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Allahabad High Court · body

2019 DIGILAW 2466 (ALL)

Mukesh Kumar v. Union of India

2019-11-01

SUNITA AGARWAL

body2019
JUDGMENT : 1. Heard learned counsel for the parties and perused the record. 2. The challenge in the present petition is to order of rejection of claim of the petitioner for grant of compassionate appointment. The reason given therein is that the scheme of compassionate appointment was not available in the Bank on the date of death of the employee, i.e. father of the petitioner. 3. Submission of learned counsel for the petitioner is that the petitioner's father who was working as Accounts Officer with the respondent Bank had died on 12.5.2018. As the salary of the petitioner's father was the only source of income of the family, the petitioner's mother moved an application dated 8.4.2019 for grant of compassionate appointment to the petitioner herein with the consent of all other dependants of the deceased employee. The prayer of the petitioner's mother had wrongly been rejected by the order impugned though the scheme of compassionate appointment was available in the Bank, w.e.f 15.3.2019. 4. It is contended that on demand of the employees of the Public Sector Banks, the Government of India had approved the scheme of compassionate appointment and a communication dated 7.8.2014 was sent to all Public Sector Banks for adoption of the said scheme w.ef. 5.8.2014. It was further communicated by the letter dated 5.12.2014 issued by the Under Secretary to the Government of India, Ministry of Finance that the Banks can have both the options, i.e. to offer compassionate appointment or payment of lump sum ex-gratia amount. However, for providing any of the above two benefits, it is necessary that other conditions of compassionate appointment are met. In the light of the said communication, the Scheme of compassionate appointment became operative in all Public Sector Banks. 5. Thereafter, by the letter dated 3.11.2014, the National Bank for Agricultural Rural Development (NABARD) wrote to the Government of India to extend the scheme of compassionate appointment approved by it on 5.8.2014 to the Regional Rural Banks, they being Public Sector Banks established under the Regional Rural Banks Act, amended by Act No. 140 of 2015. The Government of India having realised discrimination to the employees of Regional Rural Banks extended the Scheme of compassionate appointment, approved by it for Public Sector Banks, to the Regional Rural Bank by means of the communication dated 31.12.2018. The Government of India having realised discrimination to the employees of Regional Rural Banks extended the Scheme of compassionate appointment, approved by it for Public Sector Banks, to the Regional Rural Bank by means of the communication dated 31.12.2018. The Board of respondent Bank, however, had adopted the scheme of compassionate appointment, w.e.f 15.3.2019, though it had been communicated that the scheme was approved by the Government of India on 7.8.2014 and has been made applicable w.e.f 5.8.2014. 6. With the above facts, it is vehemently contended by the learned counsel for the petitioner that adoption of scheme of compassionate appointment by the Board of the Regional Rural Banks was only a ministerial exercise and it was not open for the Board to make any distinction in the matter of applicability of the scheme of compassionate appointment. The scheme was to be applied w.e.f 5.8.2014 as had been done for the employees of Public Sector Banks. There was no justification for discrimination between two sets of employees and the artificial classification made by the Board of the Bank is wholly arbitrary, discriminatory and violative of Article 14 of the Constitution of India. 7. In the alternative, it is contended that once the respondent Board had acknowledged that the scheme of compassionate appointment was adopted on 15.3.2019, the application moved by the petitioner's mother on 8.4.2019, i.e. after implementation of the scheme could not have been rejected on the ground that the said scheme was not available on the date of death of the petitioner's father. It is contended that the date of death of an employee can have no relation with the claim of compassionate appointment as the dependant of a deceased employee has no vested right to seek compassionate appointment. In fact no cause of action accrued to the petitioner on the date of death of the employee to seek compassionate appointment as only right was to seek consideration of his claim which had accrued either on the date of the application or the date of the consideration of the same. In the instant case, on both dates, i.e. when the claim for compassionate appointment was filed and considered, the scheme of compassionate appointment was in vogue. The relevant date being the date of consideration of the application and not the date of death of the employee, the rejection order cannot be sustained. 8. In the instant case, on both dates, i.e. when the claim for compassionate appointment was filed and considered, the scheme of compassionate appointment was in vogue. The relevant date being the date of consideration of the application and not the date of death of the employee, the rejection order cannot be sustained. 8. Further, the application seeking compassionate appointment having been moved within a period of five years from the death of the employee, as per Clause-8 of the scheme itself, the time limit for considering application had not expired. The application having been given within the limitation period prescribed in the scheme could not have been rejected. 9. Furthermore, the Clause-8 of the scheme provides the procedure for disposal of application for compassionate appointment. Being procedural subordinate legislation, it has to be given retrospective effect. Moreover, in view of the fact that the scheme of compassionate appointment is beneficial legislation, the bank can not discriminate by making an artificial classification in implementation of the scheme of compassionate appointment by relating it to the date of death of the employee. There is no justification for the said classification made by the Bank, as it cannot insist that compassionate appointment would be extended to dependants of only those employees who had died after implementation of the scheme, i.e. 15.3.2019. 10. It is submitted that such a situation came before the Apex Court and in the case of State Bank of India and others vs Sheo Shankar Tewari, (2019) 5 SCC 600 noticing the conflict in the judgments of the Apex Court in Canara Bank and another vs M. Mahesh (2015) 7 SCC 412 , SBI vs Raj Kumar (2010) 11 SCC 661 , MGB Gramin Bank vs Chakrawarti Singh (2014) 13 SCC 583 and SBI vs Jash pal Kaur (2007) 9 SCC 571 , the issue has been referred to the Larger Bench by the order dated 8.2.2019. It is contended that the appellate bank therein itself had taken a stand that there was no vested right with the dependants of the deceased to seek consideration under the former scheme and the governing scheme would be one which was applicable when the application came up for consideration. It is contended that the appellate bank therein itself had taken a stand that there was no vested right with the dependants of the deceased to seek consideration under the former scheme and the governing scheme would be one which was applicable when the application came up for consideration. On the other hand, the contention of the applicant therein was that the governing scheme would be the former scheme ie; the scheme available on the date of the application and scrapping of the former scheme for compassionate appointment after the claim was raised was of no effect. 11. Learned Senior counsel appearing for the respondent bank in rebuttal vehemently submits that the compassionate appointment is an exception to the general rule of appointments in the public services which should be made strictly from the open market by inviting applications on merit of all eligible applicants. As has been held by the Apex Court in Umesh Kumar Nagpal vs State of Haryana, (1994) 4 SCC 138 , the scheme of compassionate appointment has to be given strict construction. It cannot be treated as a benevolent or beneficial legislation like any other scheme. Similar issue came up before the Apex Court in State of Jharkhand and others vs Shiv Karampal Sahu, (2009) 11 SCC 453 wherein it is held that the benevolent circular or scheme cannot be extended to a case which was not contemplated by the scheme itself. Liberal construction cannot be given in the matter of implementation of the beneficial legislation which has a scheme of its own and where there is no vagueness or doubt therein. 12. Placing the scheme of compassionate appointment applied in the Regional Rural Banks w.e.f 15.3.2019, it is contended that the Clause-1 regarding 'Coverage' of the Scheme shows that it cannot be given retrospective effect. Clause-1.1(a) provides that compassionate appointment can be given to the dependant family member of a permanent employee of bank who dies while in service. Meaning thereby, the scheme covers only those claims for which cause of action arose after implementation of the scheme w.e.f 15.3.2019, i.e. in case of death of the employee after the said date. Clause-1.1(a) provides that compassionate appointment can be given to the dependant family member of a permanent employee of bank who dies while in service. Meaning thereby, the scheme covers only those claims for which cause of action arose after implementation of the scheme w.e.f 15.3.2019, i.e. in case of death of the employee after the said date. In the instant case, the application having been made after approximately one year from the date of death of the employee ie 8.4.2019 and as there was no pending claim on the date of implementation of the scheme, Clause-8 is not attracted at all. 13. The judgments in MGB Gramin Bank (supra), Canara Bank (supra) have been placed before the Court to submit that the ratio of the said decisions do not apply in the present case for the reason that both the above judgments were delivered in the peculiar facts and circumstances of those cases, where changes in the scheme were brought during pendency of the application for compassionate appointment. 14. The conflict noted in the case of State Bank of India and others vs Sheo Shankar Tewari reported in (2019) 5 SCC 600 by the Apex court therefore, has no relevance in the present case. 15. In the light of the above submissions, it would be apt to first consider the well settled principles of law pertaining to grant of compassionate appointment. In Umesh Kumar Nagpal vs (supra) it was emphasized by the Apex Court that a compassionate appointment cannot be claimed as a matter of course as the object is not to give appointment to a member of the family rather the whole object of granting compassionate appointment is to enable the family to meet immediate financial crisis. 16. The source of livelihood provided by compassionate appointment is an exception in favour of the dependants of an employee dying in harness. Mere death of employee in harness does not entitle his family to such source of livelihood. The exception carved out to the general rules of appointments in public services is to be followed strictly in every case. 16. The source of livelihood provided by compassionate appointment is an exception in favour of the dependants of an employee dying in harness. Mere death of employee in harness does not entitle his family to such source of livelihood. The exception carved out to the general rules of appointments in public services is to be followed strictly in every case. The Government or the public authority concerned has to examine the financial condition of the family of the deceased, it is only if it satisfied, that but for provision of employment, the family will not be able to meet the crisis that the job is to be offered to the eligible member of the family (emphasis added). 17. In Bhawani Prasad Sonkar vs Union of India and others, (2011) 4 SCC 209 it was held that while considering a claim for employment on compassionate ground, the following factors have to be borne in mind:- “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 bread winner 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.” 18. (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.” 18. Keeping in mind the object of the compassionate appointment in the light of the above principles, it is evident that an application for compassionate appointment has to be preferred without any delay and has to be considered within a reasonable period of time. Any delay on the part of the dependants of the deceased employee has to be explained in order to enable the public authority to examine whether the family of the deceased would not be able to meet the crisis unless a job is offered to the eligible member of the family. Noteworthy is the fact that in the instant case, no explanation has been offered by the petitioner for moving application after a period of one year from the date of death of the employee when admittedly he was eligible being major and having completed his studies (graduation) in the year 2015. 19. Further, it is settled that the scheme for grant of compassionate appointment must be considered in terms of the stipulations made in the Circular letters containing the policy decisions. Such a scheme cannot be given liberal construction. In the case of the State of Jharkhand and others (supra), the Apex Court has stated the following :- “11. The scheme for grant of monetory compensation to the dependents of the deceased or injured who are affected in any kind of terrorist/virulent/communal attack must be considered in terms of the stipulations made in the circular letters containing policy decisions. Appointment on compassionate ground, it is trite, must be made keeping in view the provisions contained in Articles 14 and 16 of the Constitution of India. Such schemes cannot be given an expansive meaning as the constitutional scheme envisages that all persons who are entitled to be considered for appointment would be eligible for being considered therefor. Any policy decision for appointment on compassionate ground must, therefore, receive a strict construction.” 13. A circular letter providing for appointment on compassionate ground in case of death of a government servant cannot be extended in case of the dependents of the deceased who was not a government servant. Any policy decision for appointment on compassionate ground must, therefore, receive a strict construction.” 13. A circular letter providing for appointment on compassionate ground in case of death of a government servant cannot be extended in case of the dependents of the deceased who was not a government servant. A public employment must be offered to a person who is entitled therefor. All recruitments subject to just exceptions must be made in terms of the rules framed under the proviso appended to Article 309 of the Constitution of India. A circular letter issued by the State cannot be issued de hors the constitutional scheme of making offer of public appointment. [See Official Liquidator vs. Dayanand & ors. [ (2008) 10 SCC 1 para 52]; State of Bihar vs. Upendra Narayan Singh & Ors. [ (2009) 4 SCALE 282 para 19]; and Man Singh v. Commissioner, Garhwal Mandal, Pauri & Ors. [2009 (4) SCC 645]. 14. Moreover, a benevolent circular, it is well known, cannot be extended to a case which was not contemplated by the circular itself. In Regional Director, Employees' State Insurance Corporation, Trichur vs. Ramanuja Match Industries [ AIR 1985 SC 278 ], this Court held: "...We do not doubt that beneficial legislations should have liberal construction with a view to implementing the legislative intent but where such beneficial legislation has a scheme of its own there is no warrant for the Court to travel beyond the scheme and extend the scope of the statute on the pretext of extending the statutory benefit to those who are not covered by the scheme." 15. In Deepal Girishbhai Soni & ors. vs. United India Insurance Co. Ltd., Baroda [ (2004) 5 SCC 385 ], it was opined : "53. Although the Act is a beneficial one and, thus, deserves liberal construction with a view to implementing the legislative intent but it is trite that where such beneficial legislation has a scheme of its own and there is no vagueness or doubt therein, the court would not travel beyond the same and extend the scope of the statute on the pretext of extending the statutory benefit to those who are not covered thereby." 20. It has been further held therein that in the matter of construction and application of subordinate legislation, the rule of incorporation by reference should not be applied unless a clear case is made out therefor. It has been further held therein that in the matter of construction and application of subordinate legislation, the rule of incorporation by reference should not be applied unless a clear case is made out therefor. Ordinarily a subordinate legislation should not be construed to be retrospective in operation. The circular letter providing scheme of compassionate appointment should be given prospective effect. It was further held in para-'16' and 17' as under :- “16. Furthermore, in the matter of construction or application of subordinate legislation the rule of incorporation by reference should not be applied unless a clear case is made out therefor. The circular letter dated 21.9.1987 is an independent one. It operates in its own field. There is no scope of reading both the circulars together. Even if they could be read, the general circulars in regard to the appointment on compassionate ground which were again applicable to the cases of dependents of the deceased employees either for the purpose of consideration of the period during which such appointments were to be made or otherwise could not have been taken into consideration for the purpose of grant of benefit to which he was not otherwise entitled to. In Management of Indian Bank & Anr. vs. Ramachandran & ors. [JT 2007 (13) SC 436], it has been held: "It is now a trite law that for the purpose of construing a statute, reference to another statute is not permissible and, thus, Regulation 21 of the Civil Services Pension Rules contemplates a different situation, the same will have no application in the instant case. The High Court, therefore, committed an error in relying on the said provision." 17. Ordinarily, a subordinate legislation should not be construed to be retrospective in operation. The circular letter dated 7.5.2003 was given a prospective effect. The father of the respondent died on 19.5.2000. There is nothing to show that even circular dated 9.8.2000 had been given retrospective effect. In any view of the matter, as the State of Jharkhand in the circular letter dated 7.5.2003 adopted the earlier circular letters issued by the State of Bihar only in respect of cases where death had occurred after 15.10.2000, i.e., the date from which the State of Jharkhad came into being, the High Court, in our opinion, committed a serious error in giving retrospective effect thereto indirectly which it could not do directly. Reasons assigned by the High Court, for the reasons aforementioned, are unacceptable.” 21. In the case of MGB Gramin Bank (supra), considering the object for compassionate appointment as laid down in Umesh Kumar Nagpal (supra) it was held in para-'8' as under :- “8. An ‘ameliorating relief ’ should not be taken as opening an alternative mode of recruitment to public employment. Furthermore, an application made at a belated stage cannot be entertained for the reason that by lapse of time, the purpose of making such appointment stands evaporated.” 22. Furthermore, it was held therein that as the appointment on compassionate ground cannot be claimed as a matter of right nor an applicant becomes entitled automatically for appointment with the death of the employee in harness, a dependant of the deceased cannot claim appointment as a vested right, as a right independent of any contingency and which cannot be taken away without consent of the person concerned. The entitlement for appointment on compassionate grounds depends on various other circumstances such as eligibility and financial condition of the family etc., and the application has to be considered in accordance with the scheme. Since the scheme does not create any vested right, a candidate cannot claim that his case is to be considered under the scheme existing on the date when the cause of action has arisen, i.e. the date of death of the incumbent on the post. It was, thus, held that as the new scheme came into force within a short period from the date of receiving of the application, the candidate cannot claim consideration under the old scheme. The scheme as prevailing on the date of consideration of the application would apply and the application has to be considered strictly in accordance with the new scheme. 23. Whereas in Canara Bank (supra), considering the judgment in SBI vs Jashpal (supra), it was held that the claim of compassionate appointment which was materialized under the old scheme cannot be decided on the basis of the scheme that was promulgated much after the dispute in the said case. It was found that the application for compassionate appointment “dying in harness” scheme was moved when scheme for compassionate appointment was in force. The new scheme providing for ex gratia payment (by scrapping of scheme of dying-in-harness appointment) came much after the filing of the application. It was found that the application for compassionate appointment “dying in harness” scheme was moved when scheme for compassionate appointment was in force. The new scheme providing for ex gratia payment (by scrapping of scheme of dying-in-harness appointment) came much after the filing of the application. In the said fact and circumstances of that case, it was held that the cause of action to be considered for compassionate appointment arose when the old scheme was in force and the new scheme being an administrative order cannot be given retrospective effect so as to take away right of consideration accrued to the applicant under the old scheme. The claim was directed to be considered under the old scheme with the observations in relevant paragraph-'18' and Canara Bank and another (supra) as under:- “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.” 24. Having carefully gone through the above decisions, it is more than apparent that both the said judgments were rendered in the circumstance where the applications for compassionate appointment were moved within a reasonable time from the date of death of the incumbent on the post. 25. However, in the instant case the petitioner did not move application for compassionate appointment within a reasonable time and has not offered any explanation for moving application after one year from the date of cause of action which arose with the death of his father. 26. It is not a case where the application was moved under the old scheme but remained pending and new scheme came in. In fact, there was no occasion for the Bank to consider the claim of family of the deceased employee to grant financial assistance to overcome the crisis immediately on the death of the employee. The law laid down by the Apex Court in MGB Gramin bank (supra) has no application in the fact situation of the present case. The ratio in Canara Bank and another (supra) cannot be applied. The law laid down by the Apex Court in MGB Gramin bank (supra) has no application in the fact situation of the present case. The ratio in Canara Bank and another (supra) cannot be applied. The question of reference in State Bank of India (supra) does not arise for consideration in the instant case. 27. Moreover, the scheme of compassionate appointment implemented, w.e.f 15.3.2019 can not be given retrospective effect. The said scheme can be applied only in the following contingencies, i.e:- (i) where the incumbent on the post dies in harness after implementation of the scheme w.e.f 15.3.2019. (ii) the application seeking financial assistance (ex-gratia payment) under the old scheme was moved and remained pending for the inaction or non consideration on the part of the respondent bank. (iii) where the application was moved under the old scheme (for ex gratia payment) and within a short period from the date of receiving of the application, new scheme for compassionate appointment came into force. 28. Further, the time limit provided under Clause-8 of the current scheme for considering application within a period of five years has to be reckoned from the date of death of the employee in harness and cannot come to rescue of the petitioner who himself moved application after a lapse of one year from the date of accrual of the cause of action or death of the employee without any explanation for the delay. 29. In view of the above, the decision of the Bank in refusing to consider the claim for compassionate appointment made by the petitioner's mother, cannot be said to suffer from any infirmity. 30. The writ petition is found devoid of merit and hence, dismissed.