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2019 DIGILAW 773 (ALL)

Nanda Tambe v. Union Bank of India

2019-03-28

SUDHIR AGARWAL

body2019
JUDGMENT : Sudhir Agarwal, J. 1. Heard Sri Abhishek Dwivedi, Advocate holding brief of Sri Vineet Kumar Singh, learned Counsel for petitioner and perused the material available on record. 2. Petitioner claimed compassionate appointment but the same has been negated by Bank on the ground that she has received terminal benefits of Rs. 2,38,975/- and also getting family pension of Rs. 4,969/- per month, therefore, petitioner is not in a penurious condition so as to entitle her compassionate appointment. 3. It is contended on behalf of petitioner that aforesaid dues could not have been taken into consideration for the purpose of denial of compassionate appointment. 4. Petitioner's husband, Gajanand Tambe was permanent employee in Union Bank of India working on the post of Cashier and died in harness on 17.8.2000 on account of Cancer. Thereafter, petitioner applied for compassionate appointment vide Application dated Nil, a copy whereof has been filed as Annexure-5 to the writ petition which shows that deceased husband left his old mother, aged about 75 years, petitioner, the widow, one son aged about 15 years and daughter aged about 10 years. Both children were undergoing studies at the time of death of petitioner's husband. Claim of petitioner for compassionate appointment has been negated by Competent Authority as communicated to her by Senior Manager, Regional Office, Lucknow vide letter dated 7.3.2002 (Annexure-7 to the writ petition) which was further communicated by Manager Karmik vide letter dated 21.3.2002. Petitioner made another application on 4.5.2002 stating that she and his family is suffering great hardship having no source of income and, therefore, should be given compassionate appointment. Reminder was also given on 14.8.2002. In the meantime, family pension was sanctioned to petitioner and a sum of Rs. 1,17,484.26/- was paid towards outstanding dues of Provident Fund. Petitioner again sent a letter to Chairman and Managing Director of Bank requesting for compassionate appointment on 5.5.2004 but said request has been negated vide letter dated 15.6.2004 stating that financial condition of petitioner and her family is so indigent after the death of her husband so that compassionate appointment should be given to petitioner. 5. This writ petition has been filed challenging orders dated 15.6.2004, 7.3.2002 as communicated vide letter dated 21.3.2002 and a writ of mandamus has also been sought directing respondents to give compassionate appointment to petitioner. 6. 5. This writ petition has been filed challenging orders dated 15.6.2004, 7.3.2002 as communicated vide letter dated 21.3.2002 and a writ of mandamus has also been sought directing respondents to give compassionate appointment to petitioner. 6. Respondents-Bank has filed counter-affidavit appending therewith a "Scheme for Appointment of Dependent of Deceased Employees on Compassionate Grounds" as circulated vide Circular dated 19.2.1997 and it is said thereunder that compassionate appointment is permissible to dependents of deceased employee dying in harness when family is in penurious condition and without any means of livelihood. Operative part of said Scheme reads as under: "Whereas it is deemed expedient and necessary to provide for appointment of dependents of deceased employee dying in harness and leaving his/her family in penury and without any means of livelihood the Bank hereby frames the following scheme providing for and regulating the method of appointment in the clerical/subordinate cadre on compassionate grounds of widow, widowers, and children/dependents of its employees who the while in service." 7. In order to determine penurious condition etc. in para-4 of said Scheme, the aspects which are to be considered, are detailed. Para-4 of Scheme reads as under: "Sanction for appointment Appointments under the Scheme will be made by the Competent Authority. The object of granting compassionate appointment to the dependent of the deceased employee is to enable the family to tide over the sudden crisis. Compassionate appointment will be offered by the Bank only in the case where the Bank is satisfied that the financial condition of family is such that but for the provision of employment, the family will not be able to meet the crisis. While considering such appointment the Competent Authority will take into account the following to determine the financial condition of the family: (a) Family Pension (b) Gratuity (c) Employee's/Employer's contribution to the 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 for family from other sources (g) Employment of other family members (h) Size of the family and liabilities, if any, etc." 8. It is said that claim of petitioner was considered in the light of said Scheme and it has been found that petitioner's case do not satisfy the requirement justifying compassionate appointment. 9. It is said that claim of petitioner was considered in the light of said Scheme and it has been found that petitioner's case do not satisfy the requirement justifying compassionate appointment. 9. In the above circumstances, the question up for consideration is, "whether denial of compassionate appointment to petitioner is justified or not". 10. I find that in the context of similar schemes of various banks, the matters have been examined time and again by Supreme Court and this Court. It would be appropriate to have a bird's eye view of those authorities. 11. General Manager (D and PB) and others v. Kunti Tiwary and another, (2004) 7 SCC 271 was also a case arising in the matter of State Bank of India. The employee Kunti Tiwary died in-harness on 16.1.1998. Application for compassionate appointment was made when deceased's son was minor. He attained majority on 25.2.2000. Thereafter he applied for compassionate appointment. Financial condition of family was examined by Bank and it was found that deceased employee's family was paid Provident Fund of Rs. 3,33,410/-, Gratuity of Rs. 1,73,987/- and Leave Encashment of Rs. 1,01,344/-. The deceased employee had an investment of Rs. 66,000/- in share of State Bank of India, etc. Family was paid a pension of Rs. 5,583/- per month. The application, therefore, was rejected on the ground that possessed assets and monthly income was such as not to hold family in penury condition. The family also consisted of a widow, two sons and a daughter. Rejection of application was challenged in Writ Court and a learned Single Judge dismissed writ petition. In intra Court appeal judgment of learned Single Judge was set aside and direction was issued to Bank to give compassionate appointment. This order came to be challenged in Supreme Court, who allowed appeal and restored judgment of learned Single Judge. 12. In Punjab National Bank and others v. Ashwani Kumar Taneja, 2004 (7) SCC 265 , father of Ashwani Kumar Taneja, a Class IV employee, died in harness on 3.12.1999 leaving behind his mother, widow, two sons and one daughter. Request for compassionate appointment was declined by Bank, where against writ petition was allowed by learned Single Judge of Rajasthan High Court and Letters Patent Appeal was dismissed by Division Bench. The High Court held that for considering application for compassionate appointment, amount paid towards gratuity, provident fund etc. cannot be looked into. Request for compassionate appointment was declined by Bank, where against writ petition was allowed by learned Single Judge of Rajasthan High Court and Letters Patent Appeal was dismissed by Division Bench. The High Court held that for considering application for compassionate appointment, amount paid towards gratuity, provident fund etc. cannot be looked into. The matter went in appeal to Supreme Court and it held that the said amount can be taken into consideration and judgment of High Court was reversed holding that benefit paid after death can be considered for judging financial hardship. 13. In State Bank of India v. Jaspal Kaur, (2007) 9 SCC 571 , again a matter relating to State Bank of India, one Sukhbir Inder Singh, husband of Jaspal Kaur died in harness on 1.8.1999 while working as Record Assistant. An application for compassionate appointment of widow was rejected by Bank. In writ petition filed by Jaspal Kaur, High Court directed Bank to reconsider the application, which was again declined. The matter again came to High Court, which took a view that' retrial benefits of Rs. 4,57,607/- paid to the family as terminal benefits cannot be said to be a sufficient amount to bring away family from financial hardship. Supreme Court found that family of deceased consisted of a widow, two daughters and a son. Terminal benefits were paid as Rs. 4,57,607/- and monthly pension was Rs. 2,055/- and held that in the above facts and circumstances denial of compassionate appointment on the ground that family was not in penurious condition was justified. 14. In State Bank of India v. Ajay Kumar (Special Appeal No. 14 of 2007), decided on 21.11.2017 a Division Bench of this Court found that terminal benefits of Rs. 3.79 lakhs, Rs. 1 lakh from LIC policy and gross monthly income of Rs. 4,000/- justify denial of compassionate appointment on the ground that family is not in penurious condition. 15. Similarly, in Punjab National Bank v. Deepak Pandey (Special Appeal No. 867 of 2006), decided on 21.11.2013, this Court found that family pension of Rs. 4,807/- per month after death of deceased employee justify denial of compassionate appointment on the ground that family is not in penurious condition. 16. In the present case, petitioner's husband died in August, 2000, leaving behind four dependents i.e., old mother, widow i.e., petitioner and two children (one son and one daughter). 4,807/- per month after death of deceased employee justify denial of compassionate appointment on the ground that family is not in penurious condition. 16. In the present case, petitioner's husband died in August, 2000, leaving behind four dependents i.e., old mother, widow i.e., petitioner and two children (one son and one daughter). The amount of family pension payable to petitioner is Rs. 4,269/- per month and terminal benefit paid to Rs. 2,38,975/-. The above amount is such which has been considered in the cases referred to above and denial of compassionate appointment has been held valid. 17. This Court is also satisfied that in order to consider penurious condition, individual advantage, disadvantage, income and liability of family of deceased have to be taken into account and different conditions of different families will not be guiding factor. 18. Competent Authority has to examine the financial condition of deceased employee and it is only if it is satisfied that without providing employment, family will not be able to meet the crisis that a job is to be offered to an eligible member of family. This is further subject to the condition that such person possess required eligibility and qualifications, etc. 19. Even otherwise, petitioner's husband died in August, 2000 and we are today in 2019 i.e., almost 19 years have passed. Petitioner herself was 40 years of age in 2000 when application for compassionate appointment was filed before Competent Authority and now around 59 years of age. Son and daughter also having attained majority and in 2019 must be around 34 and 29 years of age respectively, hence, son must have been employed and daughter may have been married. 20. Considering the objective of giving compassionate appointment, in my view, at this stage it will not be appropriate on the part of this Court to exercise jurisdiction under Article 226 of Constitution with respect to relief of compassionate appointment to petitioner, inasmuch as, if the family has already lived for 20 years, at this stage any direction for compassionate appointment will defeat the very objective of scheme of compassionate appointment, which is meant for providing minimum succor to deceased family for its survival and not providing employment by way of reservation on account of succession. 21. 21. An appointment on compassionate basis claimed after a long time has seriously been deprecated by Court in Union of India v. Bhagwan, 1995 (6) SCC 436 Haryana State Electricity Board v. Naresh Tanwar, 1996 (72) FLR 819 (SC). In the later case, Court said: "compassionate appointment cannot be granted after a long lapse of reasonable period and the very purpose of compassionate appointment, as an exception to the general rule of open recruitment, is intended to meet the immediate financial problem being suffered by the members of the family of the deceased employee......the very object of appointment of dependent of deceased-employee who died in harness is to relieve immediate hardship and distress caused to the family by sudden demise of the earning member of the family and such consideration cannot be kept binding for years." 22. In Managing Director, MMTC Ltd., New Delhi and another v. Pramoda-Dei alias Nayak 1997 (11) SCC 390 , Court said: "As pointed out by this Court, the object of compassionate appointment is to enable the penurious family of the deceased employee to tied over the sudden financial crises and not to provide employment and that mere death of an employee does not entitle his family to compassionate appointment." 23. In Director of Education (Secondary) and another v. Pushpendra Kumar and others, AIR 1998 SC 2230 , Court said: "The object underlying a provision for grant of compassionate employment is to enable the family of the deceased employee to tide over the sudden crisis resulting due to death of the bread earner which has left the family in penury and without any means of livelihood." 24. In State of U.P. and others v. Paras Nath, AIR 1998 SC 2612 , Court said: "The purpose of providing employment to a dependent of a Government servant dying in harness in preference to anybody else, is to mitigate the hardship caused to the family of the employee on account of his unexpected death while still in service. To alleviate the distress of the family, such appointments are permissible on compassionate grounds provided there are Rules providing for such appointment. The purpose is to provide immediate financial assistance to the family of a deceased Government servant. None of these considerations can operate when the application is made after a long period of time such as seventeen years in the present case." 25. The purpose is to provide immediate financial assistance to the family of a deceased Government servant. None of these considerations can operate when the application is made after a long period of time such as seventeen years in the present case." 25. In S. Mohan v. Government of Tamil Nadu and another, 1999 (I) LLJ 539, Court said: "The object being to enable the family to get over the financial crisis which it faces at the time of the death of the sole breadwinner, the compassionate employment cannot be claimed and offered whatever the lapse of time and after the crisis is over." 26. In Sanjay Kumar v. The State of Bihar and others, AIR 2000 SC 2782 it was held: "compassionate appointment is intended to enable the family of the deceased employee to tide over sudden crisis resulting due to death of the bread earner who had left the family in penury and without any means of livelihood" 27. In Haryana State Electricity Board v. Krishna Devi, JT 2002 (3) SC 485 : 2002 (10) SCC 246, Court said: "As the application for employment of her son on compassionate ground was made by the respondent after eight years of death of her husband, we are of the opinion that it was not to meet the immediate financial need of the family...." 28. In Punjab National Bank and others v. Ashwini Kumar Taneja, 2004 (102) FLR 1023 (SC), Court said: "It is to be seen that the appointment on compassionate ground is not a source of recruitment but merely an exception to the requirement regarding appointments being made on open invitation of application on merits. Basic intention is that on the death of the employee concerned his family is not deprived of the means of livelihood. The object is to enable the family to get over sudden financial crisis." 29. In National Hydroelectric Power Corporation and another v. Nanak Chand and another, 2004 (103) FLR 707 (SC)., Court said: "It is to be seen that the appointment on compassionate ground is not a source of recruitment but merely an exception to the requirement regarding appointments being made on open invitation of application on merits. Basic intention is that on the death of the employee concerned his family is not deprived of the means of livelihood. The object is to enable the family to get over sudden financial crises." 30. Basic intention is that on the death of the employee concerned his family is not deprived of the means of livelihood. The object is to enable the family to get over sudden financial crises." 30. In State of Jammu and Kashmir v. Sajad Ahmed, 2006 (110) FLR 883 (SC), Court said: "Normally, an employment in Government or other public sectors should be open to all eligible candidates who can come forward to apply and compete with each other. It is in consonance with Article 14 of the Constitution. On the basis of competitive merits, an appointment should be made to public office. This general rule should not be departed except where compelling circumstances demand, such as, death of sole bread earner and likelihood of the family suffering because of the set back. Once it is proved that in spite of death of bread earner, the family survived and substantial period is over, there is no necessity to say 'goodbye' to normal rule of appointment and to show favour to one at the cost of interests of several others ignoring the mandate of Article 14 of the Constitution." (Emphasis added) 31. In I.G. (Karmik) and others v. Prahalad Mani Tripathi, 2007 (114) FLR 9 (SC) : 2007 (6) SCC 162 , Court said: "Public employment is considered to be a wealth. It in terms of the constitutional scheme cannot be given on descent. When such an exception has been carved out by this Court, the same must be strictly complied with. Appointment on compassionate ground is given only for meeting the immediate hardship which is faced by the family by reason of the death of the bread earner. When an appointment is made on compassionate ground, it should be kept confined only to the purpose it seeks to achieve, the idea being not to provide for endless compassion." 32. In Mumtaz Yunus Mulani v. State of Maharashtra and others, 2008 (117) FLR 565 (SC) : 2008 (11) SCC 384 , Court held that now a well-settled principle of law is that appointment on compassionate ground is not a source of recruitment. The reason for making such a benevolent scheme by the State or public sector undertakings is to see that the dependants of the deceased are not deprived of the means of livelihood. It only enables the family of the deceased to get over sudden financial crises. 33. The reason for making such a benevolent scheme by the State or public sector undertakings is to see that the dependants of the deceased are not deprived of the means of livelihood. It only enables the family of the deceased to get over sudden financial crises. 33. Following several earlier authorities, in M/s. Eastern Coalfields Ltd. v. Ami Badyakar and others, 2009 (121) FLR 996 (SC) : (2009) 13 SCC 122 : JT 2009 (6) SC 624, the Court said: "The principles indicated above would give a clear indication that the compassionate appointment is not a vested right which can be exercised at any time in future. The compassionate employment cannot be claimed and offered after a lapse of time and after the crisis is over." 34. In Santosh Kumar Dubey v. State of U.P. and others, 2009 (122) FLR 587 (SC) : 2009 (6) SCC 481 , Court said: "The very concept of giving a compassionate appointment is to tide over the financial difficulties that is faced by the family of the deceased due to the death of the earning member of the family. There is immediate loss of earning for which the family suffers financial hardship. The benefit is given so that the family can tide over such financial constraints. The request for appointment on compassionate grounds should be reasonable and proximate to the time of the death of the bread earner of the family, inasmuch as the very purpose of giving such benefit is to make financial help available to the family to overcome sudden economic crisis occurring in the family of the deceased who has died in harness. But this, however, cannot be another source of recruitment. This also cannot be treated as a bonanza and also as a right to get an appointment in Government service." 35. The Court considered that father of appellant Santosh Kumar Dubey (supra) became untraceable in 1981 and for about 18 years the family could survive and successfully faced and overcame the financial difficulties. In these circumstances it further held: "That being the position, in our considered opinion, this is not a fit case for exercise of our jurisdiction. This is also not a case where any direction could be issued for giving the appellant a compassionate appointment as the prevalent rules governing the subject do not permit us for issuing any such directions." 36. This is also not a case where any direction could be issued for giving the appellant a compassionate appointment as the prevalent rules governing the subject do not permit us for issuing any such directions." 36. The importance of penury and indigence of family of deceased employee and need to provide immediate assistance for compassionate appointment has been considered in Union of India (UOI) and another v. B. Kishore, 2011 (129) FLR 944 (SC) : 2011 (4) SCALE 308. This is relevant to make the provisions for compassionate appointment valid and constitutional else the same would be violative of Articles 14 and 16 of the Constitution of India. Court said: "If the element of indigence and the need to provide immediate assistance for relief from financial deprivation is taken out from the scheme of compassionate appointments, it would turn out to be reservation in favour of the dependents of an employee who died while in service which would be directly in conflict with the ideal of equality guaranteed under Articles 14 and 16 of the Constitution." 37. It is thus clear that rule of compassionate appointment has an object to give relief against destitution. It is not a provision to provide alternate employment or an appointment commensurate with the post held by the deceased employee. It is not by way of giving similarly placed life to the dependents of the deceased. While considering the provision pertaining to relaxation under Rules, 1974 the very object of compassionate appointment cannot be ignored. This is what has been reiterated by a Division Bench of this Court in Smt. Madhulika Pathak v. State of U.P. and others, 2011 (3) ADJ 91 . 38. In Bhawani Prasad Sonkar v. Union of India and others, (2011) 4 SCC 209 , Court said that compassionate employment is given solely on humanitarian grounds with the sole object to provide immediate relief to the employee's family to tide over the sudden financial crisis and cannot be claimed as a matter of right. Appointment based solely on descent is inimical to our Constitutional scheme, and ordinarily public employment must be strictly on the basis of open invitation of applications and comparative merit, in consonance with Articles 14 and 16 of Constitution of India. No other mode of appointment is permissible. Appointment based solely on descent is inimical to our Constitutional scheme, and ordinarily public employment must be strictly on the basis of open invitation of applications and comparative merit, in consonance with Articles 14 and 16 of Constitution of India. No other mode of appointment is permissible. Nevertheless, concept of compassionate appointment has been recognized as an exception to the general rule, carved out in the interest of justice, in certain exigencies, by way of a policy of an employer, which partakes the character of the service rules. That being so, it needs little emphasis that the scheme or the policy, as the case may be, is binding both on the employer and the employee. Being an exception, scheme has to be strictly construed and confined only to the purpose it seeks to achieve. 39. In MGB Gramin Bank v. Chakrawarti Singh, 2013 (139) FLR 469 (SC) : (2014) 13 SCC 583 , Court has said that compassionate appointment cannot be granted as of right and application for compassionate appointment need be decided as expeditiously as possible. Compassionate appointment is not a vested right. Courts should not stretch the scheme for compassionate appointment by liberal interpretation on humanitarian grounds beyond permissible limits so as to allow compassionate appointment after a long time from the date of death. Either such appointments are made immediately or within a reasonable time of death and if appointment is not claimed for long time or made, it would be travesty of justice to compassionate appointment after a long time. 40. This has been followed in Canara Bank and others v. M. Mahesh Kumar and others, 2015 (146) FLR 401 (SC) : (2015) 7 SCC 412 . Court stressed upon aforesaid recent authorities that every appointment to public office must strictly adhere to the mandatory requirement of Articles 14 and 16 of Constitution of India. Compassionate appointment is an exception so as to provide employment to remove financial constraints suffered by bereft family of a Government servant who die in harness and family has lost its bread earner. However, it was held that mere death of a Government employee in harness does not entitle the family to claim compassionate appointment. 41. In the present case, petitioner has received terminal benefits of Rs. 2,38,975/- and a family pension of Rs. 4969/- was payable. However, it was held that mere death of a Government employee in harness does not entitle the family to claim compassionate appointment. 41. In the present case, petitioner has received terminal benefits of Rs. 2,38,975/- and a family pension of Rs. 4969/- was payable. The facts of this case are, therefore, similar as held in State Bank of India v. Jaspal Kaur (supra) and Punjab National Bank v. Deepak Pandey (supra). 42. In State Bank of India v. Jaspal Kaur (supra), terminal benefits were Rs. 4.5 lacs and monthly pension was Rs. 2,055/- but still Court upheld denial of compassionate appointment on the ground that family was not in penurious condition. 43. Looking to the entire aspects of the matter, I do not find that respondents-Bank has committed any error in denying of compassionate appointment to petitioner. Moreover, 19 years have already passed since the date of death of petitioner's husband. Son and daughter are of majority age and must have become independent, therefore, also there is no justification to grant any indulgence at this stage in 2019. 44. Writ petition lacks merit and is accordingly dismissed. 45. Interim order, if any, stands vacated.