post. The facts stated in the counter affidavit reveal that a scheme for compassionate appointment was available according to which one member of the dependent family was entitled to be considered for appointment as per the scheme at the relevant point of time. The scheme is contained in Annexure No. 1 to the counter-affidavit filed on behalf of the Bank. The impugned order rejecting the claim of the petitioner proceeds on the basis of dictum of the Hon'ble Apex Court in the case of Umesh Kumar Nagpal v. State of Haryana, reported in (1994) 4 SCC 138 : (1994 AIR SCW 2305). It is also evident from the impugned order that the terminal benefits and payment of pension have been treated to be the mitigating factors for the assessment of indigent condition of the dependents at the time of deceased employee's death. The assessment of income from various sources largely corresponds to the terminal benefits and pension. In this background, learned counsel for the petitioner citing a judgment of the Apex Court reported in (2015) 7 SCC 412 : ( AIR 2015 SC 2411 ) and drawing attention of this Court to paragraph 17 onwards has argued that ex-gratia payment and terminal benefits including payment of pension is not the premise on the basis of which eligibility of a dependent is to be ascertained for the purpose of compassionate appointment. It is true that the judgment rendered by the Apex Court relates to the scheme applicable to the Canara Bank but from the provisions contained in the scheme insofar as it is applicable to the employees of State Bank of India, the scheme does not appear to be at variance and no substantial difference is noticed by this Court insofar as the criteria is concerned. Similar provisions for the consideration of minor as has been interpreted in the Apex Court judgment exist in the present scheme applicable to the employees of State Bank of India, thus, there is no reason as to why the latest judgment rendered by the Apex Court (supra) be not considered to be the good law. Similar provisions for the consideration of minor as has been interpreted in the Apex Court judgment exist in the present scheme applicable to the employees of State Bank of India, thus, there is no reason as to why the latest judgment rendered by the Apex Court (supra) be not considered to be the good law. Learned counsel for the Bank has however submitted that once the criteria as per the scheme is explicit and the scheme as such has not been held to be arbitrary in such circumstances interference with the order passed by the competent authority would not be reasonable. Learned counsel for the respondent has further submitted that the judgment referred to in the impugned order was rendered in the context of the scheme as is applicable to the State Bank employees and this judgment has not been referred to in the judgment upon which learned counsel for the petitioner has placed reliance. This Court has already noted above that the scheme of Canara Bank for compassionate appointment as compared to the scheme applicable to the employees of State Bank does not stand at variance. Thus the position of law has to be construed in the light of judgment of the Apex Court which has ultimately crystallized upon the consideration of earlier judgments. Hence there is no escape from the principle which the Apex Court has laid down in the judgment which the petitioner has relied upon. Since the bank has ascertained the eligibility of the petitioner by taking into account the payment of pension and terminal benefits which runs contrary to the later judgment, hence the matter calls for reconsideration. In the result, the impugned order dated 15.04.2005 passed by the respondents-bank contained in Annexure No. 6 to this petition is hereby set aside and the matter is remitted to the competent authority for fresh consideration in the light of Apex Court judgment referred to above. This exercise shall be completed not later than a period of four months from the date a certified copy of this order along with representation is filed. The petition is disposed of." 3. The appellants-State Bank of India challenged the aforesaid Judgment and order dated 09.10.2017 by means of filing a Special Appeal No. 543 of 2017 (State Bank of India Lucknow and others v. Sunit Kumar Mishra) which was disposed of vide Judgment and order dated 01.12.2017. The petition is disposed of." 3. The appellants-State Bank of India challenged the aforesaid Judgment and order dated 09.10.2017 by means of filing a Special Appeal No. 543 of 2017 (State Bank of India Lucknow and others v. Sunit Kumar Mishra) which was disposed of vide Judgment and order dated 01.12.2017. The order dated 01.12.2017 reads as under:- Heard Mr. Anurag Srivastava, learned counsel for the appellants. Counsel for the appellants, submits that they shall consider the case of the respondent, as observed by the Court, not only in the light of the judgment of the Supreme Court in Canara Bank & Ors. v. M. Mahesh Kumar & Ors., (2015) 7 SCC 412 : ( AIR 2015 SC 2411 ), but also in the light of other judgments of the Supreme Court and the High Courts that may be relevant for deciding the respondent's case afresh. The appeal is accordingly disposed of. It is open to the appellants-Bank to consider other judgments, as aforementioned, that may be relevant for deciding the respondent's claim, and pass appropriate order in accordance law. 4. Thereafter, the appellants filed a correction/modification application for correction/modification of the order dated 01.12.2017 passed in the aforesaid special appeal which was also rejected vide order dated 06.03.2018. 5. It is evident from the order dated 09.10.2017 passed by the learned writ Court that the learned writ Court had directed the bank-appellant to consider the candidature of the writ petitioner-respondent afresh in the light of decision rendered by Hon'ble Apex Court in the case of Canara Bank ( AIR 2015 SC 2411 ) (supra) but on 07.02.2018, the appellant No. 1 rejected the claim of the respondent for appointment in subordinate cadre on the ground that no indigent circumstances did exist in the family of the deceased at the relevant point of time and the respondent was over age by 3 years, 3 months and 22 days. The learned writ Court after appreciating the order passed in the earlier round of litigation came to the conclusion that the bank has rejected claim of the respondent on the ground, that no scheme of compassionate appointment was existing in the State Bank of India and has further reiterated the earlier ground, which has been turned down by this Court vide Judgment and order dated 09.10.2017. The learned writ Court after considering the rival submissions of learned counsel for the parties and after perusing the material available on record came to the conclusion, that the order dated 07.02.2018 being illegal, arbitrary, discriminatory and violative of Articles 14, 16 and 21 of the Constitution of India and therefore, quashed the same vide Judgment and order dated 26.04.2019 which is under challenge before this Court. The relevant part of the order dated 26.04.2019 is quoted below:- "Considering the rival submissions of the learned counsel for the parties and perusing the material available on record, I am of the considered view that the order dated 7.2.2018 passed by the opposite party No. 1 is not sustainable in the eyes of law for the reason that the opposite party No. 1 has not abided by the specific direction of this Court dated 9.10.2017 passed in Suneet Kumar Mishra (supra) (Annexure No. 6 to the writ petition) as the said judgment has neither been stayed nor been set aside by the Division Bench of this Court in Special Appeal No. 543 of 2017, therefore, the judgment and order dated 9.10.2017 has become final for all practical purposes. By means of aforesaid judgment and order dated 9.10.2017 (supra) this Court had considered each and every submission of the learned counsel for the Bank, more particularly the submission of the learned counsel for the Bank in respect of non-existence of the policy in the S.B.I, but this Court was pleased to observe that there is no scope from deviating the principal which the Apex Court has laid down in the judgment which the petitioner has relied upon. By returning such findings this Court vide judgment and order dated 9.1.2017 has held that since the Bank has ascertained the liability of the petitioner by taking into account the payment of pension and terminal benefits which runs contrary to the letter and spirit of the judgment, hence, the matter was remitted back to the competent authority to take a fresh decision in the light of dictum of Hon'ble Apex Court in re: Canara Bank (supra) by setting aside the earlier impugned order dated 15.4.2005. Therefore, in view of the above the Bank authorities may not turn around and submit absolutely a new ground which could have been placed before this Court in earlier writ petitions. Therefore, in view of the above the Bank authorities may not turn around and submit absolutely a new ground which could have been placed before this Court in earlier writ petitions. I have also seen the dictum of Hon'ble Apex Court in re: Canara Bank (supra) wherein Hon'ble Apex Court has considered so many judgments relevant for the issue in question and thereafter dismissed the civil appeal filed by the Canara Bank. As per my view paras 17, 20 and 21 of the judgment of Hon'ble Apex Court in re: Canara Bank (supra) are necessary to be reproduced here-in-below for the better appreciation of the issue in question as under: "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. 20. In Balbir Kaur & Anr. v. Steel Authority of India Ltd. & Ors., (2000) 6 SCC 493 : ( AIR 2000 SC 1596 ), 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. 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 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." Therefore, in view of the above, the impugned order dated 7.2.2018 is liable to be quashed being illegal, arbitrary, discriminatory and violative of Articles 14, 16 and 21 of the Constitution of India and accordingly the order dated 7.2.2018 passed by the Chief General Manager, State Bank of India, Lucknow, opposite party No. 1 is accordingly quashed. The writ in the nature mandamus is issued commanding the opposite parties to consider the candidature of the petitioner for compassionate appointment on any suitable post in the State Bank of India under Dying in Harness. The opposite parties are directed to make compliance of the aforesaid order within a period of 8 weeks from the date of production of certified copy of the order of this Court. Accordingly, writ petition is allowed." 6. Learned counsel for the appellants-bank has submitted that the impugned order passed by the learned writ Court is violative of the order dated 01.12.2017 passed by the Division Bench of this Court in Special Appeal No. 543 of 2017. Accordingly, writ petition is allowed." 6. Learned counsel for the appellants-bank has submitted that the impugned order passed by the learned writ Court is violative of the order dated 01.12.2017 passed by the Division Bench of this Court in Special Appeal No. 543 of 2017. The facts in the case of Canara Bank ( AIR 2015 SC 2411 ) (supra) is different from the facts of the case in hand. The Division Bench of the Principal Seat passed a Judgment and order dated 29.02.2016 in Special Appeal No. 1829 of 2010 (Shreyas Gramin Bank v. Smt. Kasturi Devi) wherein the issue of Canara Bank (supra) has been distinguished and therefore, the aforesaid fact has not been considered by the learned writ Court while passing the impugned Judgment and order. He has also submitted that the Judgment of Hon'ble Apex Court in the case of Canara Bank (supra) has been referred to larger Bench for reconsideration and therefore, prays for setting aside the impugned Judgment and order dated 24.04.2019 passed by learned writ Court. 7. On the other hand, learned counsel for the respondent has drawn out attention to the order passed by learned writ Court dated 09.10.2017 passed in Service Single No. 4594 of 2005 as well as order dated 01.12.2017 passed in Special Appeal No. 543 of 2017 and also the order dated 06.03.2018 passed on the modification application and has submitted that the appellant-bank is bound to consider the candidature of the respondent in terms of the observations and direction passed by the writ Court. In the earlier round of litigation, the appellants-bank without considering the aforesaid observations and directions rejected the candidature of the respondent for appointment on compassionate ground and on the same line again rejection order dated 07.02.2018 has been passed which has been rightly quashed by the learned writ Court. He further submitted that the Hon'ble Apex Court in para 13 of the Canara Bank ( AIR 2015 SC 2411 ) (supra) has very categorically held that the family benefits and claim cannot be in any way equated with the benefit of compassionate appointment. The grant of family pension or payment of terminal benefits cannot be treated as a substitute for providing employment assistance and prays for dismissal of the instant appeal. 8. The grant of family pension or payment of terminal benefits cannot be treated as a substitute for providing employment assistance and prays for dismissal of the instant appeal. 8. On due consideration of the aforesaid, so also the fact, that the father of the respondent was murdered on 29.12.2002 during his service period and on 19.04.2003, the policy of compassionate appointment has been introduced by the State Bank of India, thereafter on 04.10.2003, the respondent submitted an application for appointment on compassionate ground and at that the relevant point of time, the respondent was not over age, thus there was no scope for the appellants-bank to deviate from the principle laid down by the learned writ Court's order dated 09.10.2017 which has been affirmed vide order dated 01.12.2007 with the observations that the case of the respondent shall be considered in the light of Hon'ble Apex Court Judgment rendered in the case of Canara Bank ( AIR 2015 SC 2411 ) (supra) and other judgments passed by Hon'ble Apex Court as well as by this Court for deciding the case of the respondent afresh. 9. After considering the arguments advanced by learned counsel for the parties as well as perusing the averments made in the writ petition and material on record, this Court is of the view, that the learned writ Court has rightly quashed the order dated 07.02.2018 vide Judgment and order dated 26.04.2018 and issued directions to the appellants-bank to consider the candidature of the respondent for compassionate appointment in exceptional circumstances on any suitable post in the Bank under Dying in Harness which Judgment and order suffers from no legal infirmity. The ground of family pension or payment of terminal benefits cannot in any way be equated with the benefit of compassionate appointment. 10. The special appeal filed by the appellants do not call for any interference by this Court in exercise of powers conferred under appellate jurisdiction and is accordingly, dismissed. No order as to costs.