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 ]
-----------------------
8
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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8
