Vishal Kumar Balmiki vs Punjab National Bank Thru G.M. ...
2023 Latest Caselaw 11691 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

	  A.F.R.
 
	Court No. - 7
 
Case :- WRIT - A No. - 31682 of 2018
 
Petitioner :- Vishal Kumar Balmiki
 
Respondent :- Punjab National Bank Thru G.M. Personnel Admin.Division Andors
 
Counsel for Petitioner :- Sangam Lal Pandey
 
Counsel for Respondent :- Prashant Kumar,Gopal Kr.Srivastava
 

 
Hon'ble Abdul Moin,J.

1. Heard learned counsel for the petitioner and Sri Gopal Kumar Srivastava, learned counsel appearing for the respondent- Bank.

2. Instant writ petition has been filed praying for the following main reliefs:-

"(i) a writ, order or direction in the nature of certiorari quashing the order dated 02.05.2018 passed by the opposite party no. 1 as communicated by the opposite party no. 2, contained in Annexure No. 1 to the writ petition with consequential benefits;

(ii) a writ, order or direction in the nature of mandamus commanding the opposite parties and directing them particularly the opposite party no. 1 to consider the claim of the petitioner for appointment on compassionate ground on the post of Clerical Cadre, as submitted vide application dated 14.08.2017, contained in Annexure No. 4 to the writ petition and issue necessary orders in this regard."

3. At the very outset, learned counsel for the petitioner states that he is confining his claim for compassionate appointment to a Class IV post. The aforesaid statement is recorded.

4. The case set forth by the petitioner is that his father who was employed as a Sweeper in the respondent- Bank died in harness on 03.07.2017. The petitioner claims to have submitted an application for grant of compassionate appointment in August, 2017 which was processed but subsequently the same has been rejected vide order dated 02.05.2018, a copy of which is annexure 1 to the writ petition. The ground which emerges from the order of rejection dated 02.05.2018 is that the petitioner had been called for the brief interface for the job in clerical cadre as SWO (Single Window Operator-A) but he was not found suitable for the said post. The detailed grounds as to why the petitioner has not been found suitable have been indicated in the counter affidavit filed by the Bank by annexing an order dated 27.04.2018, a copy of which is annexure C3 to the counter affidavit from which it emerges that upon conduct of the brief interface in order to assess the suitability of the petitioner for the proposed job it was found that the candidate/ petitioner is not having any knowledge of computer and thus it was opined that the petitioner was not suitable for the job in clerical cadre and hence his claim has been rejected vide order impugned dated 02.05.2018.

5. The contention of learned counsel for the petitioner is that when he applied for compassionate appointment under the respondents, his claim should have been considered sympathetically by the respondents and his candidature should not have been rejected in a pedantic manner on the ground that he was not found suitable in an interface having no knowledge of computer. The other argument of learned counsel for the petitioner is that when the petitioner is seeking compassionate appointment as such, even though the respondents have rejected his claim for a Class III post but his candidature could also be considered on a Class IV post on which he may be found suitable and eligible.

6. On the other hand, Sri Gopal Kumar Srivastava, learned counsel appearing for the respondent Bank argues that a circular dated 25.09.2014, a copy of which is annexure C1 to the counter affidavit, is a scheme for compassionate appointment for a dependent family member of deceased employee. It is argued that the case of the petitioner was considered for a Class III post but he was not found suitable and hence his claim was rejected vide the order dated 2.5.2018. It is further contended that as per clause 7 of the scheme, the posts to which the appointment can be made are both clerical and sub staff cadre. As per Sri Srivastava, Sub Staff cadre are the posts in the category of Class IV which include peon/sweeper etc. Placing reliance on Clause 8 of the said policy, it is contended that Clause 8.2 categorically provides that an applicant for compassionate appointment should be eligible and suitable for the post in all respect under the provisions of the relevant recruitment rules.

7. Reliance has also been placed on the relevant recruitment rules, a copy of which has been passed to the Court and has been kept on record, the High Court being a Court of record, to contend that for peons in subordinate cadre, the qualification prescribed is class tenth and twelfth standard and the graduate candidates are not eligible to be selected and the petitioner being a graduate is not eligible for a Class IV post/peon/sub staff.

8. The argument of Sri Srivastava is that admittedly the petitioner is a graduate and thus keeping in view the recruitment rules, a graduate is not eligible for a Class IV post as such, there is no infirmity in the respondent-Bank in not having considered the petitioner against the Class IV post and the petitioner not having been found suitable for a Class III post, his candidature has consequently been rejected.

9. In this regard, Sri Srivastava has placed reliance on the judgments of this Court in the cases of Endra Naryan Rajpoot and 11 Ors Vs. State of U.P and ors passed in Writ Petition No. 1709 (SS) of 2017, Kartikey Vs. State of U.P and Ors passed in Special Appeal No. 229 of 2016, Alok Kumar Misra Vs. State of U.P passed in Writ Petition No. 6655 (SS) of 2016 as well as the judgment of the Apex Court in the case of State of Punjab and ors VS. Anita and Ors reported in (2015) 2 SCC 170.

10. Heard the learned counsel appearing for the contesting parties and perused the records.

11. From a perusal of records it emerges that the petitioner's father was working as a Sweeper in the respondent- Bank who died in harness on 03.07.2017. The petitioner staked his claim for compassionate appointment under the relevant rules and policy of the bank. The petitioner being a graduate was called for an interface by the bank but the bank did not find the petitioner suitable for being appointed in the clerical cadre and thus his claim for compassionate appointment has been rejected, vide order dated 2.5.2018.

12. After perusal of records and the reasons as have been assigned by the respondents in the impugned order dated 02.05.2018 read with the order dated 27.04.2018 it emerges that in the brief interface in order to assess the suitability of the petitioner, it was found that the petitioner is not having any knowledge of computer and thus his claim was rejected. The Court does not find any reason to interfere with the order by which the claim of the petitioner has been rejected in the clerical cadre more particularly when the prospective employer i.e Bank has itself not found the petitioner suitable for appointment.

13. Whether the petitioner can also be considered for appointment in the sub staff cadre which pertains to Class IV post is next the question to be decided by the Court.

14. The respondent- Bank has issued a policy for compassionate appointment dated 25.09.2014. The relevant provisions of the policy are reproduced below :

"1. NAME OF SCHEME:

The Scheme is to be called the "Scheme for compassionate appointment to a dependent family member of a deceased employee/ employee retired on medical grounds due to incapacitation before reaching the age of 55 years.

2. OBJECT OF THE SCHEME:

To enable family of a deceased employee/employee retired on medical grounds due to incapacitation before reaching the age of 55 years, tide over the sudden financial crisis.

4. COVERAGE

4.1 To a dependent family member of a permanent employee of the Bank who-

(a) dies while in service (including death by suicide)

(b) is retired on medical grounds due to incapacitation before reaching the age of 55 years. (Incapacitation is to be certified by a duly appointed Medical Board in a Government Medical College/ Government District Head Quarter Hospitals/ Panel of Doctors nominated by the Bank for the purpose).

(4.2) For the purpose of the Scheme "employee" would mean and include only a confirmed regular employee who was serving full time or part-time on scale wages, at the time of death/retirement on medical grounds, before reaching age of 55 years and does not include any one engaged on contract/temporary/casual or any person who is paid on commission basis.

7. POSTS TO WHICH APPOINTMENTS CAN BE MADE

7.1 The appointment shall be made in the clerical and sub-staff cadre only.

8. ELIGIBILITY

8.1 The family is indigent and deserves immediate assistance for relief from financial destitution; and

8.2 Applicant for compassionate appointment should be eligible and suitable for the post in all respects under the provisions of the relevant Recruitment Rules."

15. Perusal of the said policy which is called Scheme for compassionate appointment would indicate that the scheme is titled as " Scheme for compassionate appointment to a dependent family member of a deceased employee/employee retired on medical grounds". Clause 2 of the object of the scheme is to enable family of a deceased employee/employee retired on medical grounds due to incapacitation before reaching the age of 55 years, tide over the sudden financial crisis. The coverage of the policy, as per Clause 4, includes dependent family member of a permanent employee of the Bank who dies while in service. Clause 7 of the Policy indicates the posts in which appointment can be made which is both clerical and sub staff cadre. The eligibility as per Clause 8. 2 is that the applicant for compassionate appointment should be eligible and suitable for the post in all respects under the provisions of the relevant recruitment rules.

16. Once the object of the scheme itself is to enable the family of the deceased employee to tide over the sudden financial crisis on account of the death, consequently, Clause 8 of the scheme would have to be understood in the context of the scheme for compassionate appointment itself i.e to tide over the sudden financial crisis. Once the petitioner is admittedly a graduate obviously he would be Class X and Class XII pass and consequently, he would be eligible for appointment as a peon in the subordinate cadre or the sub staff cadre.

17. The argument of Sri Srivastava while not considering the claim of the petitioner for a sub staff cadre is that as per Clause 8.2, the petitioner should be eligible and suitable for the post in all respect under the provisions of the relevant recruitment rules and the relevant recruitment rules specifically provide that the graduate candidates are not eligible. As already indicated above, the scheme contemplates appointment on compassionate grounds in order to tide over the sudden financial crisis. Obviously, the recruitment rules are to be followed whereby a higher qualification is not be taken into account while making direct recruitment. Here, the case is not one of direct recruitment but is of compassionate appointment. The petitioner is a graduate and the respondents, as per their argument, are excluding the candidature of the petitioner for being considered on a Class IV post/peon in subordinate cadre/sub staff cadre solely on the ground that the recruitment rules carry the legend of graduate candidate not being eligible. In the view of the Court the said condition in the recruitment rules would only be applicable with respect to where the respondents are making direct recruitment and not on compassionate grounds. This would be apparent from the fact that Clause 8.2 of the policy provides that the person should be eligible and suitable for the post and when seen in the context of the scheme being applicable for the purpose of compassionate appointment, the same would obviously entail the petitioner to be eligible as per the recruitment rules for a Class IV post meaning thereby that he would have to have the qualification of Class Xth or Class XIIth or equivalent and by no stretch of imagination can the respondents be allowed exclude a graduate candidate for the purpose of compassionate appointment on sub-staff cadre as the same would run against the policy of providing compassionate appointment to tide over sudden financial crisis.

18. So far as the judgments over which Sri Gopal Kumar Srivastava, learned counsel appearing for the respondent- Bank has placed reliance, suffice it to say that the judgments of Endraa Narayan Rajpoot (supra) & Alok Kumar Mishra (supra) pertain to cases where the persons were staking their claim on the basis of an advertisement issued by the Commission i.e for the purpose of direct recruitment and the said cases did not pertain to compassionate appointment. So far as the Division Bench judgment in the case of Kartikey (supra) is concerned, the same also does not pertain to compassionate appointment and thus in the view of the Court none of the three judgments would have any applicability or would be attracted to the facts of the present facts case. So far as the judgment of the Apex Court in the case of Anita (supra) is concerned the same again pertains to a case of direct recruitment and not to compassionate appointment. Accordingly, none of the aforesaid judgment have any applicability in the facts of the instant case.

19. Keeping in view the aforesaid discussion, the writ petition is disposed of with the direction to the respondent no. 3 i.e Zonal Manager, Punjab National Bank, HRD Section, Zonal Office, Gomti Nagar, Lucknow who is said to be competent authority or any other competent authority to consider the case of the petitioner for compassionate appointment in the sub staff cadre or against any Class IV post. The case of the petitioner would not be rejected only on the ground of he being a graduate.

20. Let such a consideration be done within a period of six weeks from the date of receipt of a certified copy of this order.

Order Date :- 19.4.2023/Pachhere/-