HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA
WRIT PETITION No. 32396 OF 2011
ORDER:
Proceedings No. F/5/513, dated 12.12.2003 of the 1st respondent is assailed in this Writ Petition on the ground that they are contrary to the very scheme of appointment on compassionate grounds. A consequent direction is sought to the respondents to consider the representation dated 05.11.2001 afresh and appoint his son viz. Ganesh as Sweeper-cum-Peon or any other suitable post.
2. Petitioner's case is, during the course of employment, on 28.11.2000, he met with an accident and his right leg was removed. On the advice and assurance of the respondent officials, he took voluntary retirement on 31.03.2001 though he had left with five years of service. Petitioner made a representation to the 3rd respondent on 05.11.2001 which was forwarded to the 1st respondent on 07.11.2001 but the same was kept pending for more than three years. Then, petitioner was constrained to file Writ Petition No. 17705 of 2004, wherein the respondents filed the counter stating that the said representation was rejected on 12.12.2003 on the ground that the request cannot be considered on medical grounds as the Scheme is applicable only to the employees who are compelled to leave the bank service 2 before attaining the age of 55 years. The Writ Petition was dismissed with liberty to challenge the rejection order dated 12.12.2003.
3. The Chief Manager of the respondent bank filed the counter stating that petitioner applied for voluntary retirement on 25.01.2001 under SBH (Employees) Voluntary Retirement Scheme, 2001 which contains a declaration that 'I undertake that on account of my voluntary retirement from the bank under the Scheme, I have no right to claim for compassionate appointment'.
The Government of India vide letter dated 28.11.1996 directed the bank that the scheme of compassionate appointment shall be in consonance w0ith the law laid down by the Hon'ble Supreme Court in Umesh Kumar Nagpal v. State of Haryana {(1994) 4 SCC 138} and also in Hariyana State Electricity Board v. Naresh Tanwar (CA No. 3216-17/06). According to the Scheme, the case of the employee, who had to leave the bank's service on medical grounds on or after 01.01.1979 can be considered before he / she attains the age of 55 years due to incapacitization by accidents or specific ailments like paralysis, cancer and blindness, etcetera.
It is stated that petitioner was aged about 55 years three months and 15 days as on the date of his retirement, hence, his dependants are not eligible to seek appointment on 3 compassionate grounds. Even otherwise, as the petitioner took retirement under VRS Scheme, 2001, his dependants are not entitled to seek appointment on compassionate grounds as his retirement was not on medical grounds. In fact, petitioner received Rs.4,78,882/- as ex-graia, hence, he is estopped from making any claim for compassionate appointment on medical grounds. If he retired on medical grounds, he would not have been paid ex-gratia amount. The respondents denied that they assured petitioner of providing appointment to his son.
4. Learned counsel for the petitioner submits that the action of the respondents dated 12.12.2003 was contrary to the very Scheme itself. According to him, though petitioner had five more years service by that time, on the promise made by the respondents only, he took voluntary retirement. Petitioner gave representation dated 05.11.2001, hence, his representation may be considered afresh by setting aside the order dated 12.12.2003, submits the learned counsel.
5. Learned Standing Counsel for the bank submits that VRS Scheme, 2001 was introduced for rationalisation of staff within the bank. Under the said scheme, the bank paid ex-gratia by calculating the amount as per the terms of the Scheme duly taking into consideration the length of service rendered and left over service of each employee whose Application for VRS is 4 approved. Hence, the question of giving assurance to the petitioner does not arise.
Learned counsel submits that there is no right of whatsoever nature to claim compassionate appointment on any ground other than the one, if any conferred by the employer by way of Scheme or instructions, as the case may be. To fortify the said contention, reliance is placed on the judgment of the Hon'ble Apex Court in State Bank of India v. Somvir Singh 1. He further submits that compassionate appointment cannot be extended to legal heirs of retiring / superannuating employees since that would be contrary to object of granting compassionate appointment and hence, would be violative of Articles 14 and 16 of the Constitution. He relies on the judgment of the Supreme Court in Ahmednagar Mahanagar Palika v Ahmednagar Mahanagar Palika Kamgar Union 2.
6. From a perusal of the material on record, it is clear that the petitioner rests his case on the footing that the respondents gave assurance of providing compassionate appointment to his son. Whereas the respondent along with the counter filed the proforma Application for voluntary retirement under State Bank of Hyderabad (Employees') Voluntary Retirement Scheme, 2001 wherein there is a declaration that 'I undertake 1 (2007) 4 SCC 778 2 (2022) 10 Supreme Court Cases 172 5 that on account of my voluntary retirement from the bank under the Scheme, I have no right to claim for compassionate appointment". In view of the said clause, the petitioner's case that he was assured by the respondents cannot be accepted. Further, the petitioner was paid ex gratia, hence, the question of giving appointment to his son does not arise at all.
7. Learned Standing Counsel for the bank relied on the judgment in Somvir Singh's case (supra), wherein the Hon'ble Apex Court in paragraph 7 and 10 held as under:
" Article 16(1) of the Constitution of India guarantees to all its citizens equality of opportunity in matters relating to employment or appointment to any office under the State. Article 16(2) protects citizens against discrimination in respect of any employment or office under the State on grounds only of religion, race, caste, sex and descent. It is so well settled and needs no restatement at our end that appointment on compassionate grounds is an exception carved out to the general rule that recruitment to public services is to be made in a transparent and accountable manner providing opportunity to all eligible persons to compete and participate in the selection process. Such appointments are required to be made on the basis of open invitation of applications and merit. Dependants of employees died in harness do not have any special or additional claim to public services other than the one conferred in any by the employer.
There is no dispute whatsoever that the appellant Bank if required to consider the request of compassionate appointment only in accordance with the scheme framed by it and no discretion as such is left with any of the authorities to make compassionate appointment dehors the scheme. In our considered opinion the claim for compassionate appointment and the right, if any is traceable only to the Scheme, executive instructions, rules, etc. framed by the employer in the manner of providing employment on compassionate grounds. There 6 is no right of whatsoever nature to claim compassionate appointment on any ground other than the one, if any, conferred by the employer by way of scheme or instructions as the case may be."
In Ahmednagar Mahanagar Palika's case (supra), in paragraph 16, the Hon'ble Apex Court observed as under:
" Even otherwise, such an appointment to the heirs of the employees on their retirement and/or superannuation shall be contrary to the object and purpose of appointment on compassionate grounds and is hit by Article 14 of the Constitution of India. As observed and held by this Court in a catena of decisions, compassionate appointment shall always be treated as an execution to the normal method of recruitment. The appointment on compassionate is provided upon the death of an employee in harness without any kind of security whatsoever. The appointment on compassionate grounds is not automatic and shall be subject to the 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. No one can claim to have a vested right for appointment on compassionate grounds. Therefore, appointment on compassionate grounds cannot be extended to the heirs of the employees on their superannuation and/or retirement. If such an appointment is permitted, in that case, outsiders shall never get an appointment and only the heirs of the employees on their superannuation and/or retirement shall get an appointment and those who are the outsiders shall never get an opportunity to get an appointment though they may be more meritorious and / or well educated and / or more qualified. Therefore, the submission on behalf of the respondent that the appointment is not on compassionate grounds but the same be called as varas hakka cannot be accepted. Even if the same be called as varas hakka the same is not supported by any scheme and even the same also can be said to be violative of Article 14 as well as Article 15 of the Constitution of India."7
8. In view of the law laid down by the Hon'ble Apex Court, the request for compassionate appointment can be considered only in accordance with the Scheme framed by it and no discretion as such is left with any of the authorities to make compassionate appointment de hors the scheme. Further, agreeing with the contention raised by the learned counsel for the bank that petitioner is well aware that his case cannot be considered once he retired from service by adopting voluntary retirement scheme, even though the sympathies are with the petitioner, this Court cannot go beyond the scope of the Scheme as well as the judgments of the Hon'ble Supreme Court.
9. Admittedly, the Scheme will apply to the employees who are compelled to leave the bank service before attaining the age of 55 years. In this case, the petitioner is aged about 55 years three months and 15 days as on the date of his retirement. Hence, the contention of the petitioner that he is entitled for compassionate appointment cannot be accepted on this ground also. The Writ Petitoin is devoid of merits and the asme is liable to be dismissed.
10. The Writ Petition is accordingly, dismissed. No costs.
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11. Pending miscellaneous petitions, if any, shall stand closed.
-------------------------------------- NAGESH BHEEMAPAKA, J 08th September 2023 ksld