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2024 DIGILAW 492 (ALL)

Anjesh v. Food Corporation of India

2024-02-15

J.J.MUNIR

body2024
JUDGMENT : 1. The petitioner, Anjesh is a son of the late Radhey Giri, an employee of the Food Corporation of India. Radhey Giri died in harness on 21.01.2009, leaving behind him his widow, his son and two daughters. Upon demise of Radhey Giri, the petitioner's mother Smt. Sona Devi, moved an application before the District Manager, Food Corporation of India, Allahabad, seeking compassionate appointment for her son on account of the sudden demise of her husband. The petitioner himself made an application, seeking compassionate appointment, to the General Manager, Food Corporation of India, Lucknow on 15.06.2009. The petitioner says that he is a graduate and has earned his degree of Bachelor of Science in the year 2014. The petitioner submitted his claim in the prescribed format in the month of September, 2009 before the Food Corporation of India, District Office Agra, a copy of which is annexed as Annexure No.5 to the writ petition. The Regional Manager, Food Corporation of India, Lucknow, who is respondent No.3 to this writ petition, by a letter dated 17th December 2009 directed the petitioner to get his health certificate from the Chief Medical Officer, Allahabad. The medical examination was done on 23.12.2009 and a certificate of that date issued. 2. The Committee, competent to assess the petitioner's claim for compassionate appointment, examined his case and submitted a report dated 13.01.2010, opining that the family are living in hardship and a compassionate appointment is very necessary. It appears that taking into account the petitioner's claim, the recommendations of the Committee, besides similar claims by others, a roster was drawn up by the District Manager, Food Corporation of India, District Allahabad, placing the petitioner's name at serial No.15, showing the date of his application as 25.02.2010. The roster serial number indicated was 14. The roster aforesaid was forwarded by the District Manager to the Assistant General Manager (Industrial Relation), Food Corporation of India, Lucknow for necessary action on 18.06.2013. A reminder dated 24.02.2014 was sent by the District Manager, Food Corporation of India, Allahabad to the Assistant General Manager (Industrial Relation), Food Corporation of India, Lucknow. 3. It is the petitioner's case that vide letter dated 20.10.2014, the District Manager, FCI, Allahabad intimated the Assistant General Manager (Industrial Relation-Labour), Food Corporation of India, Lucknow about the roster position of claims pending before him for compassionate appointment. 3. It is the petitioner's case that vide letter dated 20.10.2014, the District Manager, FCI, Allahabad intimated the Assistant General Manager (Industrial Relation-Labour), Food Corporation of India, Lucknow about the roster position of claims pending before him for compassionate appointment. It is averred that in the office of the District Manager, Food Corporation of India, Allahabad, no compassionate appointment was given to any candidate. An information was secured by one Satyapal Singh from the Manager (IR-L), acting on behalf of the Assistant General Manager (IR-L), Food Corporation of India, Regional Office, Lucknow, that there were two posts available to be filled up on compassionate ground with the Food Storage Depot, Naini, Allahabad. At the same time, vide a letter dated 21.12.2016, the Manager (IR-L) in the office of the Assistant General Manager (IR-L) informed the petitioner that for the present, there are no posts available to be filled up on compassionate basis in the Corporation's depot at Naini, Allahabad. 4. The petitioner has specifically pleaded in Paragraph No.21 of the writ petition that on account of his father's sudden death in harness, the family is in distress and sent a representation dated 27.12.2016 to the Chairman, Food Corporation of India, New Delhi, as well as a representation dated 08.03.2017 to the Regional Manager, Food Corporation of India, Lucknow, requesting that the petitioner's case for compassionate appointment be considered. The petitioner then received a memo dated 11.01.2017 from the Assistant General Manager (IR-L), Food Corporation of India, Lucknow, informing him that for every depot at the depot level, a roster had been prepared for compassionate appointment. Out of the available vacancies, 5% are set apart for compassionate appointment, to which appointments are made according to the roster. The letter also says that at the Naini depot of the Corporation at Allahabad, the petitioner's name stands at the 14th place of the roster. It is also said in the memo that in the entire State, a roster for compassionate appointments for the DLS/ DPS labourers was being drawn up. After the process was over, the compassionate appointments would be made according to the new roster against the available vacancies. 5. The respondent General Manager (IR-L) reiterated his stand about the petitioner's roster position at the FSD, Allahabad by his memo dated 23.03.2017. After the process was over, the compassionate appointments would be made according to the new roster against the available vacancies. 5. The respondent General Manager (IR-L) reiterated his stand about the petitioner's roster position at the FSD, Allahabad by his memo dated 23.03.2017. The petitioner again received a memo dated 09.08.2017 from the Regional Office of the Food Corporation of India at Lucknow, saying that there was a 5% ceiling on the total number of available posts against which compassionate appointment could be made, and that considering the petitioner's roster position, there was no post available for him. The petitioner then represented the matter further to the General Manager (IR) on 03.04.2023, sending the communication by registered post with a request that his case had already been recommended by the Committee, but no action taken, which may now be considered. Finding inaction and the stand of the respondent, Food Corporation of India (for short, 'the Corporation'), to be destructive of the purpose of compassionate appointment, the petitioner instituted the present writ petition on 16.05.2023, praying that a mandamus be issued, commanding the respondents to appoint the petitioner on compassionate grounds. 6. In the short counter affidavit that was filed in Court on 12.07.2023, a stand was taken that the Departmental Labour System has been abolished, of which the deceased Radhey Giri was a member. 7. This Court required the respondents to file a detailed counter affidavit, which was filed on 19.07.2023. A rejoinder was filed to it on 30.07.2023. 8. The respondents, Corporation have taken a stand that compassionate appointment in their establishment is governed by the 'Scheme for Compassionate Appointment' enforced by the Government of India, Ministry of Personnel, Public Grievances and Pensions (Department of Personnel & Training) vide memorandum, bearing F No. 14014/02/2012--Estt. (D) dated 16th January, 2013. This office memorandum has been issued by an Under Secretary to the Government of India. The Scheme for Compassionate Appointment (for short, 'the Scheme') has been pleaded by the respondent Corporation to say that compassionate appointments can be made up to a maximum of 5% of the available vacancies, falling under direct recruitment quota, in any Group-C posts. The position in this regard will be considered in moreful detail with reference to the Scheme during the course of this judgment. 9. The position in this regard will be considered in moreful detail with reference to the Scheme during the course of this judgment. 9. In Paragraph No.5 of the short counter affidavit, it is said that the Nagpur Bench of the Bombay High Court had taken cognizance of a news item, published in the Times of India, that the Departmental Labour System workers were being paid salary, running into more than Rs.4 lacs a month. The public interest litigation, which was assigned PIL No.84 of 2014 [Court on its Own Motion v. Union of India and others, (2016) 2 Mah LJ 647], was disposed of by the Nagpur Bench of the Bombay High Court vide judgment dated 20.11.2015, issuing a slew of directions to the Government of India to consider phasing out the Departmental Labour System in order to spare the public exchequer of money wasted on the system, that could 'be utilized for better purposes', to borrow the words of their Lordships. The following directions were issued by the Division Bench to the Government of India : “(i) The Government of India is directed to decide the representation made by the Food Corporation of India for grant of exemption under the provisions of Section 31 of the said Act within a period of one month from today, in the light of observations made by us hereinabove within a period of one month from today. (ii) The Government of India shall decide the issue regarding denotification of the depots of the Food Corporation of India, in respect of which notification is issued u/s.10 of the said Act, within a period of six months from today, in the light of observations made by us hereinabove and the report of M/s.Deloitt Consultancy and the report of High Level Committee appointed by the Government of India itself. (iii) We clarify that the respondent/Food Corporation of India would be entitled to transfer the services of departmental labourers from one depot to another subject to protecting their salary and all other service conditions. (iv) We also clarify that the respondent/ Corporation would be at liberty to implement its policy of change in the Scheme of incentives. (v) The Government of India shall also take a decision regarding abolition of system of departmental labourers in a phased manner or absorbing their services in other establishments as recommended by the High Level Committee.” 10. (iv) We also clarify that the respondent/ Corporation would be at liberty to implement its policy of change in the Scheme of incentives. (v) The Government of India shall also take a decision regarding abolition of system of departmental labourers in a phased manner or absorbing their services in other establishments as recommended by the High Level Committee.” 10. A petition for special leave to appeal bearing SLP(C) No.19218 of 2016, Food Corporation of India Workers Union v. Union of India, was preferred against the judgment, about which it is said in Paragraph No.6 of the short counter affidavit that it was dismissed by the Supreme Court vide order dated 31.07.2017. It is further on pleaded in Paragraph No.7 of the short counter affidavit that in compliance with the orders of the Bombay High Court, the Ministry of Labour & Employment, Government of India have granted exemption to the Corporation from the applicability of the prohibitory notifications issued under Section 10 of the Contract Labour (Regulation and Abolition) Act, 1970, and, in consequence, permitting the Corporation to engage contract labour in the notified depots. The exemption notification is renewed by the Government after every two years, as the pleading goes. 11. It is further said that acting on the judgment of the Bombay High Court, last mentioned, the Ministry of Labour & Employment are actively considering de-notification of the notified depots of the Corporation. It is also pleaded that in compliance with the judgment of the Bombay High Court, last referred, the Ministry of Consumer Affairs, Food and Public Distribution, Government of India vide O.M. No.18013/2/2018-FC-3 dated 03.01.2020, have declared the Departmental Labour System a dying cadre. The Corporation Headquarters had communicated the said decision to the Field Officers vide circular dated 08.01.2020, clearly saying that there shall be no further employment under the Departmental Labour System. 12. In Paragraph No.10 of the short counter affidavit, a specific case has been pleaded to the effect that in view of declaration of the Departmental Labour System, a dying cadre, appointment of family members of a deceased employee, who was part of that system, on compassionate ground, has been placed in abeyance vide Corporation Headquarters circular dated 28.09.2020. 12. In Paragraph No.10 of the short counter affidavit, a specific case has been pleaded to the effect that in view of declaration of the Departmental Labour System, a dying cadre, appointment of family members of a deceased employee, who was part of that system, on compassionate ground, has been placed in abeyance vide Corporation Headquarters circular dated 28.09.2020. It is then said that vide Circular No. IR(L)/4(9)/2021/ dated 28.07.2021, it was clarified by the Corporation Headquarters that while appointment on compassionate grounds to dependents of deceased employees, serving under the Departmental Labour System, would continue to be in abeyance, but appointment on compassionate basis in regard to Direct Payment System workers may be considered as per existing policy. About the petitioner’s father, it is said that he was employed under the Departmental Labour System and died in the year 2009. The petitioner’s name was registered in the compassionate appointment roster at the Divisional Office, Allahabad. However, the petitioner could not be appointed for want of vacancies. It is then said that as the Departmental Labour System has been declared a dying cadre, there exists no vacancy in the said system. The workers, already inducted in the said system, are functioning on supernumerary posts and the system will die out or vanish with the retirement, death or resignation of the existing workers in course of time. The Board of Directors of the Corporation have already approved the voluntary retirement scheme for workers in the Departmental Labour System, and the same will be implemented immediately after receipt of approval of the Government of India. It is pleaded that there is no scope for inducting or appointing any new worker under the said system, since such an appointment would mean that the system would never die out and the object of declaring it a dying cadre defeated. 13. The stand further taken in Paragraph No.14 of the short counter affidavit is that the Corporation are examining the possibility of considering the pending applications of the family members of deceased employees, functioning under the Departmental Labour System as on 03.01.2020 under the 'Direct Payment System' or the 'No Work No Pay System', subject to fulfillment of necessary conditions under the policy for compassionate appointment. The said system is also a regular labour system, which is current in the Corporation, and not being phased out. 14. The said system is also a regular labour system, which is current in the Corporation, and not being phased out. 14. In the counter affidavit subsequently filed, the basic stand taken is the same as that in the short counter affidavit, apart from certain pleadings in answer to the writ petition, of which due note would be taken during course of this judgment. 15. Heard Mr. Pradeep Kumar Srivastava, Advocate, holding brief of Mr. Pankaj Kumar Asthana, learned Counsel for the petitioner and Mr. S. K. Mishra, learned Counsel appearing on behalf of the respondents. 16. It is submitted by the learned Counsel for the petitioner that compassionate appointment had to be considered for him by the Corporation, according to the rules or the scheme in force when his father passed away, and not the scheme or rules that have been later on introduced. He has placed reliance for the purpose on the decision of the Supreme Court in Secretary to Government Department of Education (Primary) and others v. Bheemesh alias Bheemappa, (2021) 20 SCC 707 , where it has been held in the context of the date of applicability of a scheme for compassionate appointment or a modified scheme, that it ought to apply with reference to the date of death of the employee in harness and not any other date, like the date when the dependent moves for consideration or the application is considered. It is also argued by the learned Counsel for the petitioner, Mr. Pradeep Kumar Srivastava, that the fact that the deceased employee was a member of the Departmental Labour System, which has now been declared a dying cadre, is not at all relevant to the consideration of his right to compassionate appointment. He submits that the petitioner's case for compassionate appointment has to be considered against one or the other post in the establishment of the Corporation, suitable to his qualification that is part of a living cadre. In the submission of the learned Counsel for the petitioner, it is misconceived on the respondents' part to relate or identify the petitioner's claim for compassionate appointment to the cadre to which his father belonged and then refuse to consider it by saying that his father's cadre is a dying one. 17. The object of compassionate appointment is to bring immediate relief to the dependent family members of an employee, who dies in harness. 17. The object of compassionate appointment is to bring immediate relief to the dependent family members of an employee, who dies in harness. The fact that the deceased belonged to a cadre, which was declared dying, even on the date of his demise, would not affect the rights of the dependents under the Dying in Harness Rules or the scheme in force in the establishment to seek compassionate appointment, because the purpose of such an appointment is quite unreferable to the fact of abolition of the deceased employee's cadre. 18. Mr. S.K. Mishra, learned Counsel for the respondents, on the other hand, has refuted the submissions advanced by the learned Counsel for the petitioner and submits that his case was considered according to the scheme after his father's demise. He was placed on the compassionate appointment roster, but within the ceiling limit, no posts were available to appoint him. Later on, the Departmental Labour System, to which the petitioner's father belonged, has been declared a dying cadre, and under the schemes subsequently declared, dependents of employees of that cadre, who died in harness at whatever time, have limited avenues of consideration for appointment on compassionate basis. The petitioner can only be considered, according to the Corporation's policy for compassionate appointment, under the Direct Payment System as he is the dependent of a deceased employee of the Departmental Labour System, whose claim was there on 03.01.2020. 19. Upon hearing learned Counsel for the parties, this Court thinks that there is no force in the stand taken by the respondents that because the Departmental Labour System, of which the petitioner's father was a member, has now been declared a dying cadre, the petitioner's case for compassionate appointment cannot be considered for that reason alone. The fact that the employee, whose dependent claims appointment, belongs to a dying cadre, is completely irrelevant to the object of compassionate appointment, provided there is in force a scheme for such appointment on the date of death of the employee in harness. Why this is so, can be understood like this. The purpose of compassionate appointment is to extend an immediate helping hand to members of a deceased employee's family, who passes away in harness, plunging them into an unforeseen economic crisis. It is a mechanism to enable the survivors to swim through the tragedy. 20. Why this is so, can be understood like this. The purpose of compassionate appointment is to extend an immediate helping hand to members of a deceased employee's family, who passes away in harness, plunging them into an unforeseen economic crisis. It is a mechanism to enable the survivors to swim through the tragedy. 20. The other principle of equal force is that compassionate appointment is not an inherent right, but the creature of a statutory rule or a scheme framed for the purpose and enforced in the employer's establishment. Now, if the deceased on the date of his demise in harness was the holder of a post that was already a dying cadre, the deceased would have certainly survived the abolition of the cadre until the time of his retirement, resignation from service or termination of employment in some other manner known to law. He would, while a member of a dying cadre, stay in service until the determination of his employment. He would continue to support his dependent family members until he exited employment. Therefore, the fact that an employee belonged to a dying cadre, when he died in harness, is quite irrelevant to his dependents' right to seek compassionate appointment, provided, of course, it is there under a scheme framed for the purpose or rules. In this connection, reference may be made to a Bench decision of the Himachal Pradesh in Bina Devi v. State of H.P. and another, 2010 SCC OnLine HP 4642. In Bina Devi (supra), V.K. Ahuja, J., speaking for the Division Bench, observed : “2. It appears that the petitioner is on the third round of litigation. The application was rejected on the only ground that the husband of the petitioner was an employee of Nahan Foundry and the same had been declared as a dying cadre. For one thing, it has to be seen that policy regarding compassionate appointment as promulgated by the government on 18th January, 1990 and clarified thereafter on several occasions, does not make any difference as to whether a government servant is in a dying cadre or not. The only expression used in the policy is ‘government servant’. There is no dispute that the husband of the petitioner was a government servant at the time of his death. In other words, it is a case of an employee dying while in government service. The only expression used in the policy is ‘government servant’. There is no dispute that the husband of the petitioner was a government servant at the time of his death. In other words, it is a case of an employee dying while in government service. That apart, it is seen from Annexure P-8, order, dated 23rd December, 1989 in the matter of taking over of Nahan Foundry that “The employee taken over from erstwhile Nahan Foundry will be integrated in the cadre of corresponding categories of employees of PWD/IPH subject to provision of para-7.” 21. There is another feature added to this case, different from one where a member of a cadre, that is declared dying, dies in harness, leaving behind an eligible dependent for compassionate appointment under a scheme or rule in force in the establishment. The feature in this case is that when the petitioner's father died, that is to say, on 21.01.2009, the Departmental Labour System was not at all a dying cadre. It was declared so by the Government of India O.M. dated 03.01.2020 pursuant to the judgment of the Bombay High Court in Court on its Own Motion (supra). The petitioner had claimed compassionate appointment promptly and his case was found fit by the Compassionate Appointment Committee by the report dated 13.01.2010. This was a time when the Departmental Labour System was not at all a dying cadre. The petitioner's right, if it can be called that, to be considered for compassionate appointment, would, therefore, crystallize on the date of his father's demise and the date when he was found fit to be appointed on compassionate ground by the Compassionate Appointment Committee. The supervening declaration of the Departmental Labour System, under which the petitioner's father was working when he died, would, therefore, not affect the petitioner's right at all. Therefore, the contention put forward on behalf of the Corporation refuting the petitioner's claim for consideration of appointment on compassionate basis on ground that his father belonged to the Departmental Labour System, later on declared a dying cadre, has to be rejected on double count. 22. Therefore, the contention put forward on behalf of the Corporation refuting the petitioner's claim for consideration of appointment on compassionate basis on ground that his father belonged to the Departmental Labour System, later on declared a dying cadre, has to be rejected on double count. 22. Now, the other question that particularly survives for consideration is: If the petitioner's case is to be considered according to the Scheme, that was in force w.e.f. 16th January, 2013, or one that is now in force in accordance with the Corporation Headquarters Circular dated 28.07.2021, which the respondents say would apply to the petitioner's case; or, the petitioner's case is to be considered according to the scheme that was in force when his father died in harness? There is absolutely nothing said by parties about the Scheme that was in force governing compassionate appointment prior to the one dated 16th January, 2013. At the same time, it is not the respondents' case either that there was no scheme for compassionate appointment in force at the time when the petitioner's father died. The question whether the dependent of an employee, who dies in harness, would be entitled to have his case considered according to the scheme or rules in force on the date when the employee died, or according to the scheme or rules that are in force at a later date, say when the application for appointment is moved by the dependent, or when it actually comes up for consideration by the competent Authority, fell for consideration of this Court in Bechan Giri v. Union of India and others, 2023 SCC OnLine All 441. In Bechan Giri (supra), this Court had the guidance of the Supreme Court in Bheemesh alias Bheemappa (supra), which has clinched this issue. It would nevertheless be of profit to refer to Bechan Giri, where I held : “24. The issue whether the claim of a dependent under the dying in harness rules would be considered in accordance with the Rule or the Scheme in force on the date of death of the employee in harness or at a subsequent date, like the one when a dependent makes an application, or the application comes up for consideration, was the subject matter of very elaborate guidance by their Lordships of the Supreme Court in Secretary to Govt. Department of Education (Primary) v. Bheemesh alias Bheemappa, AIR 2022 SC 402 . Department of Education (Primary) v. Bheemesh alias Bheemappa, AIR 2022 SC 402 . The facts giving rise to what was held in Bheemesh alias Bheemappa (supra) may best be recounted in their Lordships' words, which read: “8. Admittedly, the appointment on compassionate grounds in the State of Karnataka is governed by a set of Rules known as Karnataka Civil Services (Appointment on Compassionate grounds) Rules, 1996, issued in exercise of the powers conferred by Section 3(1) read with Section 8 of the Karnataka State Civil Services Act, 1978. The Rules as they stood, on the date on which the sister of the respondent died in harness, did not include an unmarried brother, within the definition of the expression “dependant of a deceased Government servant” under Rule 2(1)(a) of the said Rules vis-a-vis a deceased female unmarried Government servant. But it was only by way of an amendment proposed under a draft Notification dated 20.06.2012 which was given effect under the final Notification bearing No. DPAR 55 SCA 2012, Bangalore dated 11.07.2012 that an unmarried brother of a deceased female unmarried Government servant was included within the definition. There is no dispute about the fact that the sister of the respondent died as an unmarried female Government servant, but on 8.12.2010, before the amendment was made to the Rules.” 25. In answering the issue whether the amended rules that came into force after the death of the government servant involved, would have retrospective operation to enure for the benefit of the dependent unmarried brother of the deceased unmarried female government servant in that case, or the amendment would apply prospectively with effect from the date when it came into force, it was held by their Lordships: “9. To hold that the amendment will have retrospective application, the High Court as well as the Tribunal relied upon a Judgment of the Division Bench of the High Court of Karnataka in State of Karnataka v. Akkamahadevamma, decided on 18.11.2010 in Writ Petition Nos. 20914 of 2010 etc. : (Reported in (2011) 2 AIR Kant R 118). But it should be pointed out at the outset that the Judgment of the High Court in Akkamahadevamma arose out of an amendment to the Karnataka Civil Services (General Recruitment) (57th Amendment) Rules, 2000. 20914 of 2010 etc. : (Reported in (2011) 2 AIR Kant R 118). But it should be pointed out at the outset that the Judgment of the High Court in Akkamahadevamma arose out of an amendment to the Karnataka Civil Services (General Recruitment) (57th Amendment) Rules, 2000. By the Amendment made on 30.03.2010 to the said Rules, grandson, unmarried granddaughter, daughter in law, widowed daughter and widowed granddaughter were included within the definition of the expression “members of the family” under Explanation-2 of Rule 9. But the amendment so made on 30.03.2010 expanding the definition of the expression “members of the family” was triggered by an Order of the Tribunal which held the unamended rule to be unconstitutional. It is in that context that the amendment made on 30.03.2010 to the Rules issued on 23.11.2000 was held by the High Court to be retrospective in nature. It must also be remembered that the expanded definition was with respect to project displaced persons. The right conferred upon a project displaced person stands on a different footing from the entitlement of a person to seek appointment on compassionate grounds. In any case an amendment brought forth, on the basis of a Judgment of a Court or Tribunal, holding the exclusion of certain categories of persons to be violative of Articles 14 and 16 of the Constitution, may receive an interpretation such as the one proposed by the High Court in Akkamahadevamma. But the same may not be applicable to amendments of the nature that we are concerned with in this case. 10. x x x 11. Be that as it may, Sh. Jayanth Muthraj, learned senior counsel appearing for the respondent pleaded that there are two lines of Judgments of this Court, one taking the view that the Rules/Scheme in force on the date of death of the Government servant would govern the field and the other holding that the Rules/ scheme in force on the date of consideration of the claim would govern the field. Unable to reconcile this conflict, a two Member Bench of this Court, by its Order dated 08.02.2019 in State Bank of India v. Sheo Shankar Tewari, has referred the matter for consideration by a larger Bench. Sh. Jayanth Muthraj, learned senior counsel therefore made a request that the present appeal may either be placed along with the reference or await a decision on the above reference. Sh. Jayanth Muthraj, learned senior counsel therefore made a request that the present appeal may either be placed along with the reference or await a decision on the above reference. 12. But we do not consider it necessary to do so. It is no doubt true that there are, as contended by the learned senior Counsel for the respondent, two lines of decisions rendered by Benches of equal strength. But the apparent conflict between those two lines of decisions, was on account of the difference between an amendment by which an existing benefit was withdrawn or diluted and an amendment by which the existing benefit was enhanced. The interpretation adopted by this Court varied depending upon the nature of the amendment. This can be seen by presenting the decisions referred to by the learned senior counsel for the respondent in a tabular column as follows: 26. There is an elaborate tabulated reference to six cases decided by the Supreme Court, where seemingly varying views have been expressed on the issue whether the scheme in force at the time of death of the deceased employee would apply for the purpose of consideration of the dependent's claim for compassionate appointment or the Rule/Scheme in force subsequently enforced, after the death of the government servant, at the time when the application for compassionate appointment is made or comes up for consideration. For brevity's sake, the table set out in Paragraph No. 12 of the report in Bheemesh alias Bheemappa is not being quoted. 27. Two other cases after the tabulated analysis have been considered in Bheemesh alias Bheemappa, where it is observed: “13. Apart from the aforesaid decisions, our attention was also drawn to the decision of the three member Bench in State of Madhya Pradesh v. Amit Shrivas. But that case arose out of a claim made by the dependant of a deceased Government servant, who was originally appointed on a work charged establishment and who later claimed to have become a permanent employee. The Court went into the distinction between an employee with a permanent status and an employee with a regular status. Despite the claim of the dependant that his father had become a permanent employee, this Court held in that case that as per the policy prevailing on the date of death, a work charged/contingency fund employee was not entitled to compassionate appointment. Despite the claim of the dependant that his father had become a permanent employee, this Court held in that case that as per the policy prevailing on the date of death, a work charged/contingency fund employee was not entitled to compassionate appointment. While holding so, the Bench reiterated the opinion in Indian Bank v. Promila. 14. The aforesaid decision in Amit Shrivas (supra) was followed by a two member Bench of this Court in the yet to be reported decision in the State of Madhya Pradesh v. Ashish Awasthi decided on 18.11.2021 : (Reported in AIR OnLine 2021 SC 1047).” 28. After noticing these seemingly divergent opinions on the issue, the Court has proceeded to observe in Bheemesh alias Bheemappa: “15. Let us now come to the reference pending before the larger Bench. In State Bank of India v. Sheo Shankar Tewari (supra), a two member Bench of this Court noted the apparent conflict between State Bank of India v. Raj Kumar and MGB Gramin Bank on the one hand and Canara Bank v. M. Mahesh Kumar on the other hand and referred the matter for the consideration of a larger Bench. The order of reference to a larger Bench was actually dated 8.02.2019. 16. It was only after the aforesaid reference to a larger Bench that this Court decided at least four cases, respectively in (i) Indian Bank v. Promila; (ii) N.C. Santhosh v. State of Karnataka; (iii) State of Madhya Pradesh v. Amit Shrivas; and (iv) State of Madhya Pradesh v. Ashish Awasthi. Out of these four decisions, N.C. Santosh (supra) was by a three member Bench, which actually took note of the reference pending before the larger Bench. 17. Keeping the above in mind, if we critically analyse the way in which this Court has proceeded to interpret the applicability of a new or modified Scheme that comes into force after the death of the employee, we may notice an interesting feature. In cases where the benefit under the existing Scheme was taken away or substituted with a lesser benefit, this Court directed the application of the new Scheme. But in cases where the benefits under an existing Scheme were enlarged by a modified Scheme after the death of the employee, this Court applied only the Scheme that was in force on the date of death of the employee. But in cases where the benefits under an existing Scheme were enlarged by a modified Scheme after the death of the employee, this Court applied only the Scheme that was in force on the date of death of the employee. This is fundamentally due to the fact that compassionate appointment was always considered to be an exception to the normal method of recruitment and perhaps looked down upon with lesser compassion for the individual and greater concern for the rule of law. 18. If compassionate appointment is one of the conditions of service and is made automatic upon the death of an employee in harness without any kind of scrutiny whatsoever, the same would be treated as a vested right in law. But it is not so. Appointment on compassionate grounds is not automatic, but subject to strict scrutiny of various parameters including the financial position of the family, the economic dependence of the family upon the deceased employee and the avocation of the other members of the family. Therefore, no one can claim to have a vested right for appointment on compassionate grounds. This is why some of the decisions which we have tabulated above appear to have interpreted the applicability of revised Schemes differently, leading to conflict of opinion. Though there is a conflict as to whether the Scheme in force on the date of death of the employee would apply or the Scheme in force on the date of consideration of the application of appointment on compassionate grounds would apply, there is certainly no conflict about the underlying concern reflected in the above decisions. Wherever the modified Schemes diluted the existing benefits, this Court applied those benefits, but wherever the modified Scheme granted larger benefits, the old Scheme was made applicable. 19. The important aspect about the conflict of opinion is that it revolves around two dates, namely, (i) date of death of the employee; and (ii) date of consideration of the application of the dependant. Out of these two dates, only one, namely, the date of death alone is a fixed factor that does not change. The next date namely the date of consideration of the claim, is something that depends upon many variables such as the date of filing of application, the date of attaining of majority of the claimant and the date on which the file is put up to the competent authority. The next date namely the date of consideration of the claim, is something that depends upon many variables such as the date of filing of application, the date of attaining of majority of the claimant and the date on which the file is put up to the competent authority. There is no principle of statutory interpretation which permits a decision on the applicability of a rule, to be based upon an indeterminate or variable factor. Let us take for instance a hypothetical case where 2 Government servants die in harness on January 01, 2020. Let us assume that the dependants of these 2 deceased Government servants make applications for appointment on 2 different dates say 29.05.2020 and 02.06.2020 and a modified Scheme comes into force on June 01, 2020. If the date of consideration of the claim is taken to be the criteria for determining whether the modified Scheme applies or not, it will lead to two different results, one in respect of the person who made the application before June 1, 2020 and another in respect of the person who applied after June 01, 2020. In other words, if two employees die on the same date and the dependants of those employees apply on two different dates, one before the modified Scheme comes into force and another thereafter, they will come in for differential treatment if the date of application and the date of consideration of the same are taken to be the deciding factor. A rule of interpretation which produces different results, depending upon what the individuals do or do not do, is inconceivable. This is why, the managements of a few banks, in the cases tabulated above, have introduced a rule in the modified scheme itself, which provides for all pending applications to be decided under the new/modified scheme. Therefore, we are of the considered view that the interpretation as to the applicability of a modified Scheme should depend only upon a determinate and fixed criteria such as the date of death and not an indeterminate and variable factor. 20. Coming to the case on hand, the employee died on 8.12.2010 and the amendment to the Rules was proposed by way of a draft notification on 20.06.2012. The final notification was issued on 11.07.2012. 20. Coming to the case on hand, the employee died on 8.12.2010 and the amendment to the Rules was proposed by way of a draft notification on 20.06.2012. The final notification was issued on 11.07.2012. Merely because the application for appointment was taken up for consideration after the issue of the amendment, the respondent could not have sought the benefit of the amendment. The Judgment of the Division Bench of the Karnataka High Court in Akkamaha-devamma on which the Tribunal as well as the High Court placed reliance, was not applicable to the case of compass-ionate appointments, as the amendment in Akkamahadevamma came as a result of the existing rule being declared to be ultra vires Articles 14 and 16 of the Constitution.” 29. Here, there is no issue that in the Scheme in question, there is no provision at all about consideration of pending applications for compassionate appointment made prior to the introduction of the Scheme w.e.f. 15th March, 2019. This is logically so because the present case is not one where there was apparently an older scheme granting some kind of limited right to a consideration for compassionate appointment in force or a right to an ex-gratia payment, whereunder an application could be made by the dependent of a deceased employee. What appears from the facts here is that prior to 15th March, 2019, there was no scheme at all in the establishment of the respondent Bank in force extending any kind of a right to compassionate appointment, howsoever limited or circumscribed. The right to compassionate appointment upon introduction of the Scheme w.e.f. 15th March, 2019 was a new found right. In the absence, therefore, of any provision in the Scheme for whatever reason to provide rights for dependents of an employee, who died prior to its introduction, asking for compassionate appointment, there could be no right to compassionate appointment. It has already been pointed out that the right to compassionate appointment is not an inherent right, but one that flows from a Rule or Scheme being in force at the time of the death of an employee in harness. There could be more reason to supply in aid of that interpretation. It has already been pointed out that the right to compassionate appointment is not an inherent right, but one that flows from a Rule or Scheme being in force at the time of the death of an employee in harness. There could be more reason to supply in aid of that interpretation. Once it is held that the right to compassionate appointment is not inherent, but the creature of a Rule, the right of whatever kind it is, originates and culminates on the date of death of the employee in harness. There is no fact surviving the death of an employee in harness on the foot of which, a Scheme or Rule for compassionate appointment introduced at a later date, may afford the dependent a right to consideration. Of course, that kind of a right may arise if the Scheme provides for that right on its own terms. Here, the words employed in Clause 8.1, or for that matter Clause 8.2 of the Scheme, do not envisage cognizance of cases of dependents, where death of an employee in harness has taken place before the Scheme was enforced in the Bank. The employment of the expression in Clause 8.1 “normally be considered upto five years from the date of death” refers to the period of five years of death on a date when the Scheme was already in force in the Bank; not five years or a little short of that time antedating the introduction of the Scheme.” 23. Much unlike Bechan Giri, in this case, there was definitely a scheme about which there is no cavil between parties regarding compassionate appointment to dependents of employees of the Corporation, including those working under the Departmental Labour System when the petitioner's father died on 21.01.2009. 24. A perusal of the writ petition shows that the petitioner had made very early and consistent efforts to seek appointment and his case was found fit for appointment by the Compassionate Appointment Committee on 13.01.2010. In the counter affidavit filed on behalf of the Corporation, the contents of Paragraph No.13 of the writ petition have not at all been denied. In Paragraph No.18, all that is said is that these are matter of record. In the counter affidavit filed on behalf of the Corporation, the contents of Paragraph No.13 of the writ petition have not at all been denied. In Paragraph No.18, all that is said is that these are matter of record. In Paragraph No.13 of the writ petition, it is asserted that the economic condition and source of income of the deceased's family and the petitioner are such that they live in hardship, making compassionate appointment for them a necessity. This fact has been endorsed, according to the petitioner, by the report submitted by the Compassionate Appointment Committee. These facts are not in dispute. The respondents say that the petitioner was placed in a roster for compassionate appointment for the Allahabad Depot and placed at Roster Sr. No.14. It is also the respondents' case that the petitioner could be considered for compassionate appointment subject to availability of posts under the 5% vacancies for direct recruitment and set apart for compassionate appointment. This percentage of vacancy is, according to Paragraph No.7(b) of the Scheme, introduced by the Government of India vide Office Memorandum dated 16th January, 2013. 25. To the understanding of this Court, this restriction of 5% out of the vacancies is meant for Group-C posts under the Scheme of 2013, and, in any case, that is not the scheme that would govern consideration of the petitioner's case. His case has to be considered according to the Scheme that was in force when his father died on 21.01.2009. No later scheme would govern consideration of the petitioner's case. On merits, the petitioner's case has already been recommended and found fit for consideration by the Compassionate Appointment Committee, a position admitted to the respondents. 26. At the same time, it is true and that is verily the law that the right to compassionate appointment is not a right strico sensu. An employer can consider many factors before deciding to grant compassionate appointment. The most predominant of these is the economic crisis that the death of the breadwinner has brought on the bereaved family. Here, however, the petitioner's case has been found fit by the designated Committee for consideration, but the petitioner has not been offered an appointment on the pretext: firstly, that there was no vacancy available, and, later on, on ground that now the Departmental Labour System, to which the petitioner's deceased father belonged, has been declared a dying cadre. Here, however, the petitioner's case has been found fit by the designated Committee for consideration, but the petitioner has not been offered an appointment on the pretext: firstly, that there was no vacancy available, and, later on, on ground that now the Departmental Labour System, to which the petitioner's deceased father belonged, has been declared a dying cadre. These considerations we have already dealt with and do not find them to be relevant, particularly, the one about the 'dying cadre'. The question of availability of vacancy would be a matter that would depend on the scheme, as already said, in force in the respondents' establishment on the date of the petitioner's father’s death. 27. In conclusion, it is the respondents, who have to consider the petitioner's case for compassionate appointment, but they have to do so on a correct understanding of his rights in this regard and what the law is, that would govern their decision. This Court has clarified the principles by which the petitioner's case for compassionate appointment has to be considered by the respondents. Since, the respondents, till date, have not taken a decision about the petitioner's claim for compassionate appointment, they ought to do that now; and do that strictly according to law and the guidance in this judgment. 28. In the result, this petition succeeds and is allowed. A mandamus is issued to the respondents to consider the petitioner's case for compassionate appointment within a period of six weeks from the date of receipt of a copy of this judgment, in accordance with law and bearing in mind the guidance here. 29. There shall be no order as to costs. 30. Let a copy of this order be communicated to the Assistant General Manager (Industrial Relation), Food Corporation of India, Lucknow, the Regional Manager, Food Corporation of India, Lucknow and the District Manager, Food Corporation of India, Allahabad by the Registrar (Compliance).