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Saturday, May 16, 2015

whether the dependant family members of the deceased employee of the appellant-Canara Bank were entitled to seek compassionate appointment on the basis of ‘Dying in Harness Scheme’ which was passed Vide Circular No.154/1993 w.e.f. 8.05.1993. The claim is resisted by the Canara Bank on the ground that the financial condition of the family members of the deceased employees is good and that the Scheme dated 8.05.1993 has been replaced with scheme dated 14.02.2005 (H. O. Circular No.35/2005) scrapping the provision of compassionate appointment and in lieu thereof introduced the new scheme of ex-gratia payment=Referring to Steel Authority of India Ltd.’s case, High Court has rightly held that the grant of family pension or payment of terminal benefits cannot be treated as a substitute for providing employment assistance. The High Court also observed that it is not the case of the bank that the respondents’ family is having any other income to negate their claim for appointment on compassionate ground. 17. Considering the scope of the Scheme ‘Dying in Harness Scheme 1993’ then in force and the facts and circumstances of the case, the High Court rightly directed the appellant-bank to reconsider the claim of the respondent for compassionate appointment in accordance with law and as per the Scheme (1993) then in existence. We do not find any reason warranting interference. 18. So far as the cases in Civil Appeal No.266/2008 and Civil Appeal No.267/2008 are concerned, they are similar and those respondents are similarly placed and the appeals preferred by the bank are liable to be dismissed. The appellant-bank is directed to consider the case of the respondents in Civil Appeal Nos. 266/2008 and 267/2008. 19. In the result, all the appeals preferred by the appellant-bank are dismissed and the appellant bank is directed to consider the case of the respondents for compassionate appointment as per the Scheme which was in vogue at the time of death of the concerned employee. In the facts and circumstances of the case, we make no order as to costs.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                          CIVIL APPEAL NO.260/2008

CANARA BANK & ANR.                                ..Appellants
                                   Versus
M. MAHESH KUMAR                                     ..Respondent

                                    WITH

                          CIVIL APPEAL NO.266/2008

CHAIRMAN AND MANAGING DIRECTOR
CANARA BANK & ORS.                                ..Appellants
                                   Versus
       SANTHA & ANR.                                     ..Respondents

                                     AND

                          CIVIL APPEAL NO.267/2008

CHAIRMAN AND MANAGING DIRECTOR
CANARA BANK & ORS.                                   ..Appellants
                                   Versus
A.K. SHEEBA & ANR.                             ..Respondents
                               J U D G M E N T

R. BANUMATHI, J.

            Common question of law falling for consideration in these  civil
appeals is whether the dependant family members of the deceased employee  of
the appellant-Canara Bank were entitled to  seek  compassionate  appointment
on the basis of  ‘Dying in Harness Scheme’ which was  passed  Vide  Circular
No.154/1993 w.e.f. 8.05.1993.  The claim is resisted by the  Canara Bank  on
the  ground that the financial  condition  of  the  family  members  of  the
deceased employees is good and that the  Scheme  dated  8.05.1993  has  been
replaced with scheme dated 14.02.2005 (H. O. Circular No.35/2005)  scrapping
the provision of compassionate appointment and in  lieu  thereof  introduced
the new scheme of ex-gratia payment.
2.            In Civil Appeal No.260/2008, the Division Bench  of  the  High
Court of Kerala at Ernakulam vide its Order dated 24.08.2006 in Writ  Appeal
No. 1313/2003 (B) titled as Canara Bank & Anr. vs. M. Mahesh Kumar  directed
the bank to reconsider the claim of the claimant-  M.  Mahesh  Kumar  within
two months from the date of order. Further,  due  to  the  pendency  of  SLP
against the decision dated 24.08.2006 in Writ  Appeal  No.1313/2003(B),  the
Division Bench of the High Court  of  Kerala  also  disposed  off  the  Writ
Appeal Nos.2333/2006 and 2335/2006 vide common order  dated  11.12.2006  and
directed the claimants to approach  this  Court.   Assailing  the  aforesaid
three decisions of  the  Division  Bench  of  the  Kerala  High  Court,  the
appellant-bank has filed the instant appeals.
3.          For convenience, Civil Appeal No.260/2008 is  taken  as  a  lead
case.  Brief facts which led to the filing of the appeal  are  as  follows:-
Respondent applied to  the  appellant-bank  on  30.11.1998  claiming  to  be
considered for compassionate appointment on account of death of his  father,
a clerk in  the  appellant-bank  who  while  on  duty  died  on  10.10.1998.
Respondent had applied for  the  compassionate  appointment  on  account  of
‘Dying in Harness Scheme’ with effect from 8.05.1993 then in  vogue  in  the
appellant-bank.  The bank vide its communication dated  30.06.1999  rejected
the claim of the respondent on  the  ground  that  the  respondent’s  family
financial position does not show any indigent  circumstances  warranting  to
provide  employment  on  compassionate  ground.  The  respondent  gave   his
representation to the General Manager  of  the  appellant-bank  and  several
other  representations  for  reconsideration  of  his  claim;  but   nothing
fruitful happened in consideration of respondent’s claim  for  compassionate
appointment.  Thereafter, respondent filed  O.P.  No.21630/2002  (Y)  before
the High Court  of  Kerala,  Ernakulam  seeking  to  quash  the  Ext.P4  and
direction to the appellant-bank to appoint him  as  per  ‘Dying  in  Harness
Scheme’ then in force in the appellant-bank.  The learned  Single  Judge  of
the High Court vide judgment dated 30.05.2003 allowed the Original  Petition
of the respondent herein and quashed Ext.P4 and directed the  appellant-bank
to reconsider the claim of the  respondent  for  appointment  in  accordance
with law within two months from the date of receipt  of  copy  of  judgment.
Appellant-bank assailed the decision of the learned  Single  Judge  in  Writ
Appeal No.1313/2003 (B) and the Division Bench upholding the  order  of  the
Single Judge dismissed the writ appeal.  The appellant-bank has  filed  this
appeal assailing the correctness of the above order.
4.           Learned  counsel  for   the   appellant-bank   contended   that
consideration  for  appointment  on  compassionate  ground  is  contrary  to
Articles 14 and 16 of the Constitution of India and is only  in  the  nature
of concession and, therefore, it does not create a vested  right  in  favour
of the claimant/respondent. It was submitted that ‘Dying in Harness  Scheme’
is a non-statutory scheme and is in the form of a  concession  and  it  does
not create a vested  right  in  favour  of  the  claimant/respondent  to  be
enforced through a writ of mandamus.  It  was  further  submitted  that  the
compassionate appointment  is  justified  when  it  is  granted  to  provide
immediate succour to the deceased-employee and  cannot  be  granted  on  the
passage of time and in all these cases, the concerned  employee  died  about
two decades ago  and,  therefore,  the  High  Court  was  not  justified  in
directing the appellant-bank to reconsider the claim of the  respondent  for
compassionate appointment.  In support of his  contention,  learned  counsel
for the appellant relied upon number of judgments: Umesh  Kumar  Nagpal  vs.
State of Haryana And Ors., (1994) 4 SCC 138; Steel Authority of  India  Ltd.
vs. Madhusudan Das & Ors., (2008) 15 SCC 560; Union of India & Anr.  vs.  B.
Kishore, (2011) 4 SCALE 298;  State  of  Haryana  vs.   Naresh  Kumar  Bali,
(1994) 4 SCC 448; State Bank of India & Ors. vs. Jaspal Kaur, (2007)  9  SCC
571 and State Bank of India & Anr. v. Raj Kumar, (2010) 11 SCC 661.
5.          Per contra, learned counsel for  the  respondent  contends  that
the order was passed by the appellant-bank  without  considering  the  facts
that is size of the respondent’s  family/employment  status  of  his  family
members and sources of  their  income,  liabilities  and  expenses  and  the
decision of the bank rejecting the case of the respondent for  compassionate
appointment  is  arbitrary.    Placing  reliance  upon  Jaspal  Kaur’s  case
(supra) and  other  decisions,  it  was  submitted  that  the  case  of  the
respondent ought to have been considered in the light of the  Scheme  ‘Dying
in Harness Scheme’ which was then in vogue.   The  respondent  averred  that
the payment of terminal benefits cannot be taken as a ground  for  rejecting
employment under the ‘Dying in Harness Scheme’.
6.          We have considered the rival contentions  of  both  the  parties
and perused the impugned judgments and the material on record.
7.          Law with  regard  to  employment  on  compassionate  ground  for
dependant of a deceased employee is well settled.  In Sushma Gosain  &  Ors.
vs. Union of India & Ors.,          (1989) 4 SCC 468,  this  Court  held  as
thus:
“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  ground
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.”

The settled law which  has  been   reiterated  in  various  cases  has  been
succinctly  elucidated  in MGB Gramin Bank vs. Chakrawarti Singh, (2014)  13
SCC 583, wherein it was observed that compassionate  appointment  cannot  be
granted as of  right and the application to be decided as  expeditiously  as
possible and held as under:-
“6. 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 breadearner. 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.”
(Underlining added)

8.          The  above  consistent  view  has  been  reiterated  in  various
judgments by this Court in Umesh Kumar Nagpal vs. State of  Haryana  &  Ors.
(1994) 4 SCC 138, State of Manipur vs.  Md.  Rajaodin,  (2003)  7  SCC  511,
Steel Authority of India Ltd. vs. Madhusudan Das & Ors., (2008) 15  SCC  560
and Sanjay Kumar  vs. State  of   Bihar & Ors., (2000) 7 SCC 192.
9.          Before adverting to the arguments of  the  learned  counsel  for
the parties, it is necessary to  examine  the  scope  of  the  Scheme  dated
8.05.1993 vide Circular No.154/1993 for “compassionate  appointment”.    The
object of the Scheme  is to help dependants of employees of Canara Bank  who
die or become totally and permanently disabled  while  in  harness   and  to
overcome the immediate financial difficulties on account of sudden  stoppage
of the main source of income.  The  employment  under  the  scheme  will  be
considered  only  if  there   are   indigent   circumstances   necessitating
employment to one of the dependants  and  the  deceased  employee’s  service
record is unblemished.  Mere eligibility will not vest a right for  claiming
employment. As per para 3.1, application for  employment  should  be  sought
within 2½ years from the date of death of the employees.  In  para  3.2,  it
is stated that in case of the dependant  of  the  deceased  employee  to  be
offered appointment is a minor, the bank may keep the offer  of  appointment
open till the minor attains the age of majority provided a request  is  made
to the bank by the family of the deceased  employee  and  the  same  may  be
considered subject to rules prevailing at the time of consideration.
10.         During the pendency of the matter  before  the  Division  Bench,
Indian Banks Association (for short ‘IBA’) formulated a scheme based on  the
guidelines issued by the Government of India.  As per the said  Scheme,  the
banks have scrapped the scheme of compassionate appointment  and  introduced
the new scheme of ex-gratia payment in lieu of compassionate appointment  by
H.O. Circular No.35/2005 dated 14.02.2005.    According  to  appellant-Bank,
as  on  date  of  consideration  of  the   application   for   compassionate
appointment, there was no policy to provide compassionate appointment  under
‘Dying in Harness Scheme’.   It is therefore  the  contention  of  the  bank
that the new  scheme  of  2005  applies  to  all  pending  applications  for
appointment  on  compassionate  ground,  respondent’s  case  could  not   be
considered and as per the new Scheme, they are only  entitled  to  ex-gratia
payment in lieu of compassionate appointment.
11.         The main question  falling  for  consideration  is  whether  the
Scheme passed in 2005 providing for ex-gratia payment or the Scheme then  in
vogue in 1993 providing for compassionate appointment is applicable  to  the
respondent.  Appellant-bank  has placed reliance upon the judgment  of  this
Court in Jaspal Kaur’s case (supra) to contend  that  the respondent’s  case
cannot be considered on the basis of  ‘Dying in Harness  Scheme  1993’  when
the new Scheme of 2005 providing for  ex-gratia  payment  had  been  put  in
place.  In Jaspal Kaur’s case  (supra),  Sukhbir  Inder  Singh  employee  of
State Bank of India, Record Assistant  (Cash  &  Accounts)  passed  away  on
1.08.1999.  Widow of the employee applied for compassionate  appointment  in
State Bank of India on 5.02.2000.  On 7.01.2002, the competent authority  of
the bank rejected the application of Jaspal Kaur in view of the Scheme  vis-
a-vis the financial position of the family.  Against that  decision  of  the
competent authority, the respondent filed writ petition  before  the  Punjab
and Haryana High Court which has directed to consider  the  case  of  Jaspal
Kaur by applying the Scheme formulated on  4.08.2005  when  her  application
was made in the year 2000.  In that factual matrix, this Court has  directed
that dispute arising in the year 2000 cannot be decided on the  basis  of  a
Scheme that was put in place much after the  dispute.   By  perusal  of  the
judgment  in  Jaspal  Kaur’s  case,  it  is  apparent  that   the   judgment
specifically states that claim of compassionate appointment under  a  scheme
of a particular year cannot be  decided  in  the  light  of  the  subsequent
scheme that came into force much after the claim.
12.         The same principle was reiterated by this Court in the  case  of
Bhawani Prasad Sonkar vs. Union of India & Ors.,             (2011)  4   SCC
209,  wherein it  was  held  as under :-
“15.  Now, it is well settled that compassionate employment is given  solely
on humanitarian grounds with the sole object to provide immediate relief  to
the employee’s family to tide over the sudden financial  crisis  and  cannot
be claimed as a matter of right. Appointment  based  solely  on  descent  is
inimical to our constitutional  scheme,  and  ordinarily  public  employment
must be strictly on  the  basis  of  open  invitation  of  applications  and
comparative  merit,  in  consonance  with  Articles  14  and   16   of   the
Constitution  of  India.  No  other  mode  of  appointment  is  permissible.
Nevertheless, the concept of compassionate appointment has  been  recognised
as an exception to the general rule, carved out in the interest of  justice,
in certain exigencies, by way of a policy of  an  employer,  which  partakes
the character of the service rules. That being so, it needs little  emphasis
that the scheme or the policy, as the case may be, is binding  both  on  the
employer and the  employee.  Being  an  exception,  the  scheme  has  to  be
strictly construed and confined only to the purpose it seeks to achieve.
……
17.  In Umesh Kumar Nagpal v. State of Haryana,  (1994)  4  SCC  138,  while
emphasising that a compassionate appointment cannot be claimed as  a  matter
of course or in posts above Classes III and  IV,  this  Court  had  observed
that: (SCC p. 140, para 2)
“2. …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. What is further, mere death of an employee  in  harness  does  not
entitle his family to such source  of  livelihood.  The  Government  or  the
public authority concerned has to examine the  financial  condition  of  the
family of the deceased, and it is only if it is satisfied, that but for  the
provision of 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. The  posts
in Classes III and  IV  are  the  lowest  posts  in  non-manual  and  manual
categories and hence they alone can be  offered  on  compassionate  grounds,
the object being to relieve the family, of the financial destitution and  to
help it get over the emergency. The provision of employment in  such  lowest
posts by making an exception to the rule is justifiable and valid  since  it
is not discriminatory. The favourable treatment given to such  dependant  of
the deceased employee in such posts has a rational  nexus  with  the  object
sought to be achieved viz. relief against destitution. No  other  posts  are
expected or required to be given by the public authorities for the  purpose.
It must be remembered in this  connection  that  as  against  the  destitute
family of the deceased there  are  millions  of  other  families  which  are
equally, if not more destitute. The  exception  to  the  [pic]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.”
……..
20. Thus, while considering a claim for employment on compassionate  ground,
the following factors have to be borne in mind:

(i) Compassionate employment cannot be made  in  the  absence  of  rules  or
regulations issued by the Government or a public authority. The  request  is
to be considered strictly in accordance with the governing  scheme,  and  no
discretion as  such  is  left  with  any  authority  to  make  compassionate
appointment dehors the scheme.
(ii) An application for compassionate employment must be  preferred  without
undue delay and has to be considered within a reasonable period of time.
(iii) An appointment on compassionate ground is to meet  the  sudden  crisis
occurring in the family on account of the death or medical  invalidation  of
the  breadwinner  while  in  service.  Therefore,  compassionate  employment
cannot be granted as a matter of course by way of largesse  irrespective  of
the financial condition of the deceased/incapacitated employee’s  family  at
the time of his death or incapacity, as the case may be.
(iv) Compassionate employment is permissible only to one of  the  dependants
of  the  deceased/incapacitated  employee  viz.  parents,  spouse,  son   or
daughter and not to all relatives, and such appointments should be  only  to
the lowest category that is Class III and IV posts.”
(Underlining added)


13.         Applying these principles to the  case  in  hand,  as  discussed
earlier, respondent’s father died on 10.10.1998 while he was  serving  as  a
clerk  in  the  appellant-bank  and  the  respondent  applied   timely   for
compassionate appointment as per the scheme ‘Dying in Harness Scheme’  dated
8.05.1993 which was in force at that time.  The appellant-bank rejected  the
respondent’s claim on  30.06.1999  recording  that  there  are  no  indigent
circumstances  for  providing  employment  to  the  respondent.   Again   on
7.11.2001, the appellant-bank sought for particulars in connection with  the
issue of respondent’s employment.  In the light of the principles laid  down
in  the  above  decisions,  the  cause  of  action  to  be  considered   for
compassionate appointment  arose  when  the  Circular            No.154/1993
dated 8.05.1993 was in force. Thus, as per the judgment referred  in  Jaspal
Kaur’s case, the claim cannot be decided as per 2005  Scheme  providing  for
ex-gratia payment.  The Circular dated 14.2.2005 being an administrative  or
executive order cannot have retrospective effect so  as  to  take  away  the
right accrued to the respondent as per circular of 1993.
14.          It is also pertinent to note that 2005  Scheme  providing  only
for  ex-gratia  payment  in  lieu  of   compassionate   appointment   stands
superseded by the Scheme of 2014 which has revived the scheme providing  for
compassionate appointment.  As on date,  now  the  scheme  in  force  is  to
provide compassionate appointment. Under these circumstances, the appellant-
bank is not justified in contending that the application  for  compassionate
appointment of the respondent cannot be considered in  view  of  passage  of
time.
15.         Insofar as the contention of the appellant-bank that  since  the
respondent’s  family  is  getting  family  pension  and  also  obtained  the
terminal benefits, in our view, is of  no  consequence  in  considering  the
application for compassionate appointment.  Clause 3.2 of 1993  Scheme  says
that in case the dependant of deceased employee to  be  offered  appointment
is a minor, the bank may keep the offer of appointment open till  the  minor
attains the age of majority.  This would indicate that granting of  terminal
benefits is of no consequence because even if terminal benefit is given,  if
the applicant is a minor, the bank would keep the appointment open till  the
minor attains the majority.
16.         In Balbir Kaur & Anr. vs. Steel Authority of India Ltd. &  Ors.,
(2000) 6 SCC 493, while dealing with the application made by the  widow  for
employment on compassionate ground applicable  to  the  Steel  Authority  of
India, contention raised was that since she is entitled to get  the  benefit
under Family Benefit Scheme assuring monthly payment to the  family  of  the
deceased employee, the  request  for  compassionate  appointment  cannot  be
acceded to.  Rejecting that contention in paragraph (13),  this  Court  held
as under:-

“13. ….But in our view this Family Benefit  Scheme  cannot  in  any  way  be
equated with the benefit of compassionate appointments. The sudden  jerk  in
the family by reason of the death of the breadearner can  only  be  absorbed
by some lump-sum amount being made available to the family — this is  rather
unfortunate but this is a reality. The feeling of security drops to zero  on
the death of the breadearner and insecurity thereafter reigns and it  is  at
that  juncture  if  some  lump-sum  amount  is   made   available   with   a
compassionate appointment, the grief-stricken family may  find  some  solace
to the mental agony and manage its affairs in the normal course  of  events.
It  is  not  that  monetary  benefit  would  be  the  replacement   of   the
breadearner,  but  that  would  undoubtedly  bring  some   solace   to   the
situation.”


Referring to Steel Authority of India Ltd.’s case, High  Court  has  rightly
held that the grant of  family  pension  or  payment  of  terminal  benefits
cannot be treated as a substitute for providing employment  assistance.  The
High Court also observed that it is not  the  case  of  the  bank  that  the
respondents’ family is having any other income to  negate  their  claim  for
appointment on compassionate ground.
17.         Considering the scope of the Scheme  ‘Dying  in  Harness  Scheme
1993’ then in force and the facts and circumstances of the  case,  the  High
Court rightly directed the appellant-bank to reconsider  the  claim  of  the
respondent for compassionate appointment in accordance with law and  as  per
the Scheme (1993) then in existence.  We do not find any  reason  warranting
interference.
18.         So far as the  cases  in  Civil  Appeal  No.266/2008  and  Civil
Appeal No.267/2008 are concerned, they are  similar  and  those  respondents
are similarly placed and the appeals preferred by the bank are liable to  be
dismissed. The appellant-bank is  directed  to  consider  the  case  of  the
respondents in Civil Appeal Nos. 266/2008 and 267/2008.
19.         In the result, all the appeals preferred by  the  appellant-bank
are dismissed and the appellant bank is directed to  consider  the  case  of
the respondents for compassionate appointment as per the  Scheme  which  was
in vogue at the time of death of the concerned employee.  In the  facts  and
circumstances of the case,  we make no order as to costs.


                                                                 ………………………J.
                                (T.S. Thakur)


                                                                 ………………………J.
                                 (R. Banumathi)
New Delhi;
May 15, 2015

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