Indra Kumar vs Union Of India Thru Its Sec, ...
2014 Latest Caselaw 3956 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 58
 

 
Case :- WRIT - A No. - 69033 of 2010
 

 
Petitioner :- Indra Kumar
 
Respondent :- Union Of India Thru Its Sec, Ministry Of Finance And Others
 
Counsel for Petitioner :- Siddharth Khare
 
Counsel for Respondent :- A. S. G. I.,Ashish Kumar Srivastava,Tarun Verma
 

 
Hon'ble Suneet Kumar,J.

Heard learned counsel for the petitioner and Sri Ashish Kumar Srivastava, learned counsel appearing for the respondents.

The father of the petitioner was working as a Class-IV employee with respondent-bank and died in harness on 11.9.1998. The mother of the petitioner made a request on 12.11.1998 for compassionate appointment. The matter was kept pending on one pretext or the other and no decision was taken, however, the petitioner received a letter on 3.2.2005 directing him to appear for interview on 14.2.2005 and by letter dated 30.7.2005 the petitioner was given an option either to accept Rs. 9,50,000/- towards ex-gratia payment or compassionate appointment. The petitioner by his letter dated 19.11.2010 requested for compassionate appointment in lieu of compensation but no decision was taken on petitioner's application. Aggrieved the petitioner approached the Court by filing the present writ petition. In the meantime, the bank scraped the scheme for compassionate appointment and formulated a scheme for payment of ex-gratia amount in lieu of appointment on compassionate ground which came into force w.e.f. 18th December, 2004 and as such the petitioner's claim was not considered for compassionate appointment.

The submission of the learned counsel for the petitioner is that despite the scheme coming into force the respondents had invited the petitioner for interview and had also given him an option either to opt for compassionate appointment or for compensation. Hence on the principle of legitimate expectation the petitioner is entitled for compassionate appointment. In support of his submission learned counsel for the petitioner relied upon State Bank of India and another vs. Raj Kumar [(2010) 11 SCC 661].

In rebuttal Sri Srivastava submits that the scheme for compassionate appointment has since been scraped and as per policy decision a formula has been worked out for payment of ex-gratia amount in lieu of compassionate appointment. Till date the petitioner has not applied for ex-gratia payment under the new scheme, as and when the petitioner approaches the respondent-bank for ex-gratia amount, the same shall be considered as per the prevailing scheme. Since no decision was taken earlier, therefore, the petitioner is not entitled for compassionate appointment.

Rival submission fall for consideration.

A Division Bench of this Court in Special Appeal No. 14 of 2007 (State Bank of India Vs. Ajai Kumar) decided on 21.11.2013, after considering the judgments of the Supreme Court in (i) General Manager (D&PB) and Others Vs. Kunti Tiwary and Another; (2004) 7 SCC 271 (ii)Punjab National Bank and Others Vs. Ashwini Kumar Taneja; (2007) 7 SCC 265 (iii) Mumtaz Yunus Mulani (Smt.) Vs. State of Maharashtra and Others; (2008) 11 SCC 384 and (iv) Union of India & Anr. Vs. Shashank Goswami & another 2012 STPL (Web) 320 SC, held that terminal benefits, which have been given to the family of the deceased, have to be duly taken into account while considering the case of the petitioner for compassionate appointment.

The bank has in the circumstances duly considered the financial position of the family of the deceased employee and it is beyond the scope of judicial review under Article 226 of the Constitution of India for the High Court to undertake the exercise to decide as to what would be the reasonable income which would be sufficient for a family for its survival and whether it had not been left in penury or without any means of livelihood.

In State Bank of India Vs. Somveer Singh (2007) 4 SCC 778, the Supreme Court held that financial condition of the deceased employee's family should be the important criterion for eligibility of compassionate appointment. The High Court cannot undertake any exercise to decide as to what would the reasonable income, which would be sufficient for the family, for its survival and whether his family is in penury or without any means of livelihood. The High Court can only advert to itself to review the decision making process.

It is settled principle of law that rules, regulation, scheme or policy as applicable on the date of passing of the order shall be applicable and not that was applicable on the date of filing of application. (Vide Commissioner Municipal Corporation, Shimla vs. Prem Lata Sood and others (2007) 11 SCC 40, Union of India and others vs. Indian Charge Chrome and Another (1999) 7 SCC 314, Kuldeep Singh vs. Govt. of NCT of Delhi (2006) 5 SCC 702).

In this context I may usefully refer to the decision of Supreme Court in Union of India vs. R. Padmanabhan 2003 (7) SCC 270, wherein this Court observed:

"That apart, being ex gratia, no right accrues to any sum as such till it is determined and awarded and, in such cases, normally it should not only be in terms of the Guidelines and Policy, in force, as on the date of consideration and actual grant but has to be necessarily with reference to any indications contained in this regard in the Scheme itself. The line of decisions relation to vested rights accrued being protected from any subsequent amendments may not be relevant for such a situation and it would be apposite to advert to the decision of this Court reported in State of Tamil Nadu vs. Hind Stone and Ors. - 1981 (2) SCC 205. That was a case wherein this Court had to consider the claims of lessees for renewal of the Tamil Nadu Minor Mineral Concession Rules, 1959. The High Court was of the view that it was not open to the State Government to keep the time and then depose them of on the basis of a rule which had come into force later. This Court, while reversing such view taken by the High Court, held that in the absence of any vested rights in anyone, an application for a lease has necessarily to be dealt with according to the rules in force on the date of the disposal of the application, despite the delay, if any, involved although it is desirable to dispose of the applications, expeditiously."

Reference may also be made to the decision of Supreme Court in Kuldeep Singh vs. Government of NCT of Delhi [2006 (5) SCC 702] which considered the question of grant of liquor vent licences. The Supreme Court held that where applications required processing and verification the policy which should be applicable is the one which is prevalent on the date of grant and not the one which was prevalent when the application was filed. The Apex Court clarified that the exception to the said rule is where a right had already accrued or vested in the applicant, before the change of policy.

The Supreme Court in State Bank of India and another Versus Raj Kumar (2010) 11 SCC 661 held that an appointment under the scheme can be made only if the scheme is in force and when a scheme is abolished, any pending application seeking appointment under the scheme will also cease to exist unless saved. The mere fact that the application was made when the scheme was in force, will not by itself create a right in favour of the applicant. Paragraph 6 is as follows:-

"6. It is now well settled that appointment on compassionate grounds is not a source of recruitment. On the other hand it is an exception to the general rule that recruitment to public services should be on the basis of merit, by an open invitation providing equal opportunity to all eligible persons to participate in the selection process. The dependants of employees, who die in harness, do not have any special claim or right to employment, except by way of the concession that may be extended by the employer under the Rules or by a separate scheme, to enable the family of the deceased to get over the sudden financial crisis. The claim for compassionate appointment is therefore traceable only to the scheme framed by the employer for such employment and there is no right whatsoever outside such scheme. An appointment under the scheme can be made only if the scheme is in force and not after it is abolished/withdrawn. It follows therefore that when a scheme is abolished, any pending application seeking appointment under the scheme will also cease to exist, unless saved. The mere fact that an application was made when the scheme was in force, will not by itself create a right in favour of the applicant."

Full Bench of this Court in Anand Kr. Sharma versus State of U.P and others 2014(2) ADJ (FB) was considering whether application for freehold right would be considered as per the policy existing on the date of application or as per the amended policy while deciding the application. It was held that mere making of application one does not acquire any vested right and if there is change of policy, no question of legitimate expectation arises. Paras 30, 32, 37 are as follows:

"30. For the above it is clear that legitimate expectation may arise :

(a) if there is an express promise given by a public authority; or

(b) because of the existence of a regular practice which the claimant can reasonably expect to continue ; or

(c) Such an expectation must be reasonable.

However, if there is a change in policy or in public interest the position is altered by a rule or legislation, no question of legitimate expectation would arise."

32. A Three judges' bench in P.T.R. Exports (Madras) Pvt. Ltd. & Ors. Vs. Union of India & Ors, (1996) 5 SCC 268, had occasion to consider the concept of "legitimate expectation" in context of change of policy. In the above case, the petitioners before the Apex Court were exporters of ready-made garments to several countries. The Government of India, Ministry of Commerce had evolved Export and Import policy in the year 1992-93. New export policy w.e.f. 01/1/1996 was introduced withdrawing the previous policy. The petitioners challenged the change of policy in the High Court which challenge was negatived by the High Court. Before the Apex Court, the Special Leave Petitions were filed. In the above case, the Apex Court held that the applicant has no vested right in respect of import and export licences in terms of the policies in force on the date of making his application. It was further held that the Government is not barred by the promises or of legitimate expectations from evolving new policy. Following was laid down in paragraphs 3, 4 and 5 of the said judgment which are quoted below:

"3. In the light of the above policy question emerges whether the Government is bound by the previous policy of whether it can revise its policy in view of the changed potential foreign markets and the need for earning foreign exchange? It is true that in a given set of facts, the Government may in the appropriate case be hound by the doctrine of promissory estoppel evolved in Union of India v. Indo-Afghan Agencies Ltd.(1968) 2 SCR 366. But the question revolves upon the validity of the withdrawal of the previous policy and introduction of the new policy. The doctrine of legitimate expectations again requires to be angulated thus : whether it was revised by a policy in the public interest or the decision is based upon any abuse of the power? The power to lay policy by executive decision or by legislation includes power to withdraw the same unless in the former case, it is by mala fide exercise of power or the decision or action taken is in abuse of power. The doctrine of legitimate expectation plays no role when the appropriate authority is empowered to take a decision by an executive policy or under law. The Court leaves the authority to decide its full range of choice within the executive or legislative power. In matters of economic policy, it is a settled law that the Court gives the large leeway to the executive and the legislature. Granting licences for import or export is by executive or legislative policy. Government would take diverse factors for formulating the policy for import or export of the goods granting relatively greater priorities to various items in the overall larger interest of the economy of the country. It is, therefore, by exercise of the power given to the executive or as the case may be, the legislature is at liberty to evolve such policies.

4. An applicant has no vested right to have export or import licences in terms of the policies in force at the date of his making application. For obvious reasons, granting of licences depends upon the policy prevailing on the date of the grant of the licence or permit. The authority concerned may be in a better position to have the overall picture of diverse factors to grant permit or refuse to grant permission to import or export goods. The decision, therefore, would be taken from diverse economic perspectives which the executive is in a better informed position unless, as we have stated earlier, the refusal is mala fide or is an abuse of power in which event it is for the applicant to plead and prove to the satisfaction of the Court that the refusal was vitiated by the above factors.

5. It would, therefore, be clear that grant of licence depends upon the policy prevailing as on the date of the grant of the licence. The Court, therefore, would not bind the Government with a policy which was existing on the date of application as per previous policy. A prior decision would not bind the Government for all times to come. When the Government are satisfied that change in the policy was necessary in the public interest, it would be entitled to revise the policy and lay down new policy. The Court, therefore, would prefer to allow free play to the Government to evolve fiscal policy in the public interest and to act upon the same. Equally, the Government is left free to determine priorities in the matters of allocations or allotments or utilisation of its finances in the public interest. It is equally entitled, therefore, to issue or withdraw or modify the export or import policy in accordance with the scheme evolved. We, therefore, hold that the petitioners have no vested or accrued right for the issuance of permits on the MEE or NQE, nor the Government is bound by its previous policy. It would be open to the Government to evolve the new schemes and the petitioners would get their legitimate expectations accomplished in accordance with either of the two schemes subject to their satisfying the conditions required in the scheme. The High Court, therefore, was right in its conclusion that the Government are not barred by the promises or legitimate expectations from evolving new policy in the impugned notification."

37. A Division Bench of this Court in which one of us (Ashok Bhushan, J.) was a member in 2013 (2) ADJ 166 Nar Narain Misra Vs. State of U.P. and others, also considered the similar submissions in context of the U.P. Minor Minerals Concession Rules 1963. Applications were made by several applicants for grant of mining lease under Chapter II of the Rules. The applications remained pending. The State Government issued a Government Order dated 31.5.2012 by which all vacant area was notified under Chapter III i.e. for settlement of right by auction/tenders. The writ petitions were filed by the applicants seeking a mandamus that respondents may be directed to consider their applications for grant of mining lease and the Government Order dated 31.5.2012 declaring the area under Chapter II be not applied in their cases. Submission was made that Government Order dated 31.5.2012 at best shall apply to the area which fall vacant subsequent to the Government Order. Negativating the said submissions, following was laid down by the Division Bench in paragraph 46:

"46. In view of the above pronouncement of the apex Court, it is clear that the applicants whose application for renewal is pending cannot claim that their application for renewal be considered under Chapter II and those areas be kept out of purview of the Government order dated 31.5.2012. The areas having been declared under Rule 23(1), the provisions of Chapter II under which renewal of lease can be granted becomes inapplicable. The new state of affairs which have been brought into existence by declaration under Rule 23(1) has to be given its full effect and no rider or exception can be read specially when the Government Order dated 31.5.2012 does not contemplate any such exception. Thus, the submission of the applicants that their renewal applications which were pending at the time of issuance of declaration on 31.5.2012 shall be considered according to Chapter II cannot be accepted and the areas in respect of which the applications for renewal were pending on 31.5.2012, cannot be said to be not vacant."

This petition was filed in the year 2010, whereas, the father of the petitioner died on 11.9.1998 thus is a belated petition. Considering the fact that the father of the petitioner had already died in 1998 and the application was kept pending would not attract the principle of legitimate expectation. The authorities of the bank kept corresponding with the petitioner and also gave a choice for compassionate appointment or ex-gratia payment would not create a vested right in the petitioner. The policy for compassionate appointment was scrapped and a new policy of ex-gratia payment in lieu of appointment on compassionate ground was formulated, the case of the petitioner can be considered as per the policy in force on the date on which the petitioner's application would be considered. The petitioner has not explained satisfactorily, as to why, the petitioner has approached the Court after twelve years. The petitioner is entitled to get his application for ex-gratia payment, considered as per the existing scheme.

In the facts and circumstances of the case, the petitioner is not entitled for compassionate appointment, as the scheme no longer exists, however, in event, the petitioner approaches the respondent-bank by making an application in the prescribed form for payment of ex-gratia amount in lieu of compassionate appointment, the respondent-bank shall consider the application and pass appropriate orders within three months from the date of filing of certified copy of this order along with the application form.

Subject to the above observations, the writ petition is disposed of.

Order Date :- 4.8.2014

S.Prakash