G.M. (Personnel & Admn.), Indian ... vs Amarendra Kumar Sharma
2017 Latest Caselaw 647 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 10
 

 
Case :- SPECIAL APPEAL No. - 2126 of 2012
 

 
Appellant :- G.M. (Personnel & Admn.), Indian Overseas Bank And Others
 
Respondent :- Amarendra Kumar Sharma
 
Counsel for Appellant :- Manish Mehrotra
 
Counsel for Respondent :- Anil Kumar Srivastava
 

 
Hon'ble Arun Tandon,J.

Hon'ble Mrs. Rekha Dikshit,J.

This intra-Court appeal is directed against the judgment and order of the learned Single Judge dated 11.09.2012 passed in Writ Petition No. 6804 of 2007 (Amarendra Kumar Sharma vs. G.M., (P & A), Indian Overseas Bank, Chennai & Others).

Facts in short for deciding the present appeal as borne out from the records are :---

The father of the writ-petitioner expired during harness on 17.08.2004. He was working as Clerk in the Indian Overseas Bank, Branch Office, Varanasi. The petitioner is stated to have made an application for compassionate appointment on 11.09.2004 along with necessary documents. The application was supported by a no objection of the widow of the deceased also namely the mother of the petitioner.

It appears that the application remained pending and in the meantime the bank came out with a circular dated 04.10.2004 for introducing a new scheme in place of compassionate appointment.

Under the new scheme the dependents were to be offered monetary benefits in lump-sum.

Since the application of the petitioner was not considered because of the new scheme enforced on 04.10.2004, he approached the writ-court by means of the petition giving rise to the present appeal.

The learned Single Judge has held that the claim of the petitioner for compassionate appointment had been set up much prior to the enforcement of the new scheme. On the date of application the new scheme had not been enforced. Therefore, the petitioner is entitled for compassionate appointment. The learned Single Judge has relied upon the judgment of the Apex Court in the case of Abhishek Kumar vs. State of Haryana & Others reported in 2007 (112) FLR-70 (SC) wherein it has been held that the claim of the applicant for compassionate appointment has to be considered on the basis of the scheme for compassionate appointment as was applicable on the date of application.

Counsel for the appellant contended before us that the issue so raised is no more res integra. The Apex Court in the case of State Bank of India & Another vs. Raj kumar reported in (2010) 11 SCC, 661 in paragraph nos. 8,9,10,11,12 & 13 has held as follows :--

?8. 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.

9. Normally, the three basic requirements to claim appointment under any scheme for compassionate appointment are: (I) an application by a dependent family member of the deceased employee; (ii) fulfilment of the eligibility criteria prescribed under the scheme, for compassionate appointment; and (iii) availability of posts, for making such appointment. If a scheme provides for automatic appointment to a specified family member, on the death of any employee, without any of the aforesaid requirements, it can be said that the scheme creates a right in favour of the family member for appointment on the date of death of the employee. In such an event the Scheme in force at the time of death would apply.

10. On the other hand, if a scheme provides that on the death of an employee, a dependent family member is entitled to appointment merely on making of an application, whether any vacancy exists or not, and without the need to fulfil any eligibility criteria, then the scheme creates a right in favour of the applicant, on making the application and the Scheme that was in force at the time when the application for compassionate appointment was filed will apply. But such schemes are rare and in fact, virtually nil.

11. Normal schemes contemplate compassionate appointment on an application by a dependent family member, subject to the applicant fulfilling the prescribed eligibility requirements, and subject to availability of a vacancy for making the appointment. Under many schemes, the applicant has only a right to be considered for appointment against a specified quota, even if he fulfils all the eligibility criteria; and the selection is made to the most deserving among the several competing applicants, to the limited quota of posts available. In all these schemes there is a need to verify the eligibility and antecedents of the applicant or the financial capacity of the family. There is also a need for the applicant to wait in queue for a vacancy to arise, or for a Selection Committee to assess the comparative need of a large number of applicants so as to fill a limited number of earmarked vacancies.

12. Obviously, therefore, there can be no immediate or automatic appointment merely on an application. Several circumstances having a bearing on eligibility, and financial condition, up to the date of consideration may have to be taken into account. As none of the applicants under the scheme has a vested right, the scheme that is in force when the application is actually considered, and not the scheme that was in force earlier when the application was made, will be applicable.

13. Further, where the earlier scheme is abolished and the new scheme which replaces it specifically provides that all pending applications will be considered only in terms of the new scheme, then the new scheme alone will apply. As compassionate appointment is a concession and not a right, the employer may wind up the scheme or modify the scheme at any time depending upon its policies, financial capacity and availability of posts.?

The Apex Court has held that there cannot be immediate or automatic appointment merely on an application being made. It has been explained that if the new scheme had come into force in the meantime, then the new scheme will apply even if the application had been pending since prior to the coming into force of the new scheme. The judgment in the case of Abhishek Kumar (Supra) has also been considered therein.

In view of the law so laid down by the Apex Court in the case of State Bank of India (Supra), the judgment and order of the learned Single Judge cannot be sustained and is hereby set aside.

However, we hold that the petitioner-appellant is entitled to the benefits of the modified scheme dated 30.09.2004. Let the ex-gratia payment to be made to the dependent be calculated and paid to him within eight weeks from the date a certified copy of this order is filed before the bank along with interest @ 8% per annum only, provided of course the payment has yet not been made.

Appeal is allowed subject to the observations made herein above.

Order Date :- 15.5.2017

VR