JUDGMENT : 1. While hearing Writ Petition No. 3907 of 2021, a Division Bench of this Court (Bench at Nagpur) passed the following order dated April 7, 2022: “The petitioner is the widow of one Shri Raju Khapekar who was serving as a Clerk at Bank of Baroda, Manewada Branch, Nagpur. He expired in harness on 22-8-2019. The petitioner sought appointment on compassionate grounds by moving an application dated 17-2-2020. The petitioner was informed on 5-12-2020 that under the ‘Scheme for Compassionate Appointment/Payment of Ex-gratia Financial Relief to dependents of deceased employees on Compassionate Ground’ dated 18-2-2016 the financial condition of the petitioner’s family was not found to be indigent. While arriving at that conclusion, various amounts received by the family towards provident fund, gratuity, etc. were taken into consideration. Being aggrieved the petitioner has challenged the aforesaid communication and seeks a direction to be issued to the Bank of Baroda for her appointment on compassionate grounds. 2. The learned counsel for the petitioner by relying upon the decisions in Smt. Archana Wd/o Mahendra Arbat, Nanded and others vs. Maharashtra Gramin Bank, through its Regional Manager and others, 2021 (3) CLR 614 and Nitin Yohan Arawade vs. Central Bank of India, Central office, through its General Manager, 2021 (3) CLR 617 has urged that the amounts received towards provident fund and gratuity are not liable to be taken into consideration while determining the question whether the family was indigent or not. He submitted that in Nitin Yohan Arawade (supra) it has been held that payments of these statutory amounts cannot be considered as an impediment for being taken into consideration to deny compassionate appointment. On the contrary, the learned counsel for the Bank has relied upon the decisions in Punjab National Bank and others vs. Ashwini Kumar Taneja, AIR 2004 SC 4155 , General Manager (D and PB) and others vs. Kunti Tiwary and another, (2004) 7 SCC 271 , State Bank of India and others vs. Jaspal Kaur, (2007) 9 SCC 571 and State of Himachal Pradesh vs. Shashi Kumar, (2019) 3 SCC 653 to urge that the amounts received towards provident fund and gratuity have to be considered while determining the financial health of the family in the matter of grant of compassionate appointment in the context of the family being indigent. 3. 3. According to the Bank the petitioner after the death of her husband received an amount of Rs. 3,80,395/- towards provident fund and Rs. 6,88,110/- against gratuity. An amount of Rs. 56,719/- was also received by her towards leave encashment, Rs. 20,00,000/- was paid towards Group Term Life Insurance on 30-9-2019. The petitioner was initially receiving pension of Rs. 14,954/- per month from October 2019 which was revised to Rs. 25,584/- from September 2021. On the basis of receipt of aforesaid amounts, it is submitted that the Bank found that the financial condition of the family was not indigent and therefore the case of the petitioner for appointment on compassionate basis was not found to be made out under Clause 5 of the Scheme. 4. The Circular dated 18-2-2016 laying down the Scheme for compassionate appointment indicates that as per Clause 5.1, one of the conditions of eligibility for seeking compassionate appointment is that the family of the employee who died in harness is indigent and deserves immediate assistance for relief from financial destitution. Clause 5 of the Scheme for compassionate appointment that stipulates eligibility reads as under : “5. Eligibility: 5.1 The family is indigent and deserves immediate assistance for relief from financial destitution and.....” Under Clause 16.3 of the Scheme an application for compassionate appointment is not liable to be rejected merely on the ground that the family has received benefits under various welfare schemes. However, such benefits received have to be taken into account while making a balanced and objective assessment of the financial condition of the family.” 5. In Kunti Tiwary (supra), the Honourable Supreme Court observed that the object behind providing appointment on compassionate ground was by way of an exception to the general rule of appointment on the basis of open invitation of application and merit. It was held that pursuant to the decision in Umesh Kumar Nagpal vs. State of Haryana, (1994) 4 SCC 138 while determining the financial condition of the concerned family, the amounts received towards family pension, gratuity, employees/employer contribution to the provident fund, any compensation paid by the Bank or its welfare fund, etc. have to be taken into consideration. n the subsequent decision in Ashwinikumar Taneja (supra) it was noted that the aforesaid amounts received by a family of the deceased employee were required to be taken into consideration while assessing the financial condition of the family. have to be taken into consideration. n the subsequent decision in Ashwinikumar Taneja (supra) it was noted that the aforesaid amounts received by a family of the deceased employee were required to be taken into consideration while assessing the financial condition of the family. This position was reiterated in Jaspal Kaur (supra). In State Bank of India and another vs. Somvir Singh, (2007) 4 SCC 778 the action of the Authority of taking into consideration receipt of terminal benefits including family pension while deciding whether the family of the late employee had been left in penury or without any means of livelihood was approved. It was noticed that the Scheme for appointment on compassionate basis required assessment of the financial condition of the family including receipt of family pension, gratuity, etc. In a recent decision in Shashikumar (supra) the Honourable Supreme Court observed that a direction could not be issued to act in a manner contrary to the express terms of the Scheme which required family pension received by the dependents of the deceased employee to be taken into account while awarding merit points under diverse heads. From the aforesaid decisions, therefore, it is clear that while determining the financial condition of the concerned family and whether it was eligible being indigent and deserving immediate assistance for relief from financial destitution, the amounts received towards pension, gratuity, family pension amongst other benefits are required to be taken into consideration if so required to be considered while determining the financial position of the family. This would also be the purport of Clauses 5.1 and 16.3 being read together. 6. The Division Bench in Nitin Yohan Arawade (supra) has in paragraphs 15 and 16 observed as under : “15......It is unheard of that the compassionate appointment could be refused to an eligible member of the family which has lost a sole bread earner, if the family was not indigent. We have not come across any such example when the compassionate appointment is refused to an eligible member only on the ground that the family has funds to survive and therefore, would not need a source of income.......” “16. The learned advocate for the respondent has canvassed that the petitioner’s family has received gratuity amount, provident fund accumulations and pension. We have not come across any such example when the compassionate appointment is refused to an eligible member only on the ground that the family has funds to survive and therefore, would not need a source of income.......” “16. The learned advocate for the respondent has canvassed that the petitioner’s family has received gratuity amount, provident fund accumulations and pension. We are unable to accede to the submission by the respondent that because of such payments, an eligible person can be refused compassionate appointment. Gratuity amounts, provident fund accumulations and monthly pension (if eligible) are the legal rights of the employee/family, if the sole earner has either died in harness or has been medically incapacitated leading to his retirement. Provident fund accumulations cannot be taken away. Gratuity amount cannot be attached, save and except by following the due process of law. The pension cannot be stopped. Payment of these amounts cannot be considered as an impediment or an embargo on the appointment of an eligible member of the family on compassionate basis.’ It has thereafter been observed in paragraph 17 that: “17........However, whether the family is indigent or not, cannot be the basis for refusing compassionate appointment to a candidate, who is otherwise eligible for such appointment under the scheme.’ It was concluded that appointment on compassionate ground cannot be refused only because the financial background of the family could be good. The decision in Nitin Yohan Arawade (supra) arises from a similar Scheme for compassionate appointment of the Central Bank of India and Clause 5.1 of that Scheme is similarly worded as Clause 5.1 of the present Scheme. 7. In the light of the law laid down by the various decisions of the Honourable Supreme Court referred to hereinabove, we find that as per Clauses 5 and 16 of the Scheme for compassionate appointment it would be necessary to take into consideration the amounts received by the family of the employee who has died in harness towards provident fund, gratuity, family pension amongst other benefits. This would be necessary while determining the eligibility of the family as Clause 5.1 prescribes that the family must be indigent and deserving immediate assistance for relief from financial destitution for grant of compassionate appointment. Clause 16.3 also requires consideration of said aspect while making an objective assessment of the financial condition of the family. This would be necessary while determining the eligibility of the family as Clause 5.1 prescribes that the family must be indigent and deserving immediate assistance for relief from financial destitution for grant of compassionate appointment. Clause 16.3 also requires consideration of said aspect while making an objective assessment of the financial condition of the family. With respect, we are unable to concur with the proposition that payment of amounts towards provident fund, gratuity and family pension cannot be considered as an impediment or an embargo for the appointment of an eligible member of the family on compassionate basis. In the light of Clauses 5.1 and 16.3 it would not be permissible to exclude consideration of receipt of amounts of pension, gratuity and provident fund by the family while considering whether it was indigent and deserving immediate assistance for relief from financial destitution. 8. Since it has been held in Nitin Yohan Arawade (supra) which also considered a clause similar to Clause 5.1 herein that receipt of such amounts cannot be considered as an impediment or an embargo on the appointment of a member of the family on compassionate basis, we find it necessary to seek a reference to be made to a larger bench to consider the following question: “In the light of Clause 5.1 of the Scheme for appointment prescribing eligibility for seeking compassionate appointment subject to the family being indigent and deserving immediate assistance for relief from financial destitution, whether the amounts received by the family towards provident fund, gratuity, family pension, etc. are required to be taken into consideration while considering the aspect of the family being indigent and requiring assistance for relief from financial destitution? 9. The papers be placed before the Honourable the Chief Justice to consider referring the aforesaid question to a larger bench. Order accordingly.” 2. The papers having been placed before the Chief Justice, this larger Bench was constituted on April 19, 2022 to answer the referred question. 3. Mr. 9. The papers be placed before the Honourable the Chief Justice to consider referring the aforesaid question to a larger bench. Order accordingly.” 2. The papers having been placed before the Chief Justice, this larger Bench was constituted on April 19, 2022 to answer the referred question. 3. Mr. Akhtar, learned advocate appearing for the petitioner, contends that having regard to the object that an appointment on compassionate ground seeks to achieve, i.e. offering employment by way of succor to one dependent family member of the deceased employee, who happened to be the sole bread earner for all his family members, it would defeat such object if an otherwise rightful claim were to be nipped in the bud based on the quantum of money received as death-cum-terminal benefits like pension, gratuity, provident fund, etc. According to him, the Division Bench of this Court (Bench at Aurangabad) rightly held in its decision in Nitin Yohan Arawade vs. Central Bank of India, Central office, through its General Manager, 2021 (3) CLR 617 that “Payment of these amounts cannot be considered as an impediment or an embargo on the appointment of an eligible member of the family on compassionate basis.” 4. Mr. Akhtar draws our attention to the decision of the Supreme Court in Canara Bank vs. M. Mahesh Kumar, (2015) 7 SCC 412 and in particular to paragraph 15 thereof. While dealing with the contention of the appellant/bank that the respondent’s family was getting family pension and also obtained terminal benefits, the Supreme Court ruled that the same was of no consequence in considering the application claiming compassionate appointment. Relying upon paragraph 15, Mr. Akhtar urges that this being the settled position of law, the reference ought to be answered in the negative. 5. Mr. Samudra, learned advocate appears for the respondents, being the officers of the Bank of Baroda (hereafter “BoB” for short). Referring to the “Scheme for Compassionate Appointment or Payment of Ex-gratia Financial Relief to Dependents of Deceased Employees on Compassionate Grounds” (hereafter “the scheme” for short) framed by the BoB, he submits that any appointment on compassionate ground has to be made in terms of the scheme and not otherwise. The scheme provides that an applicant would have the liberty of electing any one of the two options, i.e. compassionate appointment or payment of lumpsum exgratia amount. The scheme provides that an applicant would have the liberty of electing any one of the two options, i.e. compassionate appointment or payment of lumpsum exgratia amount. However, any of these two options can be used only when the other conditions of compassionate appointment are met. 6. While inviting our attention to clause 5 of the scheme providing for eligibility, Mr. Samudra contends that the family of a deceased employee has to be ‘indigent’ and deserving of immediate assistance for relief from financial destitution for attracting the provisions of the scheme. According to him, the Division Bench decision of the Aurangabad Bench in Nitin Yohan Arawade (supra) although considered similar provisions of a scheme framed by the Central Bank of India but such bench did not have the occasion to consider the various precedents in the field of compassionate appointment. Inviting our further attention to paragraphs 17 and 18 of the decision in Nitin Yohan Arawade (supra), it is also his submission that the same has been delivered per incuriam. 7. In support of the last-mentioned submission, Mr. Samudra relies upon the decisions in Union of India and Ors. vs. Amrita Sinha, State of Himachal Pradesh and Anr. vs. Shashi Kumar, (2019) 3 SCC 653 , State Bank of India and Ors. vs. Jaspal Kaur, (2007) 9 SCC 571 , State Bank of India and Anr. vs. Somvir Singh, (2007) 4 SCC 778 , Union Bank of India and Ors. vs. M.T. Latheesh, (2006) 7 SCC 350 , National Hydroelectric Power Corporation and Anr. vs. Nanak Chand and Anr. AIR 2005 SC 106 , Punjab National Bank and Ors. vs. Ashwini Kumar Taneja, AIR 2004 SC 4155 , General Manager (D and PB) and Ors. vs. Kunti Tiwary and Anr. (2004) 7 SCC 271 and Umesh Kumar Nagpal vs. State of Haryana and Ors. (1994) 4 SCC 138 and further contends that in all such decisions it has been emphatically held that financial condition of the family of the deceased employee, allegedly in distress or penury, has to be evaluated or else the object of the scheme would stand defeated inasmuch as in such an eventuality, any and every dependent of an employee dying-in-harness would claim employment as if public employment is heritable. 8. Mr. Samudra further relies on several decisions to highlight what constitutes the ratio decidendi of a decision and what is obiter dictum in a decision. 8. Mr. Samudra further relies on several decisions to highlight what constitutes the ratio decidendi of a decision and what is obiter dictum in a decision. We need not refer to such decisions separately because law in this behalf is fairly well-settled. 9. Mr. Samudra has further placed before us an order dated December 6, 2021 passed by the Supreme Court of India in SLP (C) No. 19757 of 2021 (Central Bank of India vs. Nitin) to contend that the judgment and order in Nitin Yohan Arawade (supra) has been stayed. It is, thus, his submission that with the Supreme Court’s interference with the judgment and order under challenge, it is manifest that the same is clearly wrong and nothing much is required to be said by us except holding so. 10. According to Mr. Samudra, the petitioner received in excess of Rs. 30 lakh on account of death-cum-terminal benefits of her late husband and such amount indeed called for being taken into consideration along with the fact that the petitioner’s two sons are gainfully employed elsewhere; hence, rejection of her application for compassionate appointment cannot be branded as illegal and/or improper. 11. By referring to the facts as pleaded in the writ petition, the orders impugned therein and the reply affidavit filed on behalf of the respondents, Mr. Samudra finally contends that neither the petitioner nor her two sons possess the educational qualification for appointment in Class IV service of the BoB. That apart, the petitioner is also over aged and, therefore, ineligible. He, however, concedes that there is a clause for relaxation of the essential educational criterion. 12. Resting on his submissions as aforenoted, Mr. Samudra submits that the reference cannot but be answered in the affirmative. 13. In rejoinder, Mr. Akhtar invites our attention to clause 16.3 of the scheme to contend that an application for compassionate appointment is not to be rejected merely on the ground that the family of the deceased employee has received the benefits due/the benefits under the various welfare schemes and, therefore, the question of receipt of benefits cannot be taken into consideration at the time an application for compassionate appointment comes up for consideration. 14. Mr. Akhtar further contends that during the pandemic caused by COVID, the petitioner’s sons who were in private employment have lost their jobs. 14. Mr. Akhtar further contends that during the pandemic caused by COVID, the petitioner’s sons who were in private employment have lost their jobs. Also, her husband having obtained loan while in service, such loan has been deducted from the death cum terminal benefits leaving the petitioner with Rs. 25 lakh to fend for during the rest of her life and that of her sons. This, he submits, is insufficient for the petitioner’s survival. 15. Referring to the decision in Shashi Kumar (supra), Mr. Akhtar contends that the Supreme Court has expressed a line of thought in respect of fixation of income slabs for bringing objectivity and uniformity in decision making process; however, the scheme does not contain any such income slab for guiding the exercise of power by the decision maker on the concept of indigency incorporated in the scheme. According to him, this could result in exercise of power being unguided without being amenable to any control by specific provisions relating to fixation of income slabs. 16. Mr. Akhtar, thus, renewed his prayer that we may agree with the decision in Nitin Yohan Arawade (supra). 17. We have heard learned advocates for the parties and perused the several decisions cited at the bar including the decision in Nitin Yohan Arawade (supra) with which the Division Bench hearing this writ petition could not be ad idem. 18. There can perhaps be no dispute on the score that public employment in offices or posts under the State or its instrumentalities or any other authority covered by Article 12 of the Constitution must be in accordance with statutory rules or in their absence, in tune with the executive instructions issued for regulating recruitment. In every such process, the spirit of Articles 14 and 16 of the Constitution have to be followed meaning thereby that any appointment in public service must be preceded by an invitation to the public for offering one's candidature for consideration and providing equal opportunities to each of the applicants to participate in the process. Subject to fulfilment of the eligibility criteria, selection on the basis of merit invariably ought to be preferred. Appointment based solely on descent is inimical to the Constitutional scheme. One may profitably refer to the decision of the Supreme Court in Bhawani Prasad Sonkar vs. Union of India, (2011) 4 SCC 209 , in this regard. 19. Subject to fulfilment of the eligibility criteria, selection on the basis of merit invariably ought to be preferred. Appointment based solely on descent is inimical to the Constitutional scheme. One may profitably refer to the decision of the Supreme Court in Bhawani Prasad Sonkar vs. Union of India, (2011) 4 SCC 209 , in this regard. 19. Before proceeding to decide the reference, we may remind ourselves of certain well-settled principles on the topic of appointment on compassionate ground, relevant for the present reference, which have crystallized through precedents into a rule of law. They are: (a) Appointment on compassionate ground, which is offered on humanitarian grounds, is an exception to the above rule of equality in the matter of public employment. [See: General Manager, State Bank of India and Ors. vs. Anju Jain, (2008) 8 SCC 475 ]. (b) Compassionate appointment is ordinarily offered in two contingencies carved out as exceptions to the general rule, viz. to meet the sudden crisis occurring in a family either on account of death or of medical invalidation of the breadwinner while in service [See: V. Sivamurthy vs. Union of India, (2008) 13 SCC 730 ]. (c) The whole object of granting compassionate employment by an employer being intended to enable the family members of a deceased/ incapacitated employee to tide over the sudden financial crisis, appointments on compassionate ground should be made immediately to redeem the family in distress [See: Sushma Gosain vs. Union of India, (1989) 4 SCC 468 ]. (d) None can claim compassionate appointment by way of inheritance [See: State of Chattisgarh vs. Dhirjo Kumar Sengar, (2009) 13 SCC 600 ]. (e) Compassionate appointment is a concession and not a right and the criteria laid down in the Rules must be satisfied by all aspirants [See: SAIL vs. Madhusudan Das, (2008) 15 SCC 560 ]. (f) None can claim compassionate appointment, on the occurrence of death/medical incapacitation of the concerned employee (the sole bread earner of the family), as if it were a vested right, and any appointment without considering the financial condition of the family of the deceased is legally impermissible [See: Amrita Sinha (supra)]. (g) Compassionate appointment cannot be made in the absence of rules or instructions [See: Haryana State Electricity Board vs. Krishna Devi, (2002) 10 SCC 246]. (g) Compassionate appointment cannot be made in the absence of rules or instructions [See: Haryana State Electricity Board vs. Krishna Devi, (2002) 10 SCC 246]. (h) An employer cannot be compelled to make an appointment on compassionate ground contrary to its policy [See: Kendriya Vidyalaya Sangathan vs. Dharmendra Sharma, (2007) 8 SCC 148 ]. (i) An application for compassionate appointment has to be made immediately upon death/incapacitation and in any case within a reasonable period thereof or else a presumption could be drawn that the family of the deceased/incapacitated employee is not in immediate need of financial assistance. Such appointment not being a vested right, the right to apply cannot be exercised at any time in future and it cannot be offered whatever the lapse of time and after the crisis is over [See: Eastern Coalfields Ltd. vs. Anil Badyakar, (2009) 13 SCC 112 ]. (j) Offering compassionate employment as a matter of course irrespective of the financial condition of the family of the deceased and making compassionate appointments in posts above Class III and IV is legally impermissible [Umesh Kumar Nagpal (supra)]. (k) Indigence of the dependents of the deceased employee is the first precondition to bring the case under the scheme of ‘compassionate appointment’. If the element of indigence and the need to provide immediate assistance for relief from financial destitution is taken away from compassionate appointment, it would turn out to be a reservation in favour of the dependents of the employee who died while in service which would directly be in conflict with the ideal of equality guaranteed under Articles 14 and 16 of the Constitution [See: Union of India vs. B. Kishore, (2011) 13 SCC 131 ]. (l) The idea of compassionate appointment is not to provide for endless compassion [See: I.G. (Karmik) and Ors. vs. Prahalad Mani Tripathi, (2007) 6 SCC 162 ]. (m) Satisfaction that the family members have been facing financial distress and that an appointment on compassionate ground may assist them to tide over such distress is not enough; a dependent must fulfil the eligibility criteria for appointment [See: State of Gujarat vs. Arvindkumar T. Tiwari, (2012) 9 SCC 545 ]. (n) The object of compassionate employment is not to give a member of a family of the deceased employee a post much less a post for post held by the deceased [See: Umesh Kumar Nagpal (supra)]. (n) The object of compassionate employment is not to give a member of a family of the deceased employee a post much less a post for post held by the deceased [See: Umesh Kumar Nagpal (supra)]. (o) There cannot be reservation of a vacancy till such time as the applicant becomes a major after a number of years, unless there are some specific provisions [See: Sanjay Kumar vs. State of Bihar, (2000) 7 SCC 192 ]. (p) It is only in rare cases and that too if provided by the scheme for compassionate appointment and not otherwise, that a dependent who was a minor on the date of death/incapacitation, can be considered for appointment upon attaining majority [See: M. Mahesh Kumar (supra)]. (q) An appointment on compassionate ground made many years after the death/incapacitation of the employee or without due consideration of the financial resources available to the dependent of the deceased/incapacitated employee would be directly in conflict with Articles 14 and 16 of the Constitution [See: National Institute of Technology vs. Niraj Kumar Singh, (2007) 2 SCC 481 ]. (r) Dependents if gainfully employed cannot be considered [See: Haryana Public Service Commission vs. Harinder Singh and Anr. (1998) 5 SCC 452 ]. (s) Courts cannot allow compassionate appointment dehors the statutory regulations/instructions. Hardship of the candidate does not entitle him to appointment dehors such regulations/instructions [See: Jaspal Kaur (supra)]. (t) Courts cannot confer benediction impelled by sympathetic consideration [See: Life Insurance Corporation of India vs. Asha Ramchandra Ambekar, (1994) 2 SCC 718 ]. 20. There is, however, a small grey area in regard to compassionate appointment and it is with regard to the applicability of the rules/scheme/policy in force either on the date of the cause of action, i.e. death, or the rules/scheme/policy in force on the date of consideration of application. In other words, between the two, which rules/scheme/policy would be relevant. In our humble view, apparently inconsistent and irreconcilable views have been expressed by the Supreme Court on this issue. This position is acknowledged by the Supreme Court itself. We may note that after referring to various decisions that were cited, a Bench of two Hon’ble Judges by its order in State Bank of India and Ors. In our humble view, apparently inconsistent and irreconcilable views have been expressed by the Supreme Court on this issue. This position is acknowledged by the Supreme Court itself. We may note that after referring to various decisions that were cited, a Bench of two Hon’ble Judges by its order in State Bank of India and Ors. vs. Sheo Shankar Tewari, (2019) 5 SCC 600 , had the occasion to observe that the principles emanating from the two lines of decisions, in Their Lordships’ considered view, were not consistent and do not reconcile; the matter, therefore, required consideration by a larger Bench of at least three Hon’ble Judges of the Supreme Court and accordingly, the Registry was requested to place the papers before the Hon’ble Chief Justice of India for constituting a Bench of appropriate strength to dispose of the matter. 21. The order in Sheo Shankar Tewari (supra) is dated February 8, 2019. Close on the heels of such order of reference, we find that in N.C. Santhosh vs. State of Karnataka, (2020) 7 SCC 617 , a Bench comprising three Hon’ble Judges of the Supreme Court after considering the decision in Sheo Shankar Tiwari (supra) has held as follows : “19. Applying the law governing compassionate appointment culled out from the above-cited judgments, our opinion on the point at issue is that the norms, prevailing on the date of consideration of the application, should be the basis for consideration of claim for compassionate appointment. A dependant of a government employee, in the absence of any vested right accruing on the death of the government employee, can only demand consideration of his/her application. He is, however, disentitled to seek consideration in accordance with the norms as applicable, on the day of death of the government employee.” 22. One would not be mistaken in perceiving that the issue has attained finality by reason of such decision of a larger Bench of the Supreme Court and, therefore, the rules/scheme/policy prevalent on the date of the application for compassionate appointment would be the relevant date. 23. One would not be mistaken in perceiving that the issue has attained finality by reason of such decision of a larger Bench of the Supreme Court and, therefore, the rules/scheme/policy prevalent on the date of the application for compassionate appointment would be the relevant date. 23. We, however, find that in a recent decision dated November 18, 2021 rendered by a Bench of two Hon’ble Judges of the Supreme Court in Civil Appeal No. 6903 of 2021 State of Madhya Pradesh vs. Ashish Awasthi, it has been held that: “4......As per the settled proposition of law laid down by this Court for appointment on compassionate ground, the policy relevant at the time of death of the deceased employee only is required to be considered and not the subsequent policy.” 24. The present reference, however, does not require us to give our decision on the point covered by the aforesaid line of decisions. However, since Ashish Awasthi (supra) did not have the occasion to consider the decision in N.C. Santhosh (supra), it ought to prevail. 25. Bearing all these principles in mind, it would now be our endeavor to answer the reference. 26. There can be no gainsaying that a decision of a Constitutional Court is an authority for what it decides; hence, the facts pleaded and the exact question requiring an answer based on such facts assumes importance. The facts recorded in the decision in Nitin Yohan Arawade (supra) reveal an unfortunate story. An employee (father of the petitioner) of the respondent/bank, i.e. Central Bank of India, had applied for voluntary retirement on medical grounds since the permanent medical board of such respondent/bank had certified that he was completely and permanently incapacitated to perform any type of services in the respondent/bank. The prayer for retirement on medical ground was accepted and the petitioner’s father relieved from employment. The petitioner had, thereafter, applied for compassionate appointment in terms of the relevant scheme for compassionate appointment setting out the particulars of the dependents on his father’s income and the financial condition of the family. At the relevant time, the petitioner was in the employment of ICICI Bank in the clerical category. He was allegedly informed that unless he resigns, he would not be considered for compassionate appointment. At the relevant time, the petitioner was in the employment of ICICI Bank in the clerical category. He was allegedly informed that unless he resigns, he would not be considered for compassionate appointment. Considering that his career prospects with the respondent/bank were better than the job that he had with ICICI Bank, he tendered resignation and intimated the respondent/bank that in view of such resignation there ought not to be any impediment for consideration of his application for compassionate appointment. After sometime, the respondent/bank informed the petitioner that his application seeking appointment on compassionate ground had been rejected for the reason that the family of the ex-employee was not ‘indigent’. In view of such facts and circumstances, it was contended on behalf of the petitioner that his right to be inducted in the employment of the respondent/bank on compassionate ground could not have been defeated merely because the family is not indigent. Several decisions of the Supreme Court including M. Mahesh Kumar (supra) were cited on behalf of the petitioner. The learned advocate for the respondent/bank, while opposing the petitioner’s prayer, had placed for consideration of the Division Bench the decision of the Supreme Court in State Bank of India vs. Raj Kumar, (2010) 11 SCC 661 and none other. It could be true that the petitioner had resigned from the service of ICICI Bank fondly hoping that it would pave the way for his appointment on compassionate ground in the respondent/bank. Obviously, in such a circumstance, the impugned order of rejection of his claim hit him like a bolt from the blue. The Division Bench noted that the respondent/bank had not cited his service with ICICI Bank as a disentitling factor. Also, never before, had the respondent/bank ever indicated to the petitioner that his application for compassionate appointment would not be entertained if his family was not living in abject poverty and/or was not indigent. In the aforesaid factual backdrop, the Division Bench proceeded to make the Rule absolute by making certain observations in paragraphs 15, 16 and 17 which have been noted in the order of reference dated April 7, 2022 passed by the Division Bench of this Court (Nagpur Bench) on this writ petition. 27. In the aforesaid factual backdrop, the Division Bench proceeded to make the Rule absolute by making certain observations in paragraphs 15, 16 and 17 which have been noted in the order of reference dated April 7, 2022 passed by the Division Bench of this Court (Nagpur Bench) on this writ petition. 27. Having perused the decision in Nitin Yohan Arawade (supra), we find that sub-clauses 5.1 and 5.2 under clause 5 titled “Eligibility” of the scheme for compassionate appointment of the Central Bank of India are similarly worded as sub-clauses 5.1 and 5.2 under clause 5 in the scheme framed by the BoB. Noticing such similarity, the Division Bench went on to record its opinion in the order dated April 7, 2022 that the decisions in Umesh Kumar Nagpal (supra), Ashwini Kumar Taneja (supra), Jaspal Kaur (supra) and Shashi Kumar (supra) had laid down the law that while determining the financial condition of the concerned family and ascertaining whether it was indigent and deserving immediate assistance for relief from financial destitution, the employer was required to take into consideration the amounts received towards pension, gratuity, family pension amongst other benefits. 28. As can be discerned from the principles that we have culled out and referred to in paragraph 19 (supra), compassionate appointment is a need-based concept which permits a side-door entry in service; therefore, the policy behind it has to be given strict interpretation. Being an exception to the normal rule for recruitment in public service, including the guarantees of equality flowing from Articles 14 and 16 of the Constitution, no such appointment can be made de hors the scheme for compassionate appointment which the employer has put in place for regulation of the procedure for appointment. In the scheme framed by the BoB, a family has to be ‘indigent’ i.e. the state of being poor or needy, so as to attract the provisions of compassionate appointment. Unless the financial condition of the family is in a state of indigence, such an appointment can never be made. The criterion of indigence has to be applied only in cases where the family is without any means of livelihood and living hand to mouth. Unless the financial condition of the family is in a state of indigence, such an appointment can never be made. The criterion of indigence has to be applied only in cases where the family is without any means of livelihood and living hand to mouth. That a breadwinner who is in public employment suddenly departs for his heavenly abode leaving his family members in utter financial distress and that an appointment on humanitarian ground could be offered so as to ensure that such family may not starve being the predominant object and purpose, the first and foremost condition for determination of eligibility of a claimant by the employer is to arrive at a finding that but for an appointment on compassionate ground, the family members may be in severe economic crisis and rendered destitute for which even their survival could be at stake. The sine qua non in terms of the scheme of the BoB, therefore, is the assessment of the financial condition of the family left behind by the deceased employee and if on such assessment it is found that the family does not satisfy the criterion of being ‘indigent’ there is no question of taking the process of consideration of the application for appointment further by examining whether the dependent is eligible or not. 29. It does not appear from the Division Bench of this Court in Nitin Yohan Arawade (supra) that it had the benefit of perusing and considering the law laid down by the Supreme Court right from the decision rendered in 1994 in Umesh Kumar Nagpal (supra) till the decision in 2020 in Amrita Sinha (supra). One of the reasons could be that appropriate assistance was lacking. However, the decision in Raj Kumar (supra) was cited which ruled that several circumstances having a bearing on eligibility, and financial condition, up to the date of consideration may have to be taken into account. Nonetheless, since the decision in Nitin Yohan Arawade (supra) is pending consideration before the Supreme Court, we would regard it as a decision that turns on the facts of the case before the Division Bench. 30. Nonetheless, since the decision in Nitin Yohan Arawade (supra) is pending consideration before the Supreme Court, we would regard it as a decision that turns on the facts of the case before the Division Bench. 30. It is pertinent to note that neither was there any challenge to the provisions of the scheme framed by the Central Bank of India in Nitin Yohan Arawade (supra) nor has a challenge been laid to the provisions of the scheme framed by the BoB in this writ petition; therefore, the controversy would boil down to the question as to whether the petitioner is bound by the scheme as framed. There can be no two opinions that without any challenge being laid to the scheme, anyone claiming compassionate appointment thereunder would be as much bound by the scheme as the framer thereof. Without there being any challenge, it is difficult to accept the view that whether the family is indigent or not cannot be the basis for refusing compassionate appointment to a candidate who is otherwise eligible for such appointment under the scheme. 31. That apart, indigency of the family of the deceased employee is substantially a question of fact which has to be ascertained not merely on the basis of what the family members say but on the basis of an objective evaluation of all relevant facts. Not only death-cum-terminal benefits but also other income that the family might have had, say agricultural income or rent income or any other income, must enter into the consideration of the employer while it makes a departure from the Constitutional principles and proceeds to offer an appointment on compassionate grounds. Even if there is no income from any other source except what the family members have received as death-cum-retiral benefits, the point that would obviously arise is whether such quantum of benefits is sufficient to eke out a reasonable standard of living. However, what quantum of benefits should be considered sufficient to assist the family in tiding over the financial crisis for the time being must depend on the facts of each case and has to be left for the decision of the employer. It cannot be the object of any beneficent scheme to offer appointment to a dependent family member, although the family might have some means to survive. It cannot be the object of any beneficent scheme to offer appointment to a dependent family member, although the family might have some means to survive. We do not rule out pitiable situations but, on that score, jurisdiction under Article 226 cannot be exercised on sentiments or sympathy. 32. The Division Bench in Nitin Yohan Arawade (supra) did have the occasion to consider the decision in M. Mahesh Kumar (supra). Reliance has been placed before us by Mr. Akhtar on such decision. We see no reason to be guided by the decision in M. Mahesh Kumar (supra) in answering the reference because of the difference in facts. The first sentence of paragraph 15 of such decision cannot be read in isolation; it has to be read with the other sentences that follow. Reading thereof would reveal that a scheme of 1993 was under consideration which permitted even a minor dependent of the deceased employee to apply for compassionate appointment after attaining majority. The Court in such a circumstance held that this was an indicator that granting of terminal benefits was of no consequence because even if terminal benefits were given, still the bank would keep the appointment open for the minor applicant till he attains majority. The decision in M. Mahesh Kumar (supra) is, thus, clearly distinguishable. It is also found on perusal of the decision in Shashi Kumar (supra) that M. Mahesh Kumar (supra) has been distinguished and it has been held that the contention of the appellants that the scheme requires consideration of all relevant sources of income and hence, the 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 has merit. 33. There is, however, a decision of the Supreme Court in Govind Prakash Verma vs. Life Insurance Corporation of India, (2005) 10 SCC 289 , which would tend to support the view expressed in Nitin Yohan Arawade (supra). It was held therein that it was wholly irrelevant for the departmental authorities as well as the learned Single Judge to take into consideration the amount which was paid as family pension to the widow of the deceased and other amounts paid on account of terminal benefits under the rules. It was held therein that it was wholly irrelevant for the departmental authorities as well as the learned Single Judge to take into consideration the amount which was paid as family pension to the widow of the deceased and other amounts paid on account of terminal benefits under the rules. According to the Court, the scheme of compassionate appointment is over and above whatever is admissible to the legal representatives of the deceased employee as benefits of service which one gets on the death of the employee. However, the Supreme Court in at least four of its subsequent decisions in Mumtaz Yunus Mulani vs. State of Maharashtra, (2008) 11 SCC 384 , Union of India vs. Shashank Goswami, (2012) 11 SCC 307 , State Bank of India vs. Surya Narain Tripathi, (2014) 15 SCC 739 and Shashi Kumar (supra) has held that Govind Prakash Verma (supra) did not notice the decision in Umesh Kumar Nagpal (supra) and the long line of decisions that followed it. The view expressed in Govind Prakash Verma (supra) was also considered in State of Himachal Pradesh vs. Parkash Chand, (2019) 4 SCC 285 , and it was held that the finding therein was purely on the facts of that case and was of no relevance to the facts in Parkash Chand (supra). Govind Prakash Verma (supra), thus, cannot be treated as a binding precedent. 34. The contention of Mr. Samudra that the Supreme Court has stayed the operation of the judgment and order in Nitin Yohan Arawade (supra) and hence, that should be sufficient reason to hold that the decision does not lay down correct law is, however, not acceptable. There is a difference between quashing of an order and stay of operation of an order. Quashing of an order results in the restoration of the position as it stood on the date of passing of the order, upon it being quashed. Stay of operation of an order, however, does not lead to such a result. It only means that the order which has been stayed would not remain operative from the date stay is granted. It is not wiped out of existence as in the case of an order which is quashed. If any authority is required, one may profitably refer to the decision in Shree Chamundi Mopeds Ltd. vs. Church of South India Trust Association, (1992) 3 SCC 1 . 35. It is not wiped out of existence as in the case of an order which is quashed. If any authority is required, one may profitably refer to the decision in Shree Chamundi Mopeds Ltd. vs. Church of South India Trust Association, (1992) 3 SCC 1 . 35. It would suffice for the purpose of the present reference to observe that based on our consideration of the provisions of the unchallenged scheme, as framed, as well as the decisions of the Supreme Court in Umesh Kumar Nagpal (supra), Kunti Tiwary (supra), B. Kishore (supra), Somvir Singh (supra), Ashwini Kumar Taneja (supra) and Amrita Sinha (supra), we are not persuaded to agree with Mr. Akhtar that payment of amounts towards pension, provident fund and gratuity cannot be considered as an impediment or an embargo in the appointment of an eligible member of the family on compassionate basis. This is a fallacious argument when viewed in the light of the first and foremost condition for compassionate appointment that the family members of the employee dying-in-harness have to demonstrate indigence as discussed above. In evaluating the claim for compassionate appointment in terms of any scheme containing a clause similar to clause 5, as framed by the BoB, we hold that it would be the obligation of the employer bank to assess and evaluate the financial condition of the family of the deceased employee and only upon a satisfaction being reached that the family, being indigent, needs immediate succor by way of an appointment on compassionate ground, it may proceed to determine eligibility on the other counts. 36. Mr. Samudra’s submissions that the petitioner is not eligible for appointment need not be considered by us since this Bench has been constituted and tasked only to decide the reference. 37. For the reasons aforesaid, we answer the reference in the affirmative. 38. The writ petition may now be placed before the appropriate bench for decision in terms of the answer to the referred question, as above.