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2024 DIGILAW 9 (AP)

B. Nagalakshmi v. Branch Manager

2024-01-02

VENKATA JYOTHIRMAI PRATAPA

body2024
JUDGMENT 1. This Writ Petition is filed under Article 226 of the Constitution of India seeking a direction in the nature of Mandamus declaring the inaction on the part of the Respondent Nos., 1 to 4 in not considering the application of petitioner dtd. 29/1/2015 and the representation dtd. 18/4/2018 and consequently, seeking to direct the Respondent Nos.1 to 4 to consider the petitioner for appointment in a suitable post in the State Bank of India on compassionate grounds, without insisting the signature of Respondent Nos.5 and 6 in Annexure-II as dependents to the deceased. 2. The case of the Petitioner in brief is as follows: 2.1. One B.N.K.Krishna Kishore, who joined in the service as Assistant Manager in Respondent Bank, Kakinada, on 20/8/2007, died on 29/10/2014, leaving behind the Petitioner/his wife, minor son, aged about six years, besides his parents/Respondent Nos.5 and 6. It is the Petitioner's case that, during the life time of her husband, his parents used to harass her and she has no cordial relations with Respondent Nos., 5 and 6. 2.2. On 29/1/2015, Petitioner has applied to Respondent Nos.1 to 4 seeking a suitable job to her on compassionate grounds. Respondent No.5 got issued a legal notice dtd. 2/12/2014 to Respondent Nos.1 and 2 as well as to the petitioner stating that the petitioner is not entitled to withdraw all the retirement benefits. Petitioner also issued a legal notice on 10/4/2015 to Respondent Nos.1 and 2, in the process of her application for compassionate appointment. 2.3. A series of litigation followed right from claims before the District Consumer Disputes Redressal Forum to the civil court and Petitioner as well as Respondent No.5 received their respective shares out of the retirement benefits of the deceased. 2.4. Alongwith her application for compassionate appointment, Petitioner annexed an undertaking, vide Annexure -III dtd. 2/5/2017 to maintain the dependents of the deceased i.e., her son and her parents-in-law. Thereafter, she received a letter dtd. 30/11/2017 from Respondent No.1 asking her to furnish Annexure-II, which must be signed by all the dependents. 2.5. It is the Petitioner's case that Respondent Nos., 5 and 6 are not inclined to sign the Annexure-II owing to their pre-existing matrimonial disputes. Thereafter, she received a letter dtd. 30/11/2017 from Respondent No.1 asking her to furnish Annexure-II, which must be signed by all the dependents. 2.5. It is the Petitioner's case that Respondent Nos., 5 and 6 are not inclined to sign the Annexure-II owing to their pre-existing matrimonial disputes. It is stated that she alone is eligible legal representative to get appointment on compassionate grounds.It is averred that Respondent Nos.5 and 6 have certain ancestral properties, while she with her minor son are living at their mercy. It is also placed that Petitioner by a representation dtd. 8/4/2020 to Respondent Nos.1 to 4, stated that after getting appointment on compassionate grounds, would pay a part of her salary to the Respondent Nos.5 and 6. 2.6. Petitioner contends that the format of Annexure-II demanding her to get signatures from her in-laws, with whom she has no cordial relations, compromises on her dignity. It is also stated that non-consideration of her representation is illegal and violative of Articles 14 and 21 of the Constitution of India. 3. Version of the Respondents in Counters 3.1. A counter Affidavit is filed by Respondent Nos.1 to 4 with the following averment at para 3 extracted hereunder; "3. It is submitted that as per the New Policy of the State Bank of India, the Bank is not entertaining any appointments on compassionate grounds as matter of policy, but, if any person otherwise eligible and needy, we are providing some ex-gratia and not employment. However, as per our Circular instructions, in exceptional following cases, we are providing appointment on compassionate grounds: i) Employee dying while performing is official duty, as a result of violence, terrorism, robbery or dacoity. ii) Employee dying within five years of his first appointment or before reaching the aged of 30 years, whichever is later, leaving a dependant spouse and/or minor children." 3.2. Further, it is also stated that a person claiming employment under compassionate grounds, is mandatorily bound to submit Annexures-II and III along with the application.It is also averred that the application of the Petitioner could not be considered as she failed to append all the Annexures to the application. It is stated that instead of settling the disputes inter se within the family, the Respondent Nos.1 to 4 are dragged into a litigation. It is stated that instead of settling the disputes inter se within the family, the Respondent Nos.1 to 4 are dragged into a litigation. It is also averred that there are no mala fides on their part in not considering her for appointment and they have made payments according to the decree passed in the suit O.S.No.780/2014 filed by the Petitioner. 3.3. It is further stated that the Respondents have not examined the case of the Petitioner to see if it falls under exceptional case, vide the Scheme or not. Vide a letter dtd. 15/9/2018, respondents have requested the petitioner to submit Annexure-II, to which petitioner responded vide a letter dtd. 15/10/2018 that she is not in good terms with her in laws, and has requested to process her application. It is stated even before the request could be examined, the present W.P. is prematurely filed. It is also averred that the Petitioner is an eligible legal heir for appointment, but the appointment should be made in accordance with the Rules, which require her to submit Annexure-II as well. Finally, it was stated that the letter of the Petitioner dtd. 15/10/2018 is pending consideration for a decision to be taken by the Controlling Authority of the Bank. Arguments by the Counsels 4. Heard Sri Rayaprolu Srikanth, learned counsel for the petitioner; Sri K.B.Ramanna Dora, learned Standing Counsel for Respondent Nos.1 to 4- Bank; Sri K.Lakshmana Raju, learned counsel for Respondent No.6. None represented for Respondent No.7, who is a proforma party. It is represented that Respondent No.5 died during the pendency of the suit. 5. Learned counsel for the petitioner would submit that the petitioner is the wife and the minor boy, aged about six years of the deceased respectively, without any means of livelihood. Admittedly, because of the disputes that arose between the petitioner with the parents-in-law/Respondent Nos.5 and 6, she used to stay at her parents' house along with the minor boy. It is urged that the Petitioner has been running from pillar to post to realise the monetary benefits of her deceased husband, by filing a consumer application and thereafter a civil suit. It is urged that the Petitioner has been running from pillar to post to realise the monetary benefits of her deceased husband, by filing a consumer application and thereafter a civil suit. It is submitted that the Petitioner has duly submitted the application seeking employment under compassionate grounds, within the stipulated time, vide rules, but she could not get No Objection Certificate in Annexure-II from Respondent Nos.5 and 6, as they are reluctant to co-operate to sign. 5.1. Learned Counsel stated that in view of these reasons, when the Petitioner expressed her inability to submit Annexure-II, Respondent Nos.1 to 4 did not consider her case. It is also submitted that the Petitioner also addressed a letter stating her willingness to pay part of the salary to Respondent Nos.5 and 6. It is thus urged that in view of the circumstance, Respondent Nos.1 to 4 ought to have considered the case of the Petitioner seeking it as an exceptional one to protect the interests of all the dependants of the deceased employee. 6. Per contra, learned standing counsel for Respondent Nos.1 to 4 would submit that the Respondents could not process the application of the petitioner since, it is an incomplete one as per bank rules. It is stated that in the absence of the NOC from the other dependants of the deceased, the bank cannot process the representation of the petitioner. It is also submitted that when the representation of the petitioner is pending for consideration, the petitioner has approached this Court by filing the present writ petition, which is premature and is liable to be dismissed. However, in view of the case, having argued on the above lines, learned counsel would submit that if an appropriate order is passed by this Court, the Respondent Bank would obey the same. 7. Learned counsel for Respondent No.6 would submit that the Writ Petition is a premature one and Respondent No.6 being the father of the deceased is dependent and he has no other alternative for his livelihood and as per the guidelines of the Bank, the petitioner has to submit the application along with Annexure-II, and that when her application is incomplete, Respondent Nos.1 to 4 could not process it. Therefore, prays for dismissal of the W.P. 8. Therefore, prays for dismissal of the W.P. 8. The question that arises for determination in this W.P. is Whether a direction can be given by this Court to consider the case of Petitioner for employment on compassionate grounds sans submission of Annexure-II or not? Determination by the Court 9. From the sorrowful time of death of a loved one, solace can never be found in ease for the immediate family members. Though memories seldom fade, finances vanish, at times, in a great speed.It is not uncommon to see how a familyturns upside down, in the event of the death of an earning member, both emotionally and financially. With a humanitarian consideration to enable the immediate family members to get over the sudden financial crisis and to make ends meet, the scheme of compassionate employment came into existence. The sole intention of this scheme is to see that the dependants of the deceased are not financially crippled without any means to livelihood. 10. It is a settled principle of law that compassionate employment is not a source of recruitment and is also not a vested right. The financial condition of the deceased family, at the time of death, should be the primary consideration in determining a claim for compassionate appointment. 11. In State of West Bengal v. Debebrata Tiwari and others, 2023 LiveLaw (SC) 175. while hearing an Appeal from an order that directed consideration of claims of compassionate appointment, the Hon'ble Supreme Court outlined the rationale behind the policy as follows; "7. The majesty of death is that it is a great leveller for, it makes no distinction between the young and the old or the rich and the poor. Death being as a consequence of birth at some point of time is inevitable for every being. Thus, while death is certain, its timing is uncertain. Further, a deceased employee does not always leave behind valuable assets; he may at times leave behind poverty to be faced by the immediate members of his family. Therefore, what should be done to ensure that death of an individual does not mean economic death for his family? The State's obligation in this regard, confined to its employees who die in harness, has given rise to schemes and rules providing for compassionate appointment of an eligible member of his family as an instance of providing immediate succour to such a family. The State's obligation in this regard, confined to its employees who die in harness, has given rise to schemes and rules providing for compassionate appointment of an eligible member of his family as an instance of providing immediate succour to such a family. Support for such a provision has been derived from the provisions of Part IV of the Constitution of India, i.e., Article 39 of the Directive Principles of State Policy." (Emphasis supplied) 12. Their Lordships while summarizing the law on the subject at para 7, observed that the claims for compassionate appointment should be investigated immediately and any delay in consideration of the same would frustrate the object of the scheme. Ultimately, in that matter, the Hon'ble Supreme Court allowed the appeal and set aside the direction to consider employment on compassionate grounds as there was no such policy in the concerned department and because the claimant approached the Court several years, after filing the claim. 13. In State of H.P. v. Parkash Chand, (2019) 4 SCC 285 . the Hon'ble Apex Court has outlined the scope of interference that could be made by the High Court under Article 226 in relation to the compassionate appointments in the following terms; "10. In the exercise of judicial review under Article 226 of the Constitution, it was not open to the High Court to rewrite the terms of the Policy. It is well settled that compassionate appointment is not a matter of right, but must be governed by the terms on which the State lays down the policy of offering employment assistance to a member of the family of a deceased government employee. It is well settled that compassionate appointment is not a matter of right, but must be governed by the terms on which the State lays down the policy of offering employment assistance to a member of the family of a deceased government employee. [Umesh Kumar Nagpal v. State of Haryana [Umesh Kumar Nagpal v. State of Haryana, (1994) 4 SCC 138 : 1994 SCC (L&S) 930], SBI v. Kunti Tiwary [SBI v. Kunti Tiwary, (2004) 7 SCC 271 : 2004 SCC (L&S) 943], Punjab National Bank v. Ashwini Kumar Taneja [Punjab National Bank v. Ashwini Kumar Taneja, (2004) 7 SCC 265 : 2004 SCC (L&S) 938], SBI v. Somvir Singh [SBI v. Somvir Singh, (2007) 4 SCC 778 : (2007) 2 SCC (L&S) 92], Mumtaz Yunus Mulani v. State of Maharashtra [Mumtaz Yunus Mulani v. State of Maharashtra, (2008) 11 SCC 384 : (2008) 2 SCC (L&S) 1077], Union of India v. Shashank Goswami [Union of India v. Shashank Goswami, (2012) 11 SCC 307 : (2013) 1 SCC (L&S) 51], SBI v. Surya Narain Tripathi [SBI v. Surya Narain Tripathi, (2014) 15 SCC 739 : (2015) 3 SCC (L&S) 689] and Canara Bank v. M. Mahesh Kumar [Canara Bank v. M. Mahesh Kumar, (2015) 7 SCC 412 : (2015) 2 SCC (L&S) 539] .]" (Emphasis supplied) 14. Thus, it would emerge from the decision supra that the compassionate appointments must adhere to the stipulations made in the policy. In other words, if a department/authority is shorn of a policy providing compassionate appointment, no such appointment could be made and in cases, where such rules exist, compliance is necessary. 15. In the instant case, there is no dispute on the status of the petitioner as wife of the deceased employee of the bank. It is also not in dispute that the deceased died on 29/10/2014 vide copy of the death certificate filed by the petitioner. Respondent Nos.1 to 4 also did not dispute the application and representation submitted by the petitioner. The fact remains that even during the life time of the deceased employee, his wife used to stay at her parents' house, due to disputes with her in-laws. It is also an undisputed fact that out of Respondent Nos.5 and 6, the petitioner and her minor son, the petitioner is only the eligible person for getting a compassionate appointment. 16. The fact remains that even during the life time of the deceased employee, his wife used to stay at her parents' house, due to disputes with her in-laws. It is also an undisputed fact that out of Respondent Nos.5 and 6, the petitioner and her minor son, the petitioner is only the eligible person for getting a compassionate appointment. 16. It is trite to mention that the Respondent No.5 died during pendency of the present petition. The disputes between the wife and husband and with his family members in a matrimonial home are not uncommon. The Respondents could not process her application only on the ground that it is incomplete for want of Annexure-II. The petitioner made it very clear that because of noncooperation of Respondent Nos.5 and 6, she could not fulfill the requirement of Annexure-II and that she is ready to pay part of her salary towards their maintenance. 17. Vide the judicial precedents supra, there is some force in the arguments of learned counsel for Respondent Nos.1 to 4 that since Annexure-II is mandatory, in its absence, the bank could not process her application. One cannot claim an employment under compassionate grounds as a matter of right and as a rule, any post in the public employment should be filled up strictly, on the basis of the open notification and merit. An exception to this general rule, in the interest of justice, is the appointment on compassionate grounds. The present case on hand, is one such exception, where a claim is made by the dependant of the deceased employee. The Hon'ble Supreme Court explained this principle in N.C. Santhosh v. State of Karnataka and Others, (2020) 7 SCC 617 . at para-18 as under: "18. In the most recent judgment in State of H.P. V. Shashi Kumar [ (2019) 3 SCC 653 : (2019) 1 SCC (L&S) 542 the earlier decisions governing the principles of compassionate appointment were discussed and analysed. Speaking for the Bench, Dr.D.Y.Chandrachud, J. reiterated that appointment to any public post in the service of the State has to be made on the basis of principles in accord with Articles 14 and 16 of the Constitution and compassionate appointment is an exception to the general rule. Speaking for the Bench, Dr.D.Y.Chandrachud, J. reiterated that appointment to any public post in the service of the State has to be made on the basis of principles in accord with Articles 14 and 16 of the Constitution and compassionate appointment is an exception to the general rule. The dependants of a deceased government employee are made eligible by virtue of the policy on compassionate appointment and they must fulfil the norms laid down by the State's policy." (emphasis supplied) 18. A provision is made under the Rules applicable to provide employment on compassionate grounds to any one of the dependants' of the deceased employee, who may be eligible as per the stipulations. It is apt to say that mere death of an employee in harness, does not automatically entitle one of his family members to have such employment.Doubtlessly, seeking such an employment is not a vested right of the dependants of the deceased. It is imperative to first consider thefinancial condition of the parties concerned. The object of compassionate appointment is to see that the immediate financial dearth in family due to the death is filled up. For this reason, unreasonable delay in compassionate appointments is undesirable. On the aspect of delay in providing appointment on compassionate grounds, in addition to the discussion on State of West Bengal v. Debebrata Tiwari and others supra, the decision of the Hon'ble Apex Court in Smt.Sushma Gosain and Others V. Union of India and Others, (1989) 4 SCC 468 . is also an important reference. Para 9 of the same reads: "9. We consider that it must be stated unequivocally that in all claims for appointment on compassionate grounds, there should not be any delay in appointment. The purpose of providing appointment on compassionate grounds is to mitigate the hardship due to death of the bread earner in the family. Such appointment should, therefore, be provided immediately to redeem the family in distress. It is improper to keep such case pending for years. If there is no suitable post for appointment supernumerary post should be created to accommodate the applicant." (emphasis supplied) 19. Similarly, in Malaya Manda Sethy v. State of Orissa and Others, 2022 SCC OnLine SC 684. the Hon'ble Apex Court clearly observed at paragraphs 15 to 18 as; "15. It is improper to keep such case pending for years. If there is no suitable post for appointment supernumerary post should be created to accommodate the applicant." (emphasis supplied) 19. Similarly, in Malaya Manda Sethy v. State of Orissa and Others, 2022 SCC OnLine SC 684. the Hon'ble Apex Court clearly observed at paragraphs 15 to 18 as; "15. In view of the above discussion and for the reasons stated above, the impugned judgment and order passed by the High Court is hereby quashed and set aside. The Respondents are directed to consider the case of the appellant for appointment on compassionate grounds under the 1990 Rules as per his original application made in July, 2010 and if he is otherwise found eligible to appoint him on the post of Junior Clerk. The aforesaid exercise shall be completed within a period of four weeks from today. However, it is observed that the appellant shall be entitled to all the benefits from the date of his appointment only. The present appeal is accordingly allowed. However, in the facts and circumstances of the case, there shall be no order as to costs. 16. Before parting with the present order, we are constrained to observe that considering the object and purpose of appointment on compassionate grounds, i.e., a family of a deceased employee may be placed in a position of financial hardship upon the untimely death of the employee while in service and the basis or policy is immediacy in rendering of financial assistance to the family of the deceased consequent upon his untimely death, the authorities must consider and decide such applications for appointment on compassionate grounds as per the policy prevalent, at the earliest, but not beyond a period of six months from the date of submission of such completed applications. 17. We are constrained to direct as above as we have found that in several cases, applications for appointment on compassionate grounds are not attended in time and are kept pending for years together. As a result, the applicants in several cases have to approach the concerned High Courts seeking a writ of Mandamus for the consideration of their applications. Even after such a direction is issued, frivolous or vexatious reasons are given for rejecting the applications. As a result, the applicants in several cases have to approach the concerned High Courts seeking a writ of Mandamus for the consideration of their applications. Even after such a direction is issued, frivolous or vexatious reasons are given for rejecting the applications. Once again, the applicants have to challenge the order of rejection before the High Court which leads to pendency of litigation and passage of time, leaving the family of the employee who died in harness in the lurch and in financial difficulty. Further, for reasons best known to the authorities and on irrelevant considerations, applications made for compassionate appointment are rejected. After several years or are not considered at all as in the instant case. 18.If the object and purpose of appointment on compassionate grounds as envisaged under the relevant policies or the rules have to be achieved then it is just and necessary that such applications are considered well in time and not in a tardy way. We have come across cases where for nearlytwo decades the controversy regarding the application made for compassionate appointment is not resolved. This consequently leads to the frustration of the very policy of granting compassionate appointment on the death of the employee while in service. We have, therefore, directed that such applications must be considered at an earliest point of time. The consideration must be fair, reasonable and based on relevant consideration. The application cannot be rejected on the basis of frivolous and for reasons extraneous to the facts of the case. Then and then only the object and purpose of appointment on compassionate grounds can be achieved." (emphasis supplied) 20. When it is the contention of the Respondent Nos., 1 to 4 that the application cannot be processed for the want of Annexure-II, the argument that the W.P. is filed at a pre-matured stage cannot be countenanced. The deceased died in the year 2014. Petitioner filed the application in the year 2015 seeking to consider her for employment on compassionate grounds. She has also addressed a letter to the bank in clear terms expressing her inability to comply with the Annexure-II because of non-cooperation of other dependants of her husband. This means that the application could not even be processed for about 10 years. This is not a case where there are other contesting family members as dependants, seeking appointment. She has also addressed a letter to the bank in clear terms expressing her inability to comply with the Annexure-II because of non-cooperation of other dependants of her husband. This means that the application could not even be processed for about 10 years. This is not a case where there are other contesting family members as dependants, seeking appointment. In fact, the Petitioner has also undertaken to take care of her in-laws from a part of her salary. Article 21 of the Constitution of India in its widest spirit includes right to livelihood and right to live with dignity. This Court is aware of its limitations that the policy cannot be re-written, however in view of the facts and circumstances of the case, a hyper-technical view cannot be taken that would ultimately frustrate the object of employment on compassionate grounds. Thus, this Court feels that it is apposite to direct the Respondent-Bank to consider the application of the petitioner for compassionate appointment without insisting for Annexure-II treating it as an exceptional case, as expeditiously as possible within a period of (3) three months from the date of receipt of a copy of this Order. 21. Accordingly, the Writ Petition is disposed of. No costs. As a sequel, pending applications, if any, shall stand closed.