Manish Kumar 101(Revp)2015 Inre ... vs The Deputy G.M.Oriental Bank Of ...
2016 Latest Caselaw 6188 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

1
 
AFR
 
Court No. - 1 Reserved
 
Case :- SPECIAL APPEAL DEFECTIVE No. - 15 of 2016
 
Appellant :- Manish Kumar 101(Revp)2015 Inre 2770(S/S)2002
 
Respondent :- The Deputy G.M.Oriental Bank Of Commerce
 
Lko.& Anr.
 
Counsel for Appellant :- Arvind Kumar Vishwakarma
 
Counsel for Respondent :- Vinay Shankar
 
Hon'ble Amreshwar Pratap Sahi,J.

Hon'ble Dr. Vijay Laxmi,J.

(Delivered by Hon'ble Dr. Vijay Laxmi ,J.)

1. This special appeal has been filed against the judgment

and order dated 25.04.2014 passed in Writ Petition No.2770

(S/S) of 2002 and judgment and order dated 27.10.2015

passed in Review Petition Defective No.101 of 2015 whereby

the claim of the appellant for compassionate appointment in

place of his mother was dismissed.

2. The appellant has claimed compassionate appointment

in place of his mother, who was working as Class-IV

employee in the Oriental Bank of Commerce, Branch

Hazratganj, Nawal Kisore Road, Lucknow (hereinafter

referred to as 'Bank') who died in-harness on 08.12.1995

leaving behind her two minor children, namely, Manish

Kumar, appellant aged about 12 years and Km. Jyoti, her

younger sister at the time of her death. The father of the

appellant had already expired on 13.10.1990 much earlier to

the death of late Smt. Jayanti, mother of the appellant. The

appellant along with his sister had been brought up under the

guardianship of their maternal grandfather. The appellant,

after attaining the age of majority, moved an application on

30.08.2001 seeking for compassionate appointment.

3. Learned counsel for the appellant argued that action of

the bank in turning down the claim of the appellant was

totally against Article 14 and 21 of the Constitution of India.

Though the compassionate appointment was not a right but

for minimum requirement of human life, the appointment of

the appellant was very much required in the facts and

circumstances of the case. The fundamental rights

guaranteed under Article 21 of the Constitution of India

guaranteeing the right to life and live with dignity neither

can be diluted nor circumvented by the scheme or statutory

provision. The appellant was hardly 12 years of age and his

mother who was sole bread earner of the family died and

admittedly when he became major after 5 years, just after

attaining the age of 18 years, he applied for appointment on

the compassionate ground. Learned counsel for the appellant

contends that the order was passed by the respondent-bank

without considering the relevant facts about the size of the

appellant'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 appellant for

compassionate appointment is arbitrary. It was submitted

that the case of the appellant ought to have been considered

in the light of the Scheme `Dying in Harness Scheme' which

was then in vogue and the action of the bank is just contrary

to the justice, equity and good conscience and is liable to be

set aside .

4. Per contra, learned counsel for the respondent-bank

has vehemently opposed the claim of the appellant alleging

that the claim of the appellant had been turned down on the

basis of bank Circular No. Per/50/92/93/295, dated

25.11.1993 followed by the the subsequent Circular No.

Per/53/75/96/104, dated 16.09.1996, which provided norms

and guidelines for providing compassionate appointment to

the dependents of deceased employee. According to these

norms the dependent is required to apply for compassionate

appointment with the bank within the period of one year

from the date of death of employee, and in case the

dependent is minor, his/her case can be considered at the

discretion of the bank within the period of four years from

the death of employee which is lacking in this case. Beyond

that period, the request for compassionate appointment

cannot be considered in any case. Learned counsel for the

respondent-Bank argued that the bank circulars dated

25.11.1993 and 16.09.1996 are binding in nature and no

discretion is given to the bank authorities to deviate, modify

or to create any distinction in the said schemes.

5. Learned counsel for the respondent-bank further

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 which does not create a vested

right in favour of the claimant/appellant. The compassionate

appointment is justified when it is granted to provide

immediate succor to the deceased-employee and cannot be

granted in view of passage of time. In support of his

contention, learned counsel for the respondent placed

reliance on the ruling of State Bank of India and another

versus Raj Kumar reported in 2010 (11) 661 and Union of

India versus R. Padmanabhan reported in (2003) 7 SCC

270 and argued that the appointment on compassionate

ground cannot be made a source of recruitment. It is an

exception to the general rule that the 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. It was to enable the

family of the deceased to get over for the sudden financial

crisis.

6 . We have heard rival submissions of learned counsel for

both the parties and perused the record. It would be

appropriate here to mention the relevant provisions of the

scheme of the bank dated 25.11.1993 which are reproduced

below:

▪ "Para IV: Appointment under this scheme shall be

made with the prior sanction of the General

Manger. Requests for appointment under this

scheme should be received by the bank within one

year from the date of death of the employee

concerned. This condition may be waived by the

General Manger on the merits of each case.

▪ However, with the approval of the Board of

Directors:

(a) In case the member of the family to be offered

appointment is a minor, the offer of appointment

may be kept open till the minor attains the age of

majority provided a request to that effect is made to

the bank within the stipulated time limit."

▪ (b) In case a member of the family sponsored for

appointment desires to wait till he/she attains

certain educational qualifications, his/her case may

be considered provided the date so stipulated is

within four years from the date of death of the

employee."

7. The relevant provisions of the scheme of the bank dated

16.09.199 are reproduced as under:

3. Request for appointment under the scheme should

be made at the earliest and in any case not later than

one year from the date of death of the employee.

4. In case, the dependent is a minor or does not

possess minimum qualification his/her case can be

considered at the discretion of the bank within four

years of the death of the employee to enable him/her or

to qualify in terms of age and/or qualification provided

that the dependent has made a request to the bank

within one year of death of the employee.

5. Compassionate appointment shall be considered by

the bank only subject to the availability of vacancy.

8. Thus the schemes categorically provide that there were

three per-requisite conditions under the scheme for

compassionate appointment:- (i) an application by a

dependent family member of the deceased employee within

one year of death of the employee; (ii) fulfillment of the

eligibility criteria prescribed under the scheme, for

compassionate appointment; and (iii) availability of posts, for

making such appointment. According to the respondent bank

the said three conditions were not fulfilled by the appellant

hence his claim was rightly rejected.

9. Admittedly, the mother of the appellant was employed

in the Oriental Bank of Commerce, Branch Hazratganj as

class-IV employee who died on 08.12.1995 leaving behind

her two minor children, namely, Manish Kumar, appellant

aged about 12 years and Km. Jyoti aged about 10 years. The

father of the appellant had expired earlier on 13.10.1990. It

is contended by learned counsel for the appellant that it is

because of death of both father and mother the appellant

could move application for the first time on 30.8.2001 after

attaining age of majority by which time he had passed the

Junior High School examination.

The bank has scrutinized the claim of the appellant and

wrongly rejected the same vide order dated 05.10.2001

observing that the appellant had moved the application for

compassionate appointment on 30.08.2001 i.e after lapse of

about 6 years from the date of death of the employee i.e.

08.12.1995 thus the case of the appellant did not fall within

the four corners of the schemes of the bank.

10. The learned single Judge who heard the writ petition

dismissed the same by an order dated 24.04.2014 holding that

the concept of compassionate appointment has been

recognized 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. In this regard, the learned single Judge placed

reliance on several decisions of the Hon'ble Supreme court

and dismissed the Writ Petition. Aggrieved by such order, the

appellant has filed the instant Appeal.

It is seen that two reasons have been assigned for rejecting the

appellant's request. Thus the two points that emerge for

consideration, are as follows:

(a) Whether the application for appointment on compassionate

grounds can be entertained even if not made within the

stipulated period of four years?

(b) Whether the application for appointment on

compassionate grounds was not in time?

11. The issue as to whether an application made after 4

years can be considered or not, has come up for consideration

in number of cases before High Court and the Honourable

Supreme Court where the findings have been given by the

Courts that in case the appellant has not filed application

seeking compassionate appointment within four years from

the date of death of his father and that he has not completed

18 years of age within four years, these are not valid grounds

to deny appointment on compassionate ground. Similar issue

was considered by Madras High Court in the decision

reported in T.Meer Ismail Ali v. The Tamil Nadu Electricity

Board, 2004 (3) CTC 120 [F.M.Ibrahim Kalifullah,J (as he

then was)]. In the said case the deceased Board employee

died on 13.04.1993 and the application submitted by one of

his daughter on 05.08.1997 was rejected on the ground that

she had not completed 18 years of age and after completing

18 years of age when an application was made on 04.07.2000

which was rejected on the ground that the application was not

made within three years from the date when the Board

Proceedings dated 13.10.1995 was issued. The Court

considering the technical plea raised by the respondent Board

set aside the said order and remitted the matter to pass fresh

orders without reference to the objections already raised by

the Board. The said order of the learned single Judge was

challenged by the TNEB in W.A.No.4008 of 2004 before the

First Bench of Madras Court (consisting of the Hon'ble

Mr.Justice Markandey Katju,C.J. (as he then was) and

N.V.Balasubramanian,J.) which dismissed the writ appeal on

01.12.2004. The respondents therein filed SLP No.6387 of

2005 against the said order which was also dismissed on

01.04.2005 by the Honourable Supreme Court and

consequently the said writ appellant was given

compassionate appointment.

12. Another Writ Petition in W.P.No.41459 of 2005 was

considered by Madras High Court on the same set of facts.

The said writ petition was allowed following the earlier order

of the Division Bench of Madras High Court made in

W.A.No.4008 of 2004 dated 01.12.2004 and the said decision

is reported in Selvi R. Anbarasi v. Chief Engineer (Personnel),

TNEB, Chennai, 2006 (2) MLJ 200. The said order was

challenged by the TNEB before the First Bench in

W.A.No.988 of 2006. However, the said appellant was given

appointment on compassionate ground by implementing the

order and therefore the writ appeal was dismissed as

infructuous on 15.09.2006 by recording the statement made

by the Standing Counsel for the TNEB.

13. In W.P.No.21512 of 2003 one Indiraniammal challenged

the rejection of compassionate appointment before Madras

High Court on similar ground. The learned single Judge

dismissed the writ petition by order dated 04.08.2003 against

which W.A. No.3050 of 2003 was filed and the said writ

appeal was allowed by the Division Bench (consisting of the

Hon'ble Mr. Justice P. Sathasivam (as he then was) &

S.K.Krishnan,J) by order dated 08.03.2005 following the

earlier judgments as well as the Supreme Court Judgment

reported in Balbir Kaur v. Steel Authority of India Ltd.,

(2000) 6 SCC 493. Against the said decision Civil Appeal

No.2039 of 2006 was filed by the respondent Board which

was dismissed by the Honourable Supreme Court on

30.03.2010.

14. Dismissal of another W.P.No.775 of 2004 by order

dated 29.01.2005 of Madras High Court on the ground of

delay was considered by the Division Bench (F.M.Ibrahim

Kalifullah,J. (as he then was) & P.Murugesan,J) in

W.A(MD).No.29 of 2006 and by order dated 27.06.2006 the

Division Bench allowed the writ appeal and directed to give

compassionate appointment to the younger son of the

deceased Board employee, who died on 15.11.1996. The said

order of the Division Bench was also challenged by the Board

in SLP(C)No.15534 of 2007 which was also dismissed by the

Apex Court on 08.04.2009.

15. In W.P.No.18575 of 2006 filed by P.Venkatesan,

Madras High Court again considered similar issue and

allowed the writ petition on 20.06.2006 by following earlier

orders. The said order was also challenged by the respondent

in W.A.No.42 of 2007 and the Division Bench

(D.Murugesan,J & K.Venkataraman,J) dismissed the writ

appeal on 02.07.2009. The Board filed SLP(C)No.8305 of

2010 which was also dismissed by the Hon'ble Supreme

Court on 06.07.2010. The said candidate viz., P.Venkatesan

was given compassionate appointment by order dated

18.08.2010.

16. Similar issue came up for adjudication before High

Court of Madras in J. Jeba Mary vs. The Chairman, Tamil

Nadu Electricity Board reported in 2011 (3) LLN 405 (Mad.)

which was considered by Mr. Justice N. Paul Vasanthakumar.

The writ was allowed and the direction was given to give

compassionate appointment to the dependent of the deceased

employee. The judgment was confirmed by the the Apex

Court.

17. From the above referred decisions passed in series of

cases on the same ground, it is evident that on the similar

grounds raised by the respondents that the appellant has not

filed application seeking compassionate appointment within

stipulated period from the date of death of his father and that

he has not completed 18 years of age within stipulated period

are not valid grounds to deny appointment on compassionate

ground as according to appellant no one in his family was

employed and the family of the appellant was in indigent

circumstance even on that date. Therefore, when the family of

the employee who died in harness is still suffering where no

other member is employed, this Court as well as the Apex

Court have always come to rescue of the applicant seeking

appointment on compassionate grounds. Such applications

can also be entertained in deserving cases and the said rule of

4 years can only be treated as a rule of thumb and cannot be

strictly implemented in all cases.

18. In the instant case, it is not in dispute that the appellant

was about 12 years of age when he lost his mother, he had lost

his father earlier thus after completing 18 years of age he

earned more an application for compassionate appointment

only in the year 2001.The appellant is prosecuting the matter

before the respondents right from August, 2001. Thus It

cannot be held that the appellant was not diligent in seeking

for compassionate appointment at the earliest point of time. In

fact, immediately after attaining 18 years of age and also after

qualifying himself, when the appellant came forward with the

present application in 2001, in all fairness, the respondent

should have considered the appellant's claim on merits who

claimed that his sister was minor and, therefore, he was the

only breadwinner of the family. In such circumstances, it was

a deserving case where the respondent should have shown

some compassion while considering the appellant application

for compassionate appointment. Unfortunately, the respondent

did not seem to have shown any compassion at all and

mercilessly rejected the appellant's application on a hyper

technical ground. It is not the case of the bank that the

appellant family is having any other income to negate their

claim for appointment on compassionate ground.

19. Now coming to the next question about request for

appointment within one year of the death of the employee, it

is not disputed that the application for appointment on

compassionate grounds was made by the appellant on

30.08.2001. As per the then prevailing scheme of 1993,

though the request for appointment was to be made within

one year of the the death of the employee, but it was due to

peculiar circumstances of this case that the appellant could

submit his application for the first time on 30.08.2001 i.e.

after about more than 5 years after the death of the employee,

since the appellant had lost both his father in 1990 and his

mother in 08.12.1995. Thus under such circumstances no

adverse order could be passed against the appellant on this

ground. Moreover, when a person cannot be employed in

government service before completion of 18 years of age, he

could not also make an application during his period of

minority,

20. It appears that the appellant has immediately submitted

an application on 30.08.2001 on attaining majority. The

respondent bank has taken a hyper technical stand that the

application must have been submitted only within one year of

the the death of the employee and the application submitted

after more than 5 years is invalid. This court is rejecting the

contention of the respondent bank. The intention of the said

bank scheme is to alleviate the distress of the bereaved

family. The purpose of the scheme is to see that the cry of

the family for bare subsistence would not go unheeded on

certain technicality. Ours is a welfare state. The judgment,

therefore, are meant to highlight the constitutional

philosophy of socialistic one and to make an attempt to give

the philosophy a reality of flesh and blood.

21. Now regarding the applicability of the bank scheme of

1993 or 1996, the appellant's mother died in 1995 while she

was serving as a class IV employee in the respondent-bank

and the appellant applied for compassionate appointment.

The respondent-bank rejected the appellant's claim. However,

the cause of action to be considered for compassionate

appointment arose when the bank scheme of 1993

was in force. As per the judgment of Supreme Court in

Bank of India & Ors. vs. Jaspal Kaur, (2007) 9 SCC 571 ,

the claim cannot be decided as per 1996 Scheme. The scheme

of 1996 being an administrative or executive order cannot

have retrospective effect so as to take away the right accrued

to the appellant as per scheme of 1993.

22. We are, therefore, of the view that the appellant's case

deserves consideration inasmuch as he had diligently made a

claim after attaining the age of 18, in the year 2001 and in

such circumstances, rejection of his application on the ground

that it was not made within four years was not justified.

23. In view of the above, this Court is of the view that the

application made on 30.08.2001 is well within time and the

orders impugned are, therefore, set aside and the respondent

bank is directed to consider the appellant's application on

merits and provide necessary relief to the appellant in

accordance with the rules relating to compassionate

appointment within four weeks from today.

24. With the above direction, the appeal is allowed.

Order Date :- 27/9/2016

KR