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2019 DIGILAW 2707 (ALL)

G. M. Personnel UCO Banks v. Dhiraj Kumar Dixit

2019-12-04

B.K.NARAYANA, ROHIT RANJAN AGARWAL

body2019
JUDGMENT : 1. Heard Sri Ravi Prakash Pandey, learned counsel for the appellant. None appears on behalf of the respondent. 2. This special appeal has been preferred by the General Manager (Personnel) of UCO Bank, Kolkata, and the Regional Manager, UCO Bank, Bhelpura, District Varanasi, against the judgment and order dated 31st July, 2002, passed by learned Single Judge of this Court in Civil Misc. Writ Petition No. 23899 of 2000. 3. The facts of this case as emerging from the perusal of the pleadings filed before the Writ Court are that the father of the petitioner-respondent Dhiraj Kumar Dixit was working on the post of Assistant Cashier in the UCO Bank, Chowk, Varanasi. He died in harness on 6.2.1997. The petitioner-respondent on 20.5.1997 claimed appointment on compassionate ground. His application remained pending. He filed writ petition No. 1765 of 2000, which was disposed of by this Court on 17.1.2000 directing the petitioner-respondent to make a fresh representation, which was to be decided by the General Manager (Personnel), UCO Bank, Calcutta. The petitioner-respondent prepared a fresh representation and sent it by registered post alongwith a copy of the order passed by this Court on 29.1.2000 and 1.2.2000. But since the representation was not decided he sent reminders on 3.3.2000 and 7.3.2000. The General Manager by his order dated 19.4.2000 rejected the representation of the petitioner-respondent on the ground that total income of the family of the deceased was more than 60% of the last drawn gross salary of the deceased, therefore, the petitioner-respondent was not eligible for appointment on compassionate ground in the bank, as per the scheme of bank. The petitioner-respondent had challenged before the Writ Court the Scheme for Recruitment of Dependants of Deceased Employee on Compassionate Ground (in brief Scheme), annexure-1 to the petition and the order dated 19.4.2000 passed by respondent No. 1, Annexure 5 to the writ petition. 4. Before the Writ Court, the petitioner-respondent had urged that the provident fund, gratuity, family pension, group insurance or insurance policy cannot be considered for determining the financial status or family income of the deceased's family nor it can furnish a ground for rejecting the claim for appointment on compassionate ground. It was also urged that the scheme framed by the Bank was ultra vires and arbitrary. 5. It was also urged that the scheme framed by the Bank was ultra vires and arbitrary. 5. The stand taken by the respondent-appellant Bank before the Writ Court was that the head office of the Bank had framed a scheme on 21.9.1999 for recruitment of dependents of the deceased employees on compassionate grounds and the norms for eligibility have been laid down in the scheme which provides that if the monthly income of the bereaved family was 60% or more of the gross salary, the deceased employee was drawing at the time of his death, then such cases would not be considered for compassionate appointment. The Bank took a further stand that monthly income of the family of the petitioner-respondent on being calculated in accordance with the formula provided in the scheme, was above 60% of the last drawn gross salary of the deceased employee. Hence, the petitioner-respondent was not entitled for compassionate appointment. It was also urged before the Writ Court that the Bank had framed a scheme in pursuance of the decision of the Apex Court In Umesh Kumar Nagpal v. State of Haryana and others, JT 1994 (3) SC 525, in which the Apex Court in paragraph 7 has laid down that rules or executive instructions have to be framed by the public authority for providing employment on compassionate ground. Reliance was also placed by the respondent-appellant Bank on the decision of the Apex Court in Life Insurance Corporation of India v. Mrs. Asha Ram Chandra Am bedkar and another, JT 1994 (2) SC 183. He further urged that the High Court while considering the appointment on compassionate ground cannot go behind the scheme framed by the Bank for giving appointment on compassionate ground and no mandamus can be issued directing to make appointment forbidden under the scheme framed by the Bank. The scheme neither suffered from any illegality nor the petitioner-respondent was entitled for appointment on compassionate grounds. 6. The learned Single Judge after considering the submissions advanced before him by learned counsel for the parties, allowed the writ petition by the order impugned in this special appeal. 7. Following paragraphs of the impugned judgment which are relevant for the purpose of deciding this special appeal is quoted hereinbelow : "Today most of the service whether Government or in public sector or even otherwise are pension-abe and there is a provision for family pension. 7. Following paragraphs of the impugned judgment which are relevant for the purpose of deciding this special appeal is quoted hereinbelow : "Today most of the service whether Government or in public sector or even otherwise are pension-abe and there is a provision for family pension. Every employee from peon in class-IV to head of department in class-I contributes to Provident Fund, is entitled to gratuity and is compulsorily insured. If these amounts which are payable to the family on death of the employee are clubbed together and a notional 11% interest is calculated on it to arrive at 60% of the gross salary drawn by the deceased then this would hardly be any dependant who could be entitled for compassionate appointment. Family pension is paid to the widow of the deceased. This is also a social security for the employee's widow. The calculation of 11% interest on the amount received by the family of the deceased and the Family Pension is not only against the letter and spirit of the Apex Court judgment but is contrary to basic philosophy of socio-economic justice. Further 11% interest was not paid even on Fixed Deposit Receipts in 1999. Today it is much less. The provision for calculating 11% interest is, thus, arbitrary. For these reasons this writ petition succeeds and is allowed. Clauses 7 and 8 of the Scheme for Recruitment of Dependents of Deceased Employee on Compassionate Ground annexure-1 to the writ petition are struck down as arbitrary and irrational. Consequently, the impugned order dated 19.4.2000 passed by respondent No. 1 annexure-5 to the writ petition is quashed. The respondents are directed to consider the representation of the petitioner afresh within six weeks and grant compassionate appointment in Class-III or IV according to his eligibility." 8. It has been contended by learned counsel for the respondent-appellant that it has been the consistent view of the Apex Court that while considering a claim for compassionate appointment, the income of the bereaved family from various sources including the gratuity, pension etc. It has been contended by learned counsel for the respondent-appellant that it has been the consistent view of the Apex Court that while considering a claim for compassionate appointment, the income of the bereaved family from various sources including the gratuity, pension etc. has to be taken into account and an appointment on compassionate ground can only be provided on the ground which can justify compassionate appointment is the penury condition of the deceased family and the learned Single Judge was not at all justified in striking down clauses 7 and 8 of the scheme providing guidelines for the recruitment of the dependant of the deceased family on compassionate ground framed by the Bank. In support of his aforesaid contentions, learned counsel for the respondent-appellant has placed reliance upon by judgment of the Apex Court rendered in the case of State of Himachal Pradesh and another v. Shashi Kumar, 2019 (1) ESC 77 (SC). 9. Having considered the submissions made by learned counsel for the respondent-appellant and very carefully perused the law reports cited by him, we find that there is force in the submissions made by him. The Apex Court in the case of State of Himachal Pradesh and another (supra) after considering the entire law on the subject of compassionate appointment, came to the conclusion that while considering the penury condition of the bereaved family, the income of the bereaved family from different sources including the family pension has to be taken into consideration. 10. The paragraphs of the aforesaid judgment which are relevant for our purpose are being reproduced hereinbelow: "In view of the clear terms of the Policy, we are of the view that the High Court was in error in issuing a mandamus to the Government to disregard its Policy. Such direction could not have been issued by the High Court. The High Court has drawn sustenance in issuing mandamus in the above terms on a decision of this Court in Govind Prakash Verma (supra). That was a case of compassionate appointment where in the course of the proceedings before the High Court, a learned Single Judge had directed the Life Insurance Corporation, which was the employer of the deceased employee, to make an enquiry and submit a report on whether the members of the family engaged in gainful employment were also supporting the family of the deceased employee. This Court, in an appeal against the judgment of the High Court rejecting the petition for compassionate appointment, observed that the officer who had enquired into the matter in pursuance of the order of the learned Single Judge completely omitted to furnish any report on the points which were required by the High Court to be investigated. The High Court rejected the petition on the ground that the family was in receipt of family pension and other amounts towards terminal benefits. Reversing the view of the High Court, a two-Judge Bench of this Court held thus: "6. In our view, it was wholly irrelevant for the departmental authorities and the learned Single Judge to take into consideration the amount which was being paid as family pension to the widow of the deceased (which amount, according to the appellant, has now been reduced to half) and other amounts paid on account of terminal benefits under the Rules..." The decision in Govind Prakash Verma (supra) has been considered subsequently in several decisions. But, before we advert to those decisions, it is necessary to note that the nature of compassionate appointment had been considered by this Court in Umesh Kumar Nagpal v. State of Haryana, (1994) 4 SCC 138 . The principles which have been laid down in Umesh Kumar Nagpal (supra) have been subsequently followed in a consistent line of precedents in this Court. These principles are encapsulated in the following extract: "2. ...As a rule, appointments in the public services should be made strictly on the basis of open invitation of applications and merit. No other mode of appointment nor any other consideration is permissible. Neither the Governments nor the public authorities are at liberty to follow any other procedure or relax the qualifications laid down by the rules for the post. However, to this general rule which is to be followed strictly in every case, there are some exceptions carved out in the interests of justice and to meet certain contingencies. One such exception is in favour of the dependants of an employee dying in harness and leaving his family in penury and without any means of livelihood. However, to this general rule which is to be followed strictly in every case, there are some exceptions carved out in the interests of justice and to meet certain contingencies. One such exception is in favour of the dependants of an employee dying in harness and leaving his family in penury and without any means of livelihood. In such cases, out of pure humanitarian consideration taking into consideration the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made in the rules to provide gainful employment to one of the dependants of the deceased who may be eligible for such employment. 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. 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 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." Specifically in the context of considering the financial circumstances of the family of the deceased employee, several judgments of this Court have elaborated on the principles to be followed. The decision in General Manager (D & PB) v. Kunti Tiwary, (2004) 7 SCC 271 , involved an interpretation of an office memorandum dated 7 August 1996 circulated to all banks in the light of the decision in Umesh Kumar Nagpal (supra). The Indian Banks Association adopted the directions of this Court in the Scheme which was proposed for the appointment of heirs of deceased employees. The Scheme contemplated that in order to determine the financial condition of the family, the following amounts would have to be taken into account: "7...(a) Family pension. (b) Gratuity amount received. (c) Employee's/employer's contribution to provident fund. (d) Any compensation paid by the Bank or its Welfare Fund. (e) Proceeds of LIC policy and other investments of the deceased employee. (f) Income of family from other sources. (g) Employment of other family members. (h) Size of the family and liabilities, if any, etc." Eventually, this recommendation was accepted in the Scheme. In the light of these recommendations and the Scheme, this Court observed that where the family of a deceased employee was not left without means of livelihood, the claim for compassionate appointment could not be sustained. It may be noted that in that case it was on a review of the overall financial position of the family, including amounts received towards terminal benefits that the decision was taken. The decision of this Court in Punjab National Bank v. Ashwani Kumar Taneja, (2004) 7 SCC 265 , followed the same principle. While reiterating the view which was taken in Kunti Tiwary (supra), this Court held that the Scheme specified the amounts which were required to be taken into consideration. The decision of this Court in Punjab National Bank v. Ashwani Kumar Taneja, (2004) 7 SCC 265 , followed the same principle. While reiterating the view which was taken in Kunti Tiwary (supra), this Court held that the Scheme specified the amounts which were required to be taken into consideration. The decision in State Bank of India v. Somvir Singh, (2007) 4 SCC 778 , has noticed the scheme for appointment of dependants of deceased employees on compassionate grounds framed by the State Bank of India. The Court expressly held that the authorities were not in error in taking account of the terminal benefits, investments and the monthly family income including the family pension paid by the Bank. The view of this Court finds expression in the following extract: "12. The competent authority while considering the application had taken into consideration each one of those factors and accordingly found that the dependants of the employee who died in harness are not in penury and without any means of livelihood. The authority did not commit any error in taking the terminal benefits and the investments and the monthly family income including the family pension paid by the Bank into consideration for the purposes of deciding as to whether the family of late Zile Singh had been left in penury or without any means of livelihood. The scheme framed by the appellant Bank in fact mandates the authority to take those factors into consideration. The authority also did not commit any error in taking into consideration the income of the family from other sources viz. the agricultural land." (emphasis supplied) In the view of this Court, the only issue to be considered was whether the claim for compassionate appointment had been considered in accordance with the Scheme. The income of the family from all sources was required to be taken into consideration according to the Scheme. This having been ignored by the High Court, the appeal filed by the Bank was allowed. The judgment of a Bench of two-Judges in Mumtaz Yunus Mulani v. State of Maharashtra, (2008) 11 SCC 384 , has adopted the principle that appointment on compassionate grounds is not a source of recruitment, but a means to enable the family of the deceased to get over a sudden financial crisis. The judgment of a Bench of two-Judges in Mumtaz Yunus Mulani v. State of Maharashtra, (2008) 11 SCC 384 , has adopted the principle that appointment on compassionate grounds is not a source of recruitment, but a means to enable the family of the deceased to get over a sudden financial crisis. The financial position of the family would need to be evaluated on the basis of the provisions contained in the Scheme. The decision in Govind Prakash Verma (supra) has been duly considered, but the Court observed that it did not appear that the earlier binding precedents of this Court have been taken note of in that case. In Union of India v. Shashank Goswami, (2012) 11 SCC 307 , this Court considered a circular issued by the Office of the Comptrailer and Auditor General of India in terms of which the total income of the family from all sources, including terminal benefits received, was required to be taken into account. Income limits were specified in the circular for Group 'B', Group 'C' and Group 'D' posts. Taking note of the fact that a family pension has been authorized to the widow of the deceased employee, this Court held that the case of the dependant did not fall within the income limits meant for Group 'C' posts. The same principle has been reiterated in another decision of a Bench of two-Judges of this Court in State Bank of India v. Surya Narain Tripathi, (2014) 15 SCC 739 . While adverting to a submission of learned counsel based on the decision in Govind Prakash Verma (supra), this Court noted thus: "8. He relied upon the judgment of this Court in Govind Prakash Verma v. LIC [Govind Prakash Verma v. LIC, (2005) 10 SCC 289 : 2005 SCC (L&S) 590] where a view has been taken that the compassionate appointment cannot be refused on the ground that another member of the family had received appropriate employment and the service benefits were adequate. We may humbly state that this view runs counter to the view which was taken ear-Her in Umesh Kumar Nagpal [Umesh Kumar Nagpal v. State of Haryana, (1994) 4 SCC 138 : 1994 SCC (L&S) 930 : (1994) 27 ATC 537] which was not cited before the Court in Govind Prakash [Govind Prakash Verma v. LIC, (2005) 10 SCC 289 : 2005 SCC (L&S) 590]. The subsequent two judgments which were referred above also take the same view as in Umesh Kumar Nagpal [Umesh Kumar Nagpal v. State of Haryana, (1994) 4 SCC 138 : 1994 SCC (L&S) 930 : (1994) 27 ATC 537]. Mr. Vikas Singh has drawn our attention to the judgment in SBI v. Somvir Singh [SBI v. Somvir Singh, (2007) 4 SCC 778 : (2007) 2 SCC (L&S) 92] where the 1998 Scheme has been considered. 9. In all the matters of compassionate appointment it must be noticed that it is basically a way out for the family which is financially in difficulties on account of the death of the bread earner. It is not an avenue for a regular employment as such. This is in fact an exception to the provisions under Article 16 of the Constitution. That being so, if an employer points out that the financial arrangement made for the family subsequent to the death of the employee is adequate, the members of the family cannot insist that one of them ought to be provided a comparable appointment. This being the principle which has been adopted all throughout, it is difficult for us to accept the submission made on behalf of the respondent." Now, it is in this background that it would be necessary to advert to the decision in Canara Bank (supra). A Scheme for compassionate appointment of 8 May 1993 was prevalent in Canara Bank when the employee died on duty in October 1998. Faced with the rejection of an application for compassionate appointment, the High Court was moved in a Writ Petition in which a learned Single Judge issued a direction for reconsideration of the claim for appointment. During the pendency of the appeal before the Division Bench, the Scheme for compassionate appointment was replaced by a new Scheme providing for ex gratia in lieu of appointment. The main issue which fell for consideration before this Court was whether the subsequent Scheme which was formulated in 2005 providing for ex gratia payment would govern or whether the application would have to be disposed of on the basis of the earlier Scheme of 1993. It may be noted that the application for compassionate appointment in that case had been rejected on the ground that the family of the respondent was not in indigent circumstances, as required by the Scheme for compassionate appointment of 1993. It may be noted that the application for compassionate appointment in that case had been rejected on the ground that the family of the respondent was not in indigent circumstances, as required by the Scheme for compassionate appointment of 1993. Dealing with the applicability of the subsequent Scheme, a Bench of two-Judges of this Court held, following the earlier decision in State Bank of India v. Jaspal Kaur, (2007) 9 SCC 571 , that the cause of action to be considered for compassionate appointment arose when the earlier Scheme was in force. Hence, the claim could not be decided on the basis of the subsequent Scheme which provided only for the payment of ex gratia. Moreover, as a matter of fact, the subsequent scheme was superseded in 2014 by reviving the Scheme for the provision of compassionate appointment. Hence, the issue which has been dealt with in Canara Bank (supra) is whether the application for grant of compassionate appointment could have been rejected on the basis of a scheme which had come into force after the date of submission of the application. That, as this Court observed, was the main question which fell for consideration. The Bench of two-Judges, however, also noted that it was urged on behalf of the appellant - Bank that the family of the respondent was in receipt of family pension. This, the Court held, was of no consequence in considering the application for compassionate appointment. Learned senior counsel appearing on behalf of the appellants has sought to distinguish the above observations, in the judgment in Canara Bank (supra), by submitting that it is not the case of the State of Himachal Pradesh that mere receipt of family pension would disable an applicant from submitting an application for compassionate appointment or preclude consideration of the claim. On the contrary, the submission which is urged is that the Scheme requires consideration of all relevant sources of income and hence, receipt of family pension would be one of the criteria which would be taken into consideration in determining as to whether the family of the deceased employee is in indigent circumstances. We find merit in this submission, for the simple reason, that it is in accord with the express terms of the Scheme of 18 January 1990, as modified by the State. We find merit in this submission, for the simple reason, that it is in accord with the express terms of the Scheme of 18 January 1990, as modified by the State. The Scheme contemplates that payments which have been received on account of welfare measures provided by the State including family pension are to be taken into account. Plainly, the terms of the Scheme must be implemented. For these reasons, we have come to the conclusion that the High Court was not justified, based on the decision in Govind Prakash Verma (supra) in issuing a direction to the State to act in a manner contrary to the express terms of the Scheme which require that the family pension received by the dependants of the deceased employee be taken into account. That leads the Court to the next aspect of the matter relating to the fixation of an income slab. In our view, the fixation of an income slab is, in fact, a measure which dilutes the element of arbitrariness. While, undoubtedly, the facts of each individual case have to be borne in mind in taking a decision, the fixation of an income slab subserves the purpose of bringing objectivity and uniformity in the process of decision making. The High Court was of the view that it was not open to the Finance Department to amend the Scheme. The circulars which are issued by the Finance Department cannot be construed to be an amendment of the policy. They are really clarificatory of the intent and purpose of the Scheme. The circulars are explanatory, since they are intended to guide the decision maker on the concept of indigency which is incorporated in the Scheme. In fact, as we have noted earlier, in the decision of this Court in Shashank Goswami (supra), the Court was specifically dealing with a circular of the Comptroller and Auditor General of India which had imposed income limits respectively for Group 'B', 'C' and 'D' posts for the purpose of guiding the decision in the case of compassionate appointment. The fixation of income limits was not construed to be and is not an arbitrary exercise of power. However, what we find from the record of this case is that the income limit was fixed (as the High Court observed) on 29 September 2008 by the letter of the Finance Department. The income limit of Rs. The fixation of income limits was not construed to be and is not an arbitrary exercise of power. However, what we find from the record of this case is that the income limit was fixed (as the High Court observed) on 29 September 2008 by the letter of the Finance Department. The income limit of Rs. 1,00,000/- for a family of four persons has since been revised to Rs. 1,50,000/- on 20 April 2011. Mr. P.S. Patwalia has, on instructions, stated before this Court that this ceiling has been reiterated on 27 July 2017. What should be the appropriate income criterion is undoubtedly a matter of policy for the State Government to determine. However, we would impress upon the State Government the need to periodically revise the income limits preferably at intervals of three years. Inflation and the increase in the cost of living have an important bearing on financial exigencies faced by families of serving as well as deceased employees. In fixing the income criteria for considering cases of compassionate appointment, it would be appropriate if the State revisits the income limit at periodic intervals, as we have indicated above. We clarify that it would be open to the State to revise the income limits at a frequency of less than three years, if the State is so advised." 11. Thus, in view of the guidelines laid down by the Apex Court in the case of State of Himachal Pradesh and another v. Shashi Kumar (supra) and the pronouncement made in Clauses 7 and 8 of the scheme of recruitment of dependants of deceased employees on compassionate ground which provide that while considering the claim for compassionate appointment under the scheme, the income of the bereaved family from sources specified in the scheme is required to be taken into consideration, are neither unreasonable nor suffer from the vice of arbitrariness. Thus, we find that the view taken by learned Single Judge is wholly untenable and cannot be sustained. In our opinion, the learned Single Judge was not at all justified in striking down Clauses 7 and 8 of the scheme. 12. We accordingly allow the appeal and set aside the impugned order passed by learned Single Judge to the extent it seeks to strike down Clauses 7 and 8 of the scheme. In our opinion, the learned Single Judge was not at all justified in striking down Clauses 7 and 8 of the scheme. 12. We accordingly allow the appeal and set aside the impugned order passed by learned Single Judge to the extent it seeks to strike down Clauses 7 and 8 of the scheme. However, we leave it open to appellant to consider and examine the claim of the petitioner-respondent on compassionate ground strictly in accordance with the provisions of the scheme.