Sarita Agarwal And Anr. vs Bank Of India And 3 Ors.
2017 Latest Caselaw 6168 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

								 A.F.R.
 
Court No. - 28
 
Case :- WRIT - A No. - 44642 of 2016
 
Petitioner :- Sarita Agarwal And Anr.
 
Respondent :- Bank Of India And 3 Ors.

Counsel for Petitioner :- Atul Pandey

Counsel for Respondent :- R.V. Pandey,S.C.

Hon'ble Saumitra Dayal Singh,J

Heard Sri Sovon Siddhanto, learned counsel for the petitioner and Sri R.V. Pandey, learned counsel for the respondent-bank.

This writ petition has been filed, seeking to quash of orders dated 22.9.2014 and 21.1.2015 and further seeking compassionate appointment occasioned by the death of Adesh Kumar Agarwal (who was a Scale-I officer with the respondent Bank of India), who died-in-harness on 8.3.2012. Petitioner no.1 is the widow of the deceased while petitioner no.2 is his son. Occasioned by that death, petitioner no.2 made an application dated 9.4.2012 to grant compassionate appointment citing financial distress faced by his family. The said application was rejected on 17.4.2012, for reason of absence of any scheme for grant of compassionate appointment.

Petitioners then contend, the bank itself proposed to consider to grant alternative relief of ex gratia payment. Apparently, the petitioner made an application on 13.6.2012 on a proforma provided by the bank whereupon on 27.11.2012, the bank appears to have made payment of Rs. 10,00,000/- in favour of the petitioner no.1 by way of ex-gratia payment. There is a dispute on this issue. While the petitioners contend that they received that money under protest, the bank contends that money was received by the petitioner, willingly. Also, some amount is being paid to the petitioner no. 1 by way of pension (admitted to the petitioners in the application dated 9.4.2012).

Be that as it may, payment of Rs. 10,00,000/- made by the bank through cheque was encashed by the petitioners. The petitioners, however, submit they have not utilized the money and it is still lying in their bank account with the respondent bank.

Undisputedly, thereafter, on 5.8.2014 under instructions issued by the Ministry of Finance, India Bank Association (of which the respondent bank is a member) issued a communication declaring promulgation of a scheme for grant of compassionate appointment in public sector banks. The said scheme has been annexed with the rejoinder affidavit and the same is admitted to the respondent also. Clause-8 of the scheme deals with the time limit for considering such applications. It reads as below:-

"8. Time Limit For Considering Applications

8.1 Application for employment under the Scheme from eligible dependent should normally be considered up to five years from the date of death or retirement on medical grounds and decision to be taken on merit in each case.

8.2. However, Bank can consider request for compassionate appointment even when the death or retirement on medical grounds of the employee took place long back, even five years ago. While considering such belated requests, it should however, be kept in view that the concept of compassionate appointment is largely related to the need for immediate assistance to the family of the employee in order to relieve it from economic distress. The very fact that the family has been able to manage somehow all these years should normally be taken as adequate proof that the family had some dependable means of subsistence. Therefore, examination of such cases would call for a great deal of circumspection. The decision to make an appointment on compassionate grounds in such cases may, therefore, be taken only at the Board level."

Here it may be noted, at that stage, a doubt appears to have been expressed whether this scheme would apply to cases where, as in this case, death had occurred prior to 5.8.2014. In that regard a letter appears to have been issued by the All India Bank Employees' Association whereby it has been informed to the office bearers etc. of the said association that the scheme dated 5.8.2014, would, in the first instant cover cases of death of employees and officers that may occur on and after 5.8.2014. It was however further stated, in respect of cases where death had been caused earlier, the matter was still under consideration and necessary communication in that regard would be made after decision is made by the competent authority.

While no other communication appears to have been issued thereafter, the petitioner made another application for grant of compassionate appointment on 15.9.2014. This was rejected by the bank by its communication dated 22.9.2014 observing that the claim could not be considered as the petitioners had already been granted ex-gratia payment of Rs. 10,00,000/-. Thereafter, on 19.1.2015 petitioner no.1 wrote to the bank proposing to return the amount of Rs. 10,00,000/- paid to her by their ex-gratia payment in lieu of compassionate appointment that she prayed may be granted to her son, petitioner no.2. This prayer was also rejected by the bank by communication dated 21.1.2015. The petitioner has, in the present petition challenged the orders dated 22.9.2014 and 21.1.2015.

Learned counsel for the petitioner submits there is no doubt whether the scheme would apply to the petitioner's case inasmuch as Clause-8.1 itself clearly states that the application for grant of compassionate appointment should normally be considered up to 5 years from the date of death. He, therefore, submits that the time started running from the date of death and not from the date of promulgation of the scheme. The death, in this case, occurred on 8.3.2012, he would submit that the petitioner's application for grant of compassionate appointment could normally be considered up to 7.3.2017 whereas admittedly, the petitioner's application for grant of compassionate appointment was moved on 5.9.2014 well within 5 years period. It is the rejection of that application by order dated 21.1.2015 that has been challenged in the writ petition.

Learned counsel for the petitioner has further relied by the judgment of the Supreme Court in the case of MGB Gramin Bank Vs. Chakrawarti Singh reported in 2014 (13) SCC 583.

Opposing the grant of writ, learned counsel for the respondent bank submits that the scheme does not apply to the petitioner's case inasmuch as the death had occurred prior to promulgation of the scheme itself. Alternatively, he submits, the petitioner's claim had been dealt with and decided earlier by order dated 17.4.2012 and nothing remained or survived to be decided thereafter.

In the decision of the Supreme Court in the case of MGB Gramin Bank (supra), the claim had been made by the dependent of the deceased employee for grant of compassionate appointment. However, during the pendency of at application for grant of compassionate appointment, a new scheme for grant of ex gratia payment came into force. It appears that the compassionate appointment was, therefore, denied. The claimant in that case then approached the High Court wherein the single judge of Rajasthan High Court reached a conclusion that the case of the claimant ought to have been considered under the scheme that was prevalent at the time of the death of the employee. Accordingly, a direction was issued for grant of compassionate appointment. The intra court appeal filed against that judgment was dismissed and thus the matter reached the Supreme Court.

The Supreme Court concluded that the application for grant of compassionate appointment ought to have been considered in accordance with the scheme that was prevailing at the time of when the decision was made thereon and not that which was prevailing on the date of the death itself when the cause of action may have arisen. Accordingly, the Supreme Court allowed the bank's appeal and reversed the decision of the High Court for grant of compassionate appointment.

In view of the aforesaid judgement of the Supreme Court, clearly, there can be no dispute to the proposition that an application for grant of compassionate appointment must be decided with reference to the scheme for grant of such appointments as may be in force on the date of the application being decided and not the scheme that may have been in force on the date of death that gives rise to the claim. However, it remains to be seen whether in the facts of the petitioners can claim the benefit of this principle laid down by the Supreme Court.

In this regard, the claim for compassionate appointment had been rejected on 17.4.2012 when there was no scheme for grant of compassionate appointment prevailing. In contrast, in the case of MGB Gramin Bank (supra), the application of the petitioner for grant of the compassionate appointment came to be decided after promulgation of the new scheme. It is undisputed, that on 17.4.2012 there was no scheme for grant of compassionate appointment. This refusal made on 17.4.2012 was based on the scheme that was then prevailing. It only contemplated a grant of ex gratia payment and family pension which has been paid to the petitioners.

The subsequent claim made by the petitioner is not a fresh claim. It is practically a claim made to review or reconsider the order dated 17.4.2012. The same cannot be allowed or granted in view of the fact that whatever rights the petitioner had claimed by his application dated 9.4.2012 stood determined on 17.4.2012 and the petitioners never challenged that order any further. On the contrary, it is on record that the petitioners were given over a cheque of Rs. 10,00,000/- towards ex gratia payment which they also deposited in their account. The contention of the petitioners that they have not utilized the said money and are willing to return it, if accepted, in fact, would dilute their basic claim that they are facing financial distress as in such situation it has to be presumed that they did not have any need to immediately utilize the amount of Rs. 10,00,000/- for five years.

Having not utilized the money received by way of ex gratia payment would not and it cannot confer any right or create an exception in favour of the petitioner against rule of equal opportunity in matter of grant of appointment to job. If the petitioners were aggrieved by the communication dated 17.4.2012 refusing compassionate appointment, it was for them to have challenged that order on whatever ground that may have existed. However, having not challenged the communication, it no longer remained open to the petitioner to seek review of the decision rejecting their claim. There is no clause in the scheme dated 5.8.2014 to reopen closed cases.

In view of the above, the second application filed by the petitioner dated 15.9.2014, though may be technically within time limit on five years contemplated under the scheme for grant of compassionate appointment dated 5.8.2014, yet, in view of the fact that the petitioner's claim stood determined much before that date and the same had attained finality, it did not remain open to either move that application or seek re-decision in the matter. In fact, the second application was wholly misconceived.

The financial and other hardship claimed by the petitioner cannot be doubted. However, at the same time, in matters of compassionate appointment, the Court cannot be moved to create an alternative mode of recruitment. Compassionate appointment is an exception to the general rule of recruitment through an open competitive selection process. The exception has to enforced/applied strictly in accordance with the Rules and Regulations and not on notions of sympathy. It cannot be lost sight of that for every compassionate appointment granted there is an implied denial of equal opportunity to appointment to those unknown yet deserving candidates whose claim gets denied without consideration, which may also include that of a candidate who may be more needy and who may have fought his circumstances to gain eligibility. If given an opportunity he may be found to be more deserving than the person seeking compassionate appointment.

In the instant case, the application of the petitioner for grant of ex gratia payment has been allowed after the rejection of the application for grant of compassionate appointment, in accordance with the scheme that was prevailing at the relevant time. The same has not been challenged at any time. The second application made thereafter is misconceived. It has been rightly rejected. The writ petition lacks merit and is dismissed. No order as to costs.

Order Date :- 2.11.2017

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