Allahabad High Court
Vijay Kumar vs Union Of India And 3 Others on 4 January, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2024:AHC:1884
Reserved
A.F.R.
Court No. - 7
Case :- WRIT - A No. - 7198 of 2023
Petitioner :- Vijay Kumar
Respondent :- Union of India and others
Counsel for Petitioner :- Jitendra Kumar
Counsel for Respondent :- A.S.G.I.,Yashwant Singh
Hon'ble J.J. Munir,J.
1. Heard Mr. Jitendra Kumar, learned Counsel for the petitioner and Mr. Yashwant Singh, learned Counsel appearing on behalf of the respondent-Bank.
2. The petitioner, Vijay Kumar, is the son of a deceased employee of the Prathama U.P. Gramin Bank. His father died in harness. The petitioner's claim for compassionate appointment has been rejected by the respondent-Bank by the orders impugned dated 30.06.2018 and 29.12.2022. He has, therefore, moved this Court, praying that the orders aforesaid be quashed and a mandamus issued to the respondent-Bank to consider his case for grant of compassionate appointment.
3. The facts giving rise to this petition are these:
The Regional Rural Banks Act, 1976 (for short, 'the Act of 1976') was enacted to incorporate and regulate Regional Rural Banks in the country. This was done for the purpose of developing the rural economy, particularly, that relating to agriculture, trade etc. One of these Banks was the U.P. Gramin Bank established under the Act of 1976. The U.P. Gramin Bank was a Regional Rural Bank, and, subsequently, incorporated as the Sarva U.P. Gramin Bank, Meerut. Still later, the Prathama U.P. Gramin Bank came into existence by amalgamation of the existing Sarva U.P. Gramin Bank and the Prathama Bank. The Prathama U.P. Gramin Bank is a Rural Bank, which is an undertaking of the Government of India and sponsored by the Punjab National Bank. It is the petitioner's case that all rules and regulations made by the Government of India for Public Sector Banks are applicable to the Prathama U.P. Gramin Bank (for short, 'the Bank').
4. The Ministry of Finance, Government of India by an order dated 07.08.2014, bearing DOF No.18/2/2013-IR made a scheme for compassionate appointment in Public Sector Banks and this scheme is applicable to all Public Sector Banks, including the Bank. The petitioner's father, the late Om Prakash was a permanent employee of the Bank. He was a Clerk-cum-Cashier in the erstwhile Sarva U.P. Gramin Bank. He died in harness on 25.08.2018. At the time of his demise, the petitioner's father was posted at the Gangdhari Branch of the erstwhile Sarva U.P. Gramin Bank, Meerut, which, as already said, later on amalgamated with the Prathama Bank, giving rise to its successor, the Bank. The petitioner submitted an application for compassionate appointment to the Bank on 29.10.2018 and followed up the matter with a reminder dated 22.11.2018.
5. The petitioner's claim, however, for compassionate appointment was not considered by the Bank and no result whatsoever of the decision taken, if any, was communicated. The petitioner, therefore, moved this Court by instituting Writ-A No.19314 of 2022, seeking a direction to the Bank to take a decision on the petitioner's claim for compassionate appointment. This Court by an order dated 24.11.2022 disposed of the aforesaid writ petition with a direction to the petitioner to make an appropriate application to some functionary of the Bank, described in this Court's order as respondent No.3. The specified functionary of the Bank was directed to consider the petitioner's application sympathetically and pass appropriate and reasoned orders thereon within a period of four months of the receipt of the petitioner's application.
6. In compliance with this Court's order dated 24.11.2022, the petitioner made an application along with a certified copy of the order. The date of this application is not mentioned by the petitioner; nor is it shown on the face of the document, annexed as Annexure No.7 to the writ petition. In compliance, on their part, the Chief Manager of the Bank passed the order impugned dated 29.12.2022, whereby the petitioner was informed that his claim already stands rejected by his predecessor (the then General Manager, Sarva U.P. Gramin Bank) by the impugned order dated 30.10.2018. Thus, the petitioner's application was rejected.
7. A perusal of the impugned order dated 30.10.2018 shows that the General Manager of the Sarva U.P. Gramin Bank, the Bank's predecessor, held that according to the scheme enforced in the Bank for appointment, the dependents of a deceased's employee are considered eligible in two contingencies alone: "(a) where the employee dies in harness while performing his official duty, as a result of violence, terrorism, robbery or dacoity; or, (b) the employee dies within five years of his first appointment or before reaching the age of 30 years, whichever is later, leaving behind a dependent spouse and/ or minor children." It is said in the order impugned that according to the records of the Bank, the late Om Prakash, the petitioner's father's date of birth was 22.06.1961 and he was employed with the Bank since 13.08.1986. It was observed that on the date of his demise, the deceased employee was aged 56 years and had been in the Bank's service for the past 32 years. Also, his death was not on account of any act of violence, terrorism, robbery or dacoity, while performing his official duty. For the said reason, the petitioner was held ineligible for consideration of compassionate appointment for him, under the existing scheme. By the latter order impugned, that is to say, the one dated 19.12.2022, the same position was taken, but it was clarified that the rule for consideration of compassionate appointment, applicable to the petitioner's case is the one laid down by SUPGB HRD Circular No. 16/2013, which provides for only two contingencies, where a claim for compassionate appointment is maintainable. These are the same two contingencies, which have been mentioned hereinabove.
8. It was further stated that the petitioner's claim would be governed by SUPGB HRD Circular No. 16/2013, inasmuch as subsequent orders, circulars or schemes would not apply with retrospective effect, as held by the Supreme Court in Bharat Sanchar Nigam Limited and others v. M/s. TATA Communications Limited, Civil Appeal No(S).1699-1723 of 2015, decided on 22.09.2022. There is no mention in this order about what subsequent scheme for compassionate appointment is being referred to, but apparently what the Bank intend to say is that on the date of death, the scheme that was enforced relating to compassionate appointment would apply and that was SUPGB HRD Circular No. 16/2013, above referred. This circular provided for compassionate appointment only in the two contingencies of an employee's death on duty as a result of violence, terrorism etc. or within five years of his first appointment or before reaching the age of 30 years, whichever was later, leaving a dependent spouse and/ or minor children. Since these contingencies did not apply, the scheme in force at the time of the petitioner's father's demise would not entitle him to compassionate appointment.
9. The petitioner in the writ petition says that SUPGB HRD Circular No. 16/2013 has not been provided to the petitioner and non-provision of compassionate appointment has been pleaded to be arbitrary and discriminatory. The petitioner relied upon the scheme for compassionate appointment in Public Sector Banks issued by the Ministry of Finance, Government of India vide order 07.08.2014, which he says would apply to the Bank w.e.f. the said date. The attention of the Court is drawn to Paragraph Nos.8.1 and 8.2 of the scheme issued by the Ministry of Finance. This provides for compassionate appointment, according to the learned Counsel for the petitioner, to all eligible dependents normally to be considered up to five years from the date of death or retirement on medical grounds, with an obligation upon the employer to take a decision on merits in each case. He has further drawn the attention of the Court to the meaning of an employee under Clause 1.2 of the scheme to show that the petitioner is eligible under it.
10. The submission, in substance, by the learned Counsel for the petitioner, therefore, is that the scheme issued by the Ministry of Finance, Government of India applies to the Bank w.e.f. 05.08.2014 as it has been made effective from that date by the Ministry proprio vigore, with no adoption necessary by the Bank to make it applicable in their establishment. He submits that since the petitioner's father died on 25.08.2018, the scheme for compassionate appointment issued by the Ministry of Finance, must be held to govern his rights; not SUPGB HRD Circular No. 16/2013, that was earlier applicable and provided for a limited right to compassionate appointment in two contingencies alone. The learned Counsel for the petitioner emphasized that since under the scheme dated 07.08.2014, the right to consideration for compassionate appointment is an open right, not restricted to certain contingencies and the petitioner has applied within five years of his father's demise, in fact promptly, his case could not have been rejected by the Bank, falling back upon the old scheme.
11. In the counter affidavit, the Bank has raised a plea that the scheme for compassionate appointment issued by the Ministry of Finance was adopted by the Prathama U.P. Bank for the staff of the erstwhile Sarva U.P. Gramin Bank w.e.f. 08.02.2019, and, in case of staff of the erstwhile Prathama Bank, w.e.f. 01.03.2019. Since the petitioner's father died on 25.08.2018, his rights would not be governed by the scheme for compassionate appointment issued by the Ministry of Finance, that was enforced in the Bank's establishment for the staff of the erstwhile Sarva U.P. Gramin Bank w.e.f. 08.02.2019.
12. Upon hearing learned Counsel for the parties, the first question to be determined, therefore, is if the scheme for compassionate appointment dated 07.08.2014 (w.e.f. 05.08.2014) issued by the Ministry of Finance by their order bearing DOF No.18/2/2013-IR would apply to the Bank proprio vigore or become enforceable upon the Bank adopting and enforcing it by their circular dated 10.05.2019. There is apparently nothing to show in the scheme issued by the Ministry of Finance, Government of India that it would apply to the Bank proprio vigore. Rather, it has been adopted by the Bank in terms of their circular dated 10.05.2019 with distinct and different dates for its enforcement for the erstwhile staff of the Sarva U.P. Gramin Bank and erstwhile Prathama Bank. Both the dates are retrospective. In case of the erstwhile staff of the Sarva U.P. Gramin Bank, the date of enforcement of the scheme is 08.02.2019 and in case of the erstwhile staff of the Prathama Bank, it is 01.03.2019.
13. The petitioner's father was on the staff of the erstwhile Sarva U.P. Gramin Bank and, therefore, the scheme or the model scheme framed by the Ministry of Finance, as adopted by the Bank by their circular dated 10.05.2019 would apply w.e.f. 08.02.2019. This Court finds on the material on record and the way the scheme has been adopted by the Bank that the Ministry of Finance had proposed a model scheme to be adopted by the Nationalized Banks. It was extended to Regional Rural Banks incorporated under the Act of 1976. In either case, the model scheme would be applicable upon an adoption by the concerned Bank's Board, on such modified terms, subject to which it was adopted. The date of enforcement of the scheme in a Bank, as is the case with the Bank, would be the date of its enforcement according to the Bank's decision to adopt it. Here, the circular dated 10.05.2019 adopts the scheme proposed by the Ministry of Finance for staff of the category to which the petitioner's father belonged, w.e.f. 08.02.2019. Therefore, it is held that the scheme for compassionate appointment providing for a general right to compassionate appointment for the dependent family member of a permanent employee of the Bank dying in harness, would be effective in the Bank for the class of an employee that the petitioner's father was, w.e.f. 08.02.2019. Prior to that, the rights would be governed by SUPGB HRD Circular No. 16/2013. It would be well to remember that under SUPGB HRD Circular No. 16/2013, there was no general right for compassionate appointment to a dependent family member of a permanent employee. It was restricted to two categories of death in harness mentioned in the impugned orders and the petitioner does not fall in either.
14. Now, the other issue is if the right to compassionate appointment would be governed by the scheme or the rules in force regarding compassionate appointment on the date of death of an employee or the rules or scheme in force on the date the dependent's application for consideration was moved, or actually considered by the employer. This issue has been the subject matter of much division of opinion in authority, which was considered by the Supreme Court in Secretary to Government, Department of Education (Primary) and others v. Bheemesh alias Bheemappa, AIR 2022 SC 402. In Bheemesh alias Bheemappa (supra), it was held by the Supreme Court:
"19. The important aspect about the conflict of opinion is that it revolves around two dates, namely, (i) date of death of the employee; and (ii) date of consideration of the application of the dependant. Out of these two dates, only one, namely, the date of death alone is a fixed factor that does not change. The next date namely the date of consideration of the claim, is something that depends upon many variables such as the date of filing of application, the date of attaining of majority of the claimant and the date on which the file is put up to the competent authority. There is no principle of statutory interpretation which permits a decision on the applicability of a rule, to be based upon an indeterminate or variable factor. Let us take for instance a hypothetical case where 2 Government servants die in harness on January 01, 2020. Let us assume that the dependants of these 2 deceased Government servants make applications for appointment on 2 different dates say 29.05.2020 and 02.06.2020 and a modified Scheme comes into force on June 01, 2020. If the date of consideration of the claim is taken to be the criteria for determining whether the modified Scheme applies or not, it will lead to two different results, one in respect of the person who made the application before June 1, 2020 and another in respect of the person who applied after June 01, 2020. In other words, if two employees die on the same date and the dependants of those employees apply on two different dates, one before the modified Scheme comes into force and another thereafter, they will come in for differential treatment if the date of application and the date of consideration of the same are taken to be the deciding factor. A rule of interpretation which produces different results, depending upon what the individuals do or do not do, is inconceivable. This is why, the managements of a few banks, in the cases tabulated above, have introduced a rule in the modified scheme itself, which provides for all pending applications to be decided under the new/modified scheme. Therefore, we are of the considered view that the interpretation as to the applicability of a modified Scheme should depend only upon a determinate and fixed criteria such as the date of death and not an indeterminate and variable factor.
20. Coming to the case on hand, the employee died on 8.12.2010 and the amendment to the Rules was proposed by way of a draft notification on 20.06.2012. The final notification was issued on 11.07.2012. Merely because the application for appointment was taken up for consideration after the issue of the amendment, the respondent could not have sought the benefit of the amendment. The Judgment of the Division Bench of the Karnataka High Court in Akkamahadevamma on which the Tribunal as well as the High Court placed reliance, was not applicable to the case of compassionate appointments, as the amendment in Akkamahadevamma came as a result of the existing rule being declared to be ultra vires Articles 14 and 16 of the Constitution."
15. Following the decision in Bheemesh alias Bheemappa, I had occasion to consider the issue in Bechan Giri v. Union of India, 2023 SCC OnLine All 441. In Bechan Giri (supra), I held:
"29. Here, there is no issue that in the Scheme in question, there is no provision at all about consideration of pending applications for compassionate appointment made prior to the introduction of the Scheme w.e.f. 15th March, 2019. This is logically so because the present case is not one where there was apparently an older scheme granting some kind of limited right to a consideration for compassionate appointment in force or a right to an ex-gratia payment, whereunder an application could be made by the dependent of a deceased employee. What appears from the facts here is that prior to 15th March, 2019, there was no scheme at all in the establishment of the respondent Bank in force extending any kind of a right to compassionate appointment, howsoever limited or circumscribed. The right to compassionate appointment upon introduction of the Scheme w.e.f. 15th March, 2019 was a new found right. In the absence, therefore, of any provision in the Scheme for whatever reason to provide rights for dependents of an employee, who died prior to its introduction, asking for compassionate appointment, there could be no right to compassionate appointment. It has already been pointed out that the right to compassionate appointment is not an inherent right, but one that flows from a Rule or Scheme being in force at the time of the death of an employee in harness. There could be more reason to supply in aid of that interpretation. Once it is held that the right to compassionate appointment is not inherent, but the creature of a Rule, the right of whatever kind it is, originates and culminates on the date of death of the employee in harness. There is no fact surviving the death of an employee in harness on the foot of which, a Scheme or Rule for compassionate appointment introduced at a later date, may afford the dependent a right to consideration. Of course, that kind of a right may arise if the Scheme provides for that right on its own terms. Here, the words employed in Clause 8.1, or for that matter Clause 8.2 of the Scheme, do not envisage cognizance of cases of dependents, where death of an employee in harness has taken place before the Scheme was enforced in the Bank. The employment of the expression in Clause 8.1 "normally be considered upto five years from the date of death" refers to the period of five years of death on a date when the Scheme was already in force in the Bank; not five years or a little short of that time antedating the introduction of the Scheme."
16. Like the case in Bechan Giri, in the scheme, that was introduced vide circular dated 10.05.2019, the retrospective operation for an employee of the petitioner's father's class is limited to 08.02.2019, whereas the petitioner's father passed away on 28.08.2018. On the date that he died, therefore, the scheme providing for a general right to compassionate appointment had not come into force. On that date, the scheme in force provided for compassionate appointment in two contingencies mentioned in the impugned order, which are not attracted to the petitioner's case at all. The petitioner's father having died before the date on which the new scheme for compassionate appointment enforced through circular dated 10.05.2019, had become effective i.e. 08.02.2019, the petitioner cannot claim a right to compassionate appointment under the Finance Ministry's scheme or the circular dated 10.05.2019. He had, in fact, no right to compassionate appointment, as rightly held by the Bank.
17. In this view of the matter, there is no force in this writ petition. It is, accordingly, dismissed.
18. There shall be no order as to costs.
Order Date :- 04.01.2024
Anoop
(J.J. Munir, J.)
