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Tuesday, August 13, 2013

compassionate employment= Father of the respondent who was working as a Class III employee with the appellant Bank died on 19.4.2006 while in harness. The respondent applied for compassionate appointment on 12.5.2006. B. During the pendency of the application filed by the respondent, a new scheme dated 12.6.2006 came into force with effect from 6.10.2006. Clause 14 thereof provides that all applications pending on the date of commencement of the scheme shall be considered for grant of ex-gratia payment to the family instead of compassionate appointment.= A scheme containing an in pari materia clause, as is involved in this case was considered by this Court in State Bank of India & Anr. vs. Raj Kumar (2010) 11 SCC 661. Clause 14 of the said Scheme is verbatim to clause 14 of the scheme involved herein, which reads as under: Date of effect of the scheme and disposal of pending applications: The Scheme will come into force with effect from the date it is approved by the Board of Directors. Applications pending under the Compasionate Appointment Scheme as on the date on which this new Scheme is approved by the Board will be dealt with in accordance with Scheme for payment of ex-gratia lump sum amount provided they fulfill all the terms and conditions of this scheme.”= The Court considered various aspects of service jurisprudence and came to the conclusion that as the appointment on compassionate ground may not be claimed as a matter of right nor an applicant becomes entitled automatically for appointment, rather it depends on various other circumstances i.e. eligibility and financial conditions of the family, etc., the application has to be considered in accordance with the scheme. In case the Scheme does not create any legal right, a candidate cannot claim that his case is to be considered as per the Scheme existing on the date the cause of action had arisen i.e. death of the incumbent on the post. In State Bank of India & Anr. (supra), this Court held that in such a situation, the case under the new Scheme has to be considered. 14. In view of the above position, the reasoning given by the learned Single Judge as well as by the Division Bench is not sustainable in the eyes of law. The appeal is allowed and the impugned judgments of the High Court are set aside. 15. The respondent may apply for consideration of his case under the new Scheme and the appellant shall consider his case strictly in accordance with clause 14 of the said new Scheme within a period of three months from the date of receiving of application. With these observations, appeal stands disposed of.

                           published in       http://judis.nic.in/supremecourt/imgst.aspx?filename=40634                             
   REPORTABLE

                            IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION


                        CIVIL APPEAL NO.6348 OF 2013
                    (Arising out of SLP(C)No.13957/2010)




      MGB GRAMIN BANK                                              Appellant
      (s)


                       VERSUS


      CHAKRAWARTI                                                      SINGH
      Respondent(s)




                                  O R D E R




      1.    Leave granted.
      2.    This appeal has been preferred against the impugned judgment and
      order dated 27.1.2010 passed by the Division Bench of the  High  Court
      of Rajasthan at Jodhpur in D.B.Civil Special  Appeal  (Writ)No.798  of
      2009 upholding the judgment and order  of  the  learned  Single  Judge
      dated 27.7.2009 passed in Writ Petition No.7869 of 2008 by  which  the
      respondent had been directed  to  be  appointed  under  a  scheme  for
      compassionate appointment.
      3.    Facts and circumstances giving rise to this appeal are that:
      A.    Father of the respondent who was working as a Class III employee
      with the appellant Bank died  on  19.4.2006  while  in  harness.   
The
      respondent applied for compassionate appointment on 12.5.2006.
      B.    During the pendency of the application filed by the  respondent, a new  scheme  dated  12.6.2006  came  into  force  with  effect  from 6.10.2006.  Clause 14 thereof provides that all  applications  pending on the date of commencement of the  scheme  shall  be  considered  for grant of ex-gratia payment to  the  family  instead  of  compassionate appointment.
      C.    As the appointment on compassionate ground  was  denied  to  the
      respondent, he preferred the writ petition before the High  Court  and
      the learned Single Judge took the view that as the cause of action had
      arisen prior to the commencement of the  new  scheme,  therefore,  the
      case was to be considered as per the then  existing  scheme  i.e.  the
      1983 Scheme which provided for compassionate appointment and  not  for
      grant of ex-gratia payment.  The Court directed the appellant not only
      to consider the case of appointment of the respondent on compassionate
      grounds but rather directed the appellant to appoint him.
      D.    Aggrieved, the appellant challenged the said order by filing the
      Special Appeal which has been dismissed  vide  impugned  judgment  and
      order dated 27.1.2010 concurring with the judgment and  order  of  the
      learned Single Judge.
            Hence this appeal.
      4.    We have heard learned counsel for the parties.
      5.    Every appointment to public office  must  be  made  by  strictly
      adhering to the mandatory requirements of Articles 14 and  16  of  the
      Constitution. An exception by providing  employment  on  compassionate
      grounds  has  been  carved  out  in  order  to  remove  the  financial
      constraints on the bereaved family, which has lost  its  bread-earner.
      Mere death of a Government employee in harness does  not  entitle  the
      family to claim compassionate employment. The Competent Authority  has
      to examine the financial condition  of  the  family  of  the  deceased
      employee and it is only if it  is  satisfied  that  without  providing
      employment, the family will not be able to meet the crisis, that a job
      is to be offered to the eligible member of the family.  More  so,  the
      person claiming such appointment must possess required eligibility for
      the post. The consistent view that has been taken by the Court is that
      compassionate employment cannot be claimed as a matter of right, as it
      is not a vested right.
           The  Court  should  not  stretch  the   provision   by   liberal
      interpretation beyond permissible limits on humanitarian grounds.
           Such appointment should, therefore, be provided  immediately  to
      redeem the family in distress. It is improper  to  keep  such  a  case
      pending for years.
      6.    In Umesh Kumar Nagpal v State of Haryana & Ors.,  (1994)  4  SCC
      138, this Court has  considered  the  nature  of  the  right  which  a
      dependant can claim while seeking employment on compassionate  ground.
      The Court observed as under:–
           “The whole object of granting compassionate employment is, thus,
           to enable the family to tide over the sudden crisis. The  object
           is not to give a member of such family a post much less  a  post
           for post held by the deceased.…. The exception to the rule  made
           in  favour  of  the  family  of  the  deceased  employee  is  in
           consideration of the services rendered by him and the legitimate
           expectations, and the change in the status and  affairs  of  the
           family engendered by the erstwhile employment which are suddenly
           upturned.…. The only  ground  which  can  justify  compassionate
           employment is the penurious condition of the deceased’s  family.
           The consideration for such employment is not a vested right. The
           object being to enable the family  to  get  over  the  financial
           crisis.”            (Emphasis added)


      7.    An ‘ameliorating relief’ should  not  be  taken  as  opening  an
      alternative mode of recruitment to public employment. Furthermore,  an
      application made at a belated stage  cannot  be  entertained  for  the
      reason that by lapse of time, the purpose of making  such  appointment
      stands evaporated.
      8.    The Courts and the Tribunals cannot confer benediction  impelled
      by sympathetic considerations to make  appointments  on  compassionate
      grounds when the regulation framed in respect thereof  did  not  cover
      and contemplate such appointments.
      9.    In A. Umarani v Registrar, Co-operative Societies  &  Ors.,  AIR
      2004 SC 4504, while dealing with the issue, this Court held that  even
      the Supreme Court should not exercise the  extraordinary  jurisdiction
      under  Article  142  issuing  a  direction   to   give   compassionate
      appointment in contravention of the  provisions  of  the  Scheme/Rules
      etc., as the provisions have to be complied with mandatorily  and  any
      appointment given or ordered to be given in violation  of  the  scheme
      would be illegal.
       10.  The word ‘vested’ is defined  in  Black’s  Law  Dictionary  (6th
      Edition) at page 1563, as ‘vested’, Fixed; accrued; settled; absolute;
      complete. Having the character or given  in  the  rights  of  absolute
      ownership; not contingent; not subject to be defeated by  a  condition
      precedent. Rights are ‘vested’ when right  to  enjoyment,  present  or
      prospective, has become property of some particular person or  persons
      as present interest; mere expectancy of future benefits, or contingent
      interest in property founded on anticipated  continuance  of  existing
      laws, does not constitute vested rights.
      11.   In Webster’s Comprehensive Dictionary (International Edition) at
      page 1397, ‘vested’ is defined as Law held by a tenure subject  to  no
      contingency; complete; established by law as a permanent right; vested
      interest. (Vide: Bibi Sayeeda v State of Bihar AIR 1996  SC  516;  and
      J.S. Yadav v State of Uttar Pradesh (2011) 6 SCC 570)
           Thus, vested right is a right independent of any contingency and
      it cannot be taken away  without  consent  of  the  person  concerned.
      Vested right can arise from contract, statute or by operation of  law.
      Unless an accrued or vested right has been derived  by  a  party,  the
      policy decision/ scheme  could  be  changed.  (Vide:  Kuldip  Singh  v
      Government, NCT Delhi AIR 2006 SC 2652)
      12.   A scheme containing an in pari materia clause, as is involved in
      this case was considered by this Court in State Bank of India  &  Anr.
      vs. Raj Kumar (2010) 11 SCC 661. Clause  14  of  the  said  Scheme  is
      verbatim to clause 14 of the scheme involved herein,  which  reads  as
      under:
           “14.  Date of effect of  the  scheme  and  disposal  of  pending
           applications:


           The Scheme will come into force with effect from the date it  is approved by the Board of Directors.  
Applications pending  under
 the Compasionate Appointment Scheme as on the date on which this new Scheme is approved by  the  Board  will  be  dealt  with  in accordance with Scheme for payment of ex-gratia lump sum  amount provided they fulfill all  the  terms  and  conditions  of  this scheme.”


      13.   The Court considered various aspects  of  service  jurisprudence
      and came to the conclusion that as the  appointment  on  compassionate
      ground may not be  claimed as a matter  of  right   nor  an  applicant
      becomes entitled automatically for appointment, rather it  depends  on
      various other circumstances i.e. eligibility and financial  conditions
      of the  family,  etc.,  the  application  has  to  be   considered  in
      accordance with the scheme.  
In case the Scheme does  not  create  any
      legal right,  a  candidate  cannot  claim  that  his  case  is  to  be
      considered as per the Scheme existing on the date the cause of  action
      had arisen i.e. death of the incumbent on the post. 
 In State Bank  of
      India & Anr. (supra), this Court held that in such  a  situation,  the
      case under the new Scheme has to be considered.
      14.   In view of the  above  position,  the  reasoning  given  by  the
      learned Single  Judge  as  well  as  by  the  Division  Bench  is  not
      sustainable in the eyes  of  law.   The  appeal  is  allowed  and  the
      impugned judgments of the High Court are set aside.
      15.   The respondent may apply for consideration of his case under the
      new Scheme and the appellant  shall  consider  his  case  strictly  in
      accordance with clause 14 of the said new Scheme within  a  period  of
      three months from the date of receiving of application.
            With these observations, appeal stands disposed of.


                                        ………….......................J.
                                        [ DR. B.S. CHAUHAN ]




      NEW DELHI                    ………….......................J.
      AUGUST 7, 2013                    [ S.A. BOBDE ]
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